The basis of human rights is to protect one’s dignity and life. An atrocious crime like rape is a grave violation of this. It is a barbaric act that not only harms the victim physically but also causes mental agony to the victim and her family and the faults in our judicial system add to this severe ordeal of the victim. The prolonged trial, significantly because of lack of fast-track courts and low strength of judges causes a great delay in justice to the victim. But even this waiting doesn’t assure justice to the victim as is prevalent by the low rate of conviction over the past decade. The victim not only goes through a great deal of mental and social suffering because of this prolonged trial but is denied justice in the end.
The Criminal Amendment Act, 2013(hereafter Nirbhaya Act) broaden the meaning of rape and consent under S.375 of India Penal Code, 1860 (hereafter IPC) and provided for increased punishment. Several provisions of the Code of Criminal Procedure Act, 1973 (hereafter CrPC) and Indian Evidence Act, 1872(hereafter IEA) were also amended to ease the process of police investigation and trial regarding rape cases. But despite all these changes, true and fair justice for a rape victim seems like a farfetched idea even today because of the inadequacies in our current justice system.
The fallacies in our laws regarding rape have been brought to light from time to time and finally amended by the Amendment Act of 2013 but these faults in our judicial system are yet to be rectified.
Pendency of Cases
As per the report of NCRB, 4,05,861 cases of crime against women were reported in 2019 showing an increase of 7.3% over 2018. Out of these cases, 7.9% were rape cases i.e. 32033 cases reported in 2019.
Total rape cases under investigation in 2019 were 45536, out of which 13480 were pending from the previous year. Out of these previous year’s cases, 6605 were charge-sheeted and 18243 out of current year cases while 14961 were still pending investigation at the end of the year. So a total of 24,848 cases were sent for trial in 2019 but 1,37,893 cases were pending trial from the previous year. A total of 1,62,741 cases were pending for trial in 2019, out of which trial of 16,701 were completed and 1,45,632 were still pending trial at the end of the year. The pendency rate of trial is 89.5% while the conviction rate is merely 27.8% as of 2019.
In courts of metropolitan cities, 15587 were pending trial from the previous year and 2838 were sent for trial in 2019. Out of these 18425 cases, trial was completed only of 1244 cases and 17145 were still pending trial at the end of the year, making the pendency rate in metropolitan cities 93.1.
The pile of cases keeps on increasing every year which shows the inefficiency of the judiciary in deciding cases.
Fast Track Courts
Fast track courts (FTCs) were first proposed by the 11th Finance Commission, in order to ensure speedy disposal of long-standing cases and were first set up in the year 2000. The POSCO Act of 2012 mandated the establishment of FTCs in each district to deal with rape cases. But despite this, actual efforts were not taken by state authorities to do until the brutal Delhi gang-rape case which sent the whole country into shockwave and required immediate actions by state authorities.
The Nirbhaya Act amended S.390 of CrPC, according to which proceedings shall be conducted from a day-to-day basis and the trial of offences under Section 376 and 376-D must be completed within 2 months from the date of filing the charge sheet.
As of 26 June 2019, only 581 FTCs were functional as per the report of the Ministry of Law and Justice. In July 2019, the Centre started the initiative to establish 1023 fast-track special courts (FTSC) to dispose of 166,882 pending cases of rape. Despite this order, there are some states that do not have a single FTC, only 16 states and Union Territories (UTs) have joined the scheme and 15 states and UTs have failed to set up FTSC. Despite the pile of pending cases, in some states, FTCs are being converted into regular courts. In Karnataka, FTCs were converted into regular courts after three years of functioning and currently, there is no fast track court in the state.
This nonchalant behavior on the part of states is not aiding the Union Government in its measures to combat the heinous crimes would only lead to increasing numbers of crimes and delaying justice to the victim.
The judiciary system in our country has 19 judges per 10 lac people, on average, according to Law ministry data. It also states that the judiciary faces a combined shortage of over 6,000 judges, out of which 5,000 are in the lower courts.
The maximum strength of the Supreme Court Judges (including the CJI) is 34, and as of 7 Aug 2021, only 26 are in position, leaving 8 vacancies. With Justices RF Nariman and Navin Sinha set to retire in August 2021, vacancies will further go up to 10. According to the Ministry of Law and Justice, the strength of the High Court Judges is 1080, out of which 661 Judges are in position, leaving 419 vacancies of Judges to be filled (as of Feb 1, 2021).
Judges, in subordinate courts, are appointed after qualifying for the competitive exams. The idea for All India Judicial Services was first brought up in the year 1958 by the law commission and in 1976, Article 312 was amended to include judicial services. The latest development in this regard is that the government is in the process of finalizing a bill to establish All India Judicial Services to recruit officers for subordinate courts through an entrance test, this will help in bringing potential officers into the judiciary system which will help in speedy disposal of cases. If the subordinate courts become effective, then it will impact the overall judicial system because a better decision at a lower level will reduce the number of appeals or the time taken in appeals, and that will eventually lessen the burden of the Judiciary.
Fallacies in the Reasoning of Judges
The derogatory manner in which the courts deal with rape victims is truly problematic. Stereotypes revolving around how an Indian woman should act are not just prevalent in our society but in our judiciary system as well, especially in matters relating to sexual offences. The prejudice around rape victims in the mind of the judges is something that they apply constantly while dealing with these cases rather than applying the law.
In June 2020, Justice Krishna S. Dixit of the Karnataka High Court granted anticipatory bail to the rape accused in the case of Sri Rakesh B. v the State of Karnataka, on the reasoning that “the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep is unbecoming of an Indian woman; that is not the way our women react when they are ravished.” He also criticized the victim for not objecting to consuming drinks with the petitioner at late night and allowing him to stay with her till morning.
The recent Tarun Tejpal judgment of May 2021, is evident of how even today the views of the judges are colored by prejudice and patriarchy. Throughout the proceeding of this case, it was the victim who was put on trial instead of the accused. The victim was examined and cross-examined for a month over her past relationships, the details of her WhatsApp chats and email messages, all these were used to discredit her as a witness and to make her statements unreliable. The judge questioned the complainant on her behavior and found it unreliable to believe that she couldn’t describe the incident to her friend whom she met afterward even after she clearly expressed her state of mind at that moment.
The victim was inquired about every aspect of her personal life while no such thing was done to the accused. This shows the cruel hostile environment a rape victim has to face in a trial. Further, the judge without stating sufficient reason chose to believe the contradictory statement of a defense witness over the statement of the complainant and acquitted the accused on this basis. The judgment is full of ambiguity on reasons regarding the acquittal and fails to follow several precedents in which the Supreme Court has stated again and again that probing the character of a rape victim and questioning her sexual history is not allowed.
After the 2013 amendment, Section 114A of IEA states that when sexual intercourse is proved, then the absence of consent is to presumed if women states in her evidence before the court that she did not consent and Section 53A states that the character of the victim is not relevant to the issue of consent in rape cases. Despite these amendments, judges apply their own preconceptions in deciding these cases, resulting in the acquittal of rapists. In 2019, out of the trials completed of rape cases, 10630 were acquitted and merely 4640 were convicted. The trial for cases goes on for years and even after this rapist are acquitted because of these fallacies in the mind of our judges.
These inadequacies in the judiciary have made our current legal system of such nature in which justice is far from the reach of the victim. The inefficiency of the judiciary is as clear as day, being depicted by the increasing pile of cases and low conviction rate and it’s the need of the hour to take effective actions against these hindrances to justice for rape victims.
Some suggestive measures against these inefficiencies:
- Amendment in the examination process of the Judiciary to raise the number of vacancies so as to increase the number of judges.
- Appointment of Ad-hoc and retired judges in High Courts and Supreme Courts as per the provisions given in our Constitution.
- Establishing more no. of FTSC and annuals targets of disposal of pending cases to be achieved by them should be fixed.
- Committee to oversee that impartial spirit of judges are being upheld and retributive actions to be taken against those judges who make their subjective opinions the basis of judgment which goes against the fairness principle of natural justice.
These suggestive measures would help ease the burden of the judiciary by reducing the pile of pending cases, helping in speedy disposal of cases, and keeping a check on the manner in which rape victims and cases are dealt with by the judges. When the system will acknowledge these discrepancies and create remedies accordingly, a new better system would emerge in which justice would be served to rape victims without long delays and this will store efficiency in the Indian justice system.
About the Authors, Mumal and Naina [2019-24] are pursuing UG Law at the Institute of Law, Nirma University, Ahmedabad