SUCCESS IN ADVOCACY: Positive Changes in Law in India.
The justice delivery system has also failed the disabled in many cases. A study of judicial decisions indicates that in most cases disabled victims of sexual abuse are either not examined in court or their testimony is not recorded. Even when recorded, they often do not meet legal requirements, thus making them redundant. There have also been cases earlier where testimonies given through sign language have been devalued. (1)
The public outcry following the gang rape in Delhi of a young paramedical student in December 2012, led to the constitution of the Justice J.S. Verma Committee. This three-member committee was entrusted with the task of recommending changes to criminal laws dealing with sexual assaults. This, for the first time, provided the National Platform for the Rights of the Disabled (NPRD) (2) and other disability rights organisations an opportunity to draw attention to specific concerns of women with disabilities.
Suggestions to the Verma Committee.
The NPRD, in its submissions to the Committee, highlighted the difficulties encountered by disabled women at each stage of the criminal-legal process, right from filing the police complaint to testifying in court during the trial. (3)
We pointed out that each disability has a unique issue, when it comes to experiencing sexual attacks: a blind girl is unable to see the perpetrator; a speech-impaired woman will find it difficult to communicate the agony that she has been through; a girl with an intellectual disability may be unable to even comprehend that a violation has taken place; the complaint of a woman with mental illness is generally shrugged off.
We also sought provisions similar to those existing under the rules framed under the Protection of Children from Sexual Offences Act 2012 (POCSO) to deal with adult victims of sexual assault. The rules had provision for making available the services of sign language interpreters, special educators, translators, and experts, wherever needed, depending on the needs of the victim.
We informed the Committee of the need for training/sensitisation of police officers, and judicial and medical professionals, on issues concerning women with disabilities and the violence they face; the drawing up of Standard Operating Procedures (SOP) for investigating cases of sexual assault on women with disabilities; and the need to set up monitoring and regulatory mechanisms for institutions where disabled women are lodged, given the rampant neglect and abuse within these institutions.
Finally, we flagged the need to maintain disaggregated data of sexual assaults on disabled women by the National Crimes Records Bureau. Such data would help comprehend the scale of these crimes and support advocacy work.
Amendments to Criminal Laws. The Verma Committee for the first time provided an opportunity for disability rights groups to place the issue of sexual assaults from the perspective of women with disabilities. The Committee recognised the problems faced by women with disabilities in accessing the judicial system and the need to have laws to make this possible. Many of the suggestions made by the NPRD and other disability rights organisations found reflection in the recommendations of the committee, some of which have now become part of law.
As per the amendments made to criminal laws, when a physically or mentally disabled woman lodges a complaint of rape or "outraging of modesty," such complaint shall be recorded by a woman police officer at the residence of the complainant, or wherever she is comfortable. Throughout the entire legal/judicial process, right from filing of the complaint to the recording of the statement, a special educator or interpreter, depending on the needs of the complainant, would be provided. Additionally, this entire process has to be videographed.
The Committee also recommended setting up of oversight mechanisms under the High Courts in each state to monitor institutions where disabled women are lodged. The Committee recognized that sex education must also be provided to disabled children and young people by professionally trained teachers and caregivers, to ensure their safety and holistic development. The Committee while recommending the setting up of Sexual Assault Crisis Centres at hospitals said that counsellors present in these centres should be professionally qualified to address the needs of disabled victims of sexual assault. In addition, the report of the counsellor regarding the disability of the victim should be part of the medico-legal evidence that is submitted to the court.
The amended criminal law now stipulates that the test identification parade should be carried out under the supervision of a Judicial Magistrate and it would be the magistrate's duty to ensure that the disabled victim is allowed to identify the perpetrator of the crime in whichever manner he/she is comfortable, for example, by touching or through voice identification.
Importantly, "consent" would be treated as invalid if anybody commits a sexual act on a woman who is of "unsound mind," attracting seven years imprisonment. If a woman who is of "unsound mind" is raped, it would be treated as "aggravated sexual assault" and would attract an additional three years of imprisonment. In both these cases, the term can be extended to life imprisonment and fines can also be imposed.
Challenges Ahead. While the changes to the law are positive and substantial in nature, implementation has been poor. This is substantiated by procedural and other lapses in cases that state level affiliates of the NPRD have been pursuing. For example, in a case registered by a girl who was speech impaired and intellectually disabled at the Jehangirpuri Police station in Delhi in 2013, a sign language interpreter, rather than a special educator, was requisitioned. There was also a procedural lapse when the statement was recorded at the hospital and not at the residence of the victim. In another case in 2015 in Mangolpuri in North West Delhi, where a girl with an intellectual disability was raped, no special educator was present while her statement was recorded before the Judicial Magistrate. In both these cases the Delhi Vilkang Adhikar Manch (Delhi Platform for the Rights of the Disabled), an NPRD affiliate, is providing legal support.
In another case in Denkanikotta of Krishnagiri district, Tamil Nadu, in 2015, where a hearing and speech impaired girl was raped, the victim had to be carried by her father on his shoulders for several kilometres to reach the police station and lodge a complaint. Since the police did not arrange for a sign language interpreter, our local affiliate, the Tamil Nadu Association for the Rights of All Types of Differently Abled and Caregivers (TARATDAC) (4) had to step in and arrange for one. Additionally, there were issues with regard to the manner in which the entire case was handled, which might have led to miscarriage of justice (which was prevented by the constant vigil maintained by TARATDAC). The First Information Report (FIR) did not mention gang rape; this was added only after protests.
The Way Forward. Experiences from these cases indicate that despite positive amendments to laws, constant vigilance and intervention are essential for enforcement. It also highlights the lack of knowledge and sensitivity to deal with issues related to sexual assault on disabled women and girls.
These positive changes in laws, it needs to be underlined, have come about after years of advocacy, which include representations to the State and the National Commission for Women (NCW), raising the subject at various fora, and finally before the Verma Committee.
It is essential that advocacy for the implementation of various other recommendations made by the Verma Committee be stepped up with regard to monitoring of institutions where disabled women are lodged. This has also been underlined in the Human Rights Watch Report, 2013;5 for instance, this report highlighted the importance of providing sexuality education. Thus, there is a vital need to step up the campaign for sexuality education, improving awareness among care-givers/professionals working among disabled women and the police/judiciary, both with regard to these changes as well as creating more sensitivity to the issues. Lastly, it is also important that as activists we work together with other movements, including the larger women's movement, to achieve better success.
Social Worker; Secretary, National Platform for the Rights of the Disabled
Email: email@example.com and Shampa Sengupta
Social Worker; Executive Committee Member, National Platform for the Rights of the Disabled
Notes & References
(1.) Saptarshi Mandal, "The Burden of Intelligibility: Disabled Women's Testimony in Rape Trials," Indian Journal of Gender Studies, 2013,1, https://www.academia.edu/14652706/ The_Burden_ofJntelligibility_Disabled_Womens_Testimony_in_ Rape_Trials.
(2.) NPRD is a cross-disability organisation of people with disabilities, with membership-based affiliates in various states, taking up issues for advocacy and policy intervention to realise disability rights. It has affiliates in 14 states in India with a membership of around 200,000.
(3.) Saptarshi Mandal, "The Burden of Intelligibility: Disabled Women's Testimony in Rape Trials," Indian Journal of Gender Studies, 2013,1, https://www.academia.edu/14652706/ The_Burden_of_Intelligibility_Disabled_Womens_Testimony_in_ Rape_Trials.
(4.) The Tamil Nadu Association for All Types of Differently Abled and Their Caregivers is a state level membership-based organisation working in all districts of Tamil Nadu taking up day-to-day issues of the disabled and advocating for policy change. It is an affiliate of the NPRD.
(5.) Human Rights Watch, "Treated Worse than Animals: Abuse against Women and Girls with Psychosocial and Intellectual Disabilities in Insitututions in India," 2014, https://www.hrw. org/report/2014/12/03/treated-worse-animals/abuses-againstwomen-and-girls-psychosocial-or-intellectual.
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|Author:||Sengupta, Muralidharan; Sengupta, Shampa|
|Publication:||Arrows For Change|
|Date:||Dec 1, 2017|
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