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India: Legislate on Verma report

by Rajindar Sachar, 31 January 2013

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sacw.net - 31 January 2013

The demand is that all major recommendations along with that of electoral law should be given effect to simultaneously.

Justice Verma and his panelist have shown commendable sensitivity to the public concern by submitting their report in 30 days instead of the allotted 60 days, thus leaving no excuse to Parliament to avoid passing the necessary law because of paucity of time during the forthcoming parliamentary session.

The panel has rightly ruled out death penalty (which is no longer accepted in over 160 nations of the world); life imprisonment meets both the requirement of human right and adequacy of punishment. The recommendation to clarify that life imprisonment would mean for life should meet the requirement of justifiable revulsion and anger at the rapist’s conduct.

Rightly there is condemnation of Khap Panchayats self serving approach to women’s rights, the self glorification of their arbitrarily fixed rules of conduct for women on the use of mobiles, co-education, the kind of dress, music and singing and their right to marry of their own choice. Law is needed against these outmoded feudal practices to put immediate stop to these.

Though the recommendation of breach of command responsibility placed on officers in the army for the acts of their inferiors may be somewhat debatable, there is no reason why the provision for prior sanction for prosecuting the army personnel should not be deleted and further these cases should be tried before ordinary criminal courts so as to give confidence to the victims that the guilty will not escape punishment.

Though the speed at which Verma panel was constituted was rightly welcomed, public will have to keep close check to see that panel’s recommendations get legal cover in the forthcoming session of Parliament. This is because the record of the government (and I have regretfully to accept even that of courts) in this regard has not been helpful in the past. Thus Parliament, though it amended the Criminal Procedure Code to provide that in offences of rape, the trial should be completed within two months from the date of commencement of the examination of the witnesses but yet trials continue much beyond that period. Even more regrettably the amendment in 2009 requires that offences of rape are to be tried as for as possible before a court presided over by women. And yet unacceptably (and in fairness has to be conceded here the responsibility in that of the judiciary also), 4 out of 6 fast track courts formed in Delhi to try sexual offences are being presided over by male judges.

Most important recommendation and which I am afraid is not to the liking of politicians is the one relating to electoral reforms. I say this because for over a decade various chief election commissioners have been writing to both the Congress and BJP Central governments to effectuate the existing the electoral rules so that electors can cast their votes as ‘None of the above’ candidates, by amending the ballot box rules (which already gave such right to the electors) by now providing a slot in the electronic voting machine. But both parties are unwilling to do this, obviously because they are apprehensive that this will give opportunity to the voters to express their no confidence publically in their candidates.

Important recommendation

In that context I have strong misgiving whether Parliament would give effect to the most important recommendation of the panel, namely that a “legislator should be disqualified if court takes cognizance of an offence punishable with minimum of five years jail.”

I myself have been emphasising for long that the most serious menace to our electoral system is not the criminalisation of politics but the more menacing one is politicalisation of criminals. Previously the politicians used the criminals in their electoral battle, but the politicalisation of the criminals, which is now prevailing means that the criminals are sitting as the legislators.

Parties still continue to ignore the warning regarding criminal elements in our legislatures given by the Vice-President of India years back where in he said; “Most important issue of concern today is the decreasing credibility of our legislatures as effective institutions capable of delivering public good and contributing to effective formulation of laws.” Around 23 per cent of our MPs elected in 2004 ha criminal cases registered against them – over half of these cases could lead to the imprisonment for five years or more. The situation is worse in the case of MLAs, failing to discharge its two fold brief, legislate and deliberate, and that the country’s top lawmaking body had fallen short of people’s expectations.

Unless the Verma panel report really singes the conscience of the of the legislators into making a change in election law where a candidate if charge-sheeted with cognisable offence six months before the date is debarred from contesting the elections, I am afraid criminality in politics would continue and this would make a mockery of Verma panel’s recommendation of changes in a electoral law, a very strong component of the recommendations. The demand is therefore that all the recommendations along with that of electoral law should be carried out simultaneously.

As tempers stand at present BJP has threatened to disrupt Parliament work unless home minister Sushil Kumar Shinde resigns over his ‘terror’ comment. This will mean no legislative business. I am not suggesting Shinde’s resignation.

However I do feel that the government could corner BJP into letting the Parliament function if in the beginning it takes up both Verma panel report and the passing of Women Reservation Bill – in this situation BJP possibly could not dare to stall the working of Parliament and incur the wrath of all women and overwhelmingly number of people. This consensus on these two major issues will be a fitting tribute to the memory of the braveheart and to the many previous victims.

*(The writer is a former chief justice of the Delhi high court)