Between Revolution And Reform

The J. S. Verma Committee report is being hailed as the Magna Carta of women’s empowerment. Breathtakingly comprehensive in its approach, it encompasses all aspects of gender based violence and harassment— from garden variety misdemeanour to aggravated rape— that women are subject to, qua women .The UN has declared it to be a forward looking document, and no one who has read it in its entirety can fail to notice the revolutionary fervour of the proposals. 

But, “revolution” as Bernard Shaw said, “does not end tyranny; it merely shifts the burden to other shoulders.” My hunch is that some of the proposals are so drastic that men in uniform have some very genuine reasons to be worried about. The report which is at pains to debunk the stereotyping of women happily accepts the stereotype about men in uniform. It is true that some men in uniform commit rape— as indeed other men do— but it cannot be raised to a universal rule of perception. 

So penetrating and so far reaching is the stern gaze of the report that even after inserting a new section for enhanced punishment to the actual participants in custodial rape, the new section 376 F Offence of breach of command responsibility, recommends incarceration for those in command of these men.

“Whoever being a public servant in command control or supervision of the police force or armed forces,……….fails to exercise control over persons under his or her command, control or supervision and as a result of such failure offences under sections (from eve teasing to aggravated rape) are committed by persons under his or her command control and supervision shall be guilty of the breach of command responsibility, where

Such public servant knew or should have known owing to the circumstances that the men under his control, command or supervision would commit such offence,

Such public servant failed to take necessary or reasonable measures to prevent or repress the commission of such an offence.

Any police or armed force organization is hierarchical in structure and the control and command of the force is mediated through various levels of functionaries. In case of Police, the ultimate control, supervision and command vests with the state government. So if a Jawan commits rape in a remote field situation will the section commander be hauled up or will it be platoon commander or would the DG along with the whole ensemble be condemned?. Men in uniform, apart from death on active duty, will now be exposed to another occupational hazard - the disgraceful prospect of imprisonment for up to 10 years for “passive rape”.

Conventionally, any crime must satisfy the twin requirements of a criminal act (actus reus), and criminal intent (mens rea) but in the instant case the mere incidence of the crime incriminates the command structure. Perhaps the omission to “prevent or repress” rape itself qualifies as actus reus. As everyone knows the crime of rape needs no preparation and the culprit can commit this crime with utmost frugality- anywhere, any place, any time. So what are the symptoms to watch for? What circumstance or season is most conducive for encouraging rapist tendencies in men in uniform and does it affect everyone equally? Is there a calculus for anticipating criminal behaviour, a predictive theory at the disposal of the officer in command to “take necessary or reasonable measures to prevent or repress the commission of such an offence?”

The introduction of vicarious liability in a criminal offence is in itself a bit of a rarity but why should not the same underlying principle be applied uniformly and to other crimes as well? If a student commits rape on the campus or a sportsman commits rape in sporting arena, or minor sons indulge in such acts in domestic settings why should not teachers, captains, fathers and others be made similarly responsible After all parental authority or the authority of a teacher or a captain is no less compelling.

It is perhaps because of such reasons that this suggestion was "not accepted" by the cabinet while issuing the Ordinance.

It will be germane to the discussion to review our experience with section 304 B of the IPC enacted to specifically combat the dowry deaths in the aftermath of a spurt of reports of dowry deaths. Over the years, along with genuine cases of dowry deaths, thousands of malicious cases have been reported and as many numbers of innocent relatives of the bridegroom have languished in jails. Such was the mental climate that police seldom exonerated people once their name figured in the FIR and the judges were equally parsimonious in granting bail. The whole criminal adjudication system seemed to have taken a vigilantist hue. Happily the courts have become more liberal and the police more circumspect in the light of past experience. Happier still the social evil of dowry has taken a drastically downward trend. Not because of the law but because boys and girls are increasingly choosing their spouses. Even where marriages are arranged the children insist on no dowry. In the meanwhile this experiment has irreparably shattered the lives of many, including old men and women.

The atrocities against scheduled caste and tribes similarly have not seen a radical decline because of the specific act (under which, incidentally, Ashis Nandy was charged recently). But such egregious misuse has come to notice wherein an IG in a state police force, not satisfied with the vast disciplinary powers over his lowly subordinate, lodged a complaint against his orderly accusing him of having committed an atrocity against him under this act.

The world is an unjust place for women no doubt, but the remedial measures must not overlook the triad of culpability, legality and proportionality. You cannot run a society solely by decrees , the gradual change in mental climate and social ethos is a necessary accompaniment to reforms and that is the surer empowerment . 

Manoje Nath retired as DGP, Bihar.