EDITED EXCERPTS FROM AN INTERVIEW
Most people have called the Justice JS Verma report pathbreaking. What about the government?
The prime minister has written to Justice Verma, Justice Leila Seth and me, thanking us for our hard work and for presenting the report in a remarkably swift timeframe. From the unmistakable terms in the PM’s letter, it is clear that the government is serious about implementing our recommendations.
Several Bills are pending in Parliament, but none defined sexuality as progressively earlier. How important was it to put it down on paper?
When people talk about sexuality, they often confuse it with gender. Sexuality is more than that; it involves the entire gamut of behaviour, feelings and emotions. Many of our conscious decisions are dictated by our gender. We could see that a clarification had to be made. Hearing the experiences of people from the transgender and transsexual communities, we understood the kind of stigma they are living with. That is a violation of their human rights. The Constitution guarantees due respect for an individual’s sexual orientation — equal protection of the law implies that too. Patriarchal societies stereotype both masculinity and femininity — it’s always body-centric, not centred on sexuality. I see sexuality as the way in which a human being fulfills himself, not necessarily through sex, but through art, music or anything else that appeals to him. Scholars agree that no individual has traits limited solely to his own gender. Also, there should not be any moral judgement on sexuality because it is an evolutionary choice for the individual’s survival.
That brings us to the Bill of Rights. You’ve said that even though the Constitution gives equal rights to all genders and all forms of sexuality, there is a need to state the obvious separately. Why do we need the Bill?
The need to state the obvious arises because it is one thing to have a Constitution, quite another to apply it in society. We don’t mind violating the Constitution in various ways; cultural prejudices often overrule our respect for human beings. We wanted to explain that rape is not just an offence against bodily integrity. The offence germinates in the way you look at women. There is a certain opacity in us, which causes a cross-section of people to fear being perceived in a certain way. We wanted to look at a framework that enables a woman to define herself beyond patriarchy. Sometimes constitutional values, if correctly translated, can perform a kind of therapeutic intervention at the social and cultural level. That is what our report attempts. Even women politicians talk about protection, but rarely about rights. We wanted to say protection is included within rights.
In the report, you have stuck to the age of adulthood as 18 years. But in cases where grievous harm has been done, will there be flexibility to make an exception?
There can be no exception in defining age. We went into this question scientifically and not on the basis of public opinion. We said, let’s not look at a 16- year-old Indian boy. Let’s look at a standard adult male from a normal background, with normal education, and see what his mental condition is. We found scientific evidence of neurological changes that occur between 16 and 18 years of age; the ego state usually crystallises at 18. Some people have faced traumatic events at childhood. I lost my father at 12, so my ability to take decisions grew stronger at 20. We realised that the normal age of adulthood is about 18. Then, we looked at Indian boys, not from the elites, and tried to see if they have got the best that society has to offer. The ability to judge does not come naturally. It is a skill that has to be taught by peers at school. Then you find poverty, lack of nutrition and direction — situations in which the adult ego state, which processes value systems, is missing. Few people know that lack of direction can cause depression. Have we as a society done our best for the less privileged so we can say everybody deserves a fair chance and the age of adulthood should be reduced to 16? On the contrary, we are breeding highly distorted young individuals in so-called juvenile homes and protection homes. They are already poor, away from their families, and not even free to take responsible decisions.
In the excerpt and testimony at the back of our report, there’s a moving account of a young girl, who had studied till Class VI and said she didn’t know if she’d get an opportunity to study again. When we said we would help her become a rocket scientist or a mathematician, she quietly said she always loved studies. We were so moved that the committee has undertaken it as an atonement of society towards its underprivileged. We had to reintegrate her with her family, whom she had not seen for five years. Her family had been told she was dead. We requested a psychiatrist to give her therapy so that her wounds are healed and her aptitude tested. We were just trying to say that the society has a major duty towards its underprivileged.
There are two alternatives before the society. One, legally speaking, is the obligation of the State. On account of massive corruption and misuse of funds, the State has failed to alleviate the poor. It has even failed to establish decent primary schools despite the Right to Education Act.
Two, what happens when the State doesn’t do its job? The alternative, according to me, is not a few NGOs and committed individuals, but a conscious society beyond the State, which starts adopting and looking after the underprivileged as part of its system. This is the only way rape and violence against women can disappear.
There is another side to the question regarding juveniles who have committed acts of grievous violence. Since the report has acknowledged that the State has failed to do its job, in the interim, what recourse should we expect for the juveniles who are not looked after and are an imminent threat to themselves and the people around them?
Justice Verma has forwarded a copy of this report to the Supreme Court for taking action from the judicial side. It is necessary, according to me, not just to have protection homes. What is important is to have qualified personnel able to detect characteristics of violence. Let me talk about gangrape in a shelter home. This will not happen if the trends are visible to an assertive worker or a psychologist who can detect it at first sight. There are many such workers in India. I strongly urge the government of India to draw from such people around the world. We have a very large population of youth and they need course correction, and it cannot happen with the ratio that exists now of a counsellor per 100 children. It is just not possible.
We need a little more interaction, a little more imagination. In cases of violence, I agree, that you might not have any option except to take them away for the safety of other children. We have stressed it in our interim measures that the court becomes the legal guardian and actually takes decisions. If the court becomes the guardian, then cases of sexual assault by caretakers would go down. The police would be on guard, and a good police officer would be able to deal with the issue in a proper way. But even judges would have to be sensitive.
When you talk about conflict areas, the other point that is being debated is AFSPA. Rape cannot be committed in the line of duty; so why should exceptions be made? Is this the one recommendation, you think, that is least likely to be accepted even though you have got a letter of assurance?
I think it might be accepted, for the simple reason that the CM of Jammu & Kashmir has welcomed it. We must not forget that assault on and subjugation of women is a common tactic in fighting insurgency. We have heartrending accounts that make it seem like we are at war with our people. Civil society everywhere, from Kashmir to Chhattisgarh, is saying there’s an alternative; people are saying, give us a chance. If one woman is wrongly dealt with, it does not just impact her, but the whole community. It is an assault on the collective consciousness. That is why we decided to go across and say this should be withdrawn. Many people are saying that the army is feeling let down, but it is not about the army at all. We are not talking about the armed forces. I personally think their ability to combat, to undertake military operations, has been severely compromised by asking them to do duties of a very different kind.
If you need to have a cadre, a dedicated lot, you must have a different kind of administrative service. In my view, a secretarylevel officer should not work in the headquarters. He should work in the villages. The younger ones can work in metropolitan towns. In areas of vulnerability, you require people with sensitivity and wisdom.
Many people are happy that the report hasn’t fallen for the clamour demanding death penalty for rapists. You said the committee did think of it as an option, but decided it was not the way to go…
It is not the way to go. It is there in the report.
Would you call the report a blueprint for smashing patriarchy?
I would say that this is a blueprint for the transformation of the society, including, of course, patriarchy. This is a blueprint for equality.