- According to government data, 90 rape cases are reported in Indian every day.
- According to data from high courts across the country, as of June 2019, 162,882 cases of rape are pending trial. What is more shocking is that 96% of them are under Protection of Children from Sexual Offences (POCSO) Act, which means the victim in these many cases are children.
- Fast-track courts were created for speedy trial of heinous crimes. By the end of March this year, there are 512 fast-track courts in the country.
On the intervening night of November 27 and 28, a 27-year-old veterinary doctor was gang-raped by four men and burnt to death. For a week Hyderabad police faced outrage for its apathetic response to her family’s attempt to lodge an FIR. On December 6, the four men were killed in a police encounter and at the same place where they had burnt the woman to death. Locals converged on the encounter site to fete the cops – some showered them with flowers, some offered them sweets. The social media also hailed the encounter as poetic justice.
Police said they were reconstructing the crime scene when the accused attempted to escape and were killed in the process. Most people find this theory to be untrue but even those people are happy, saying justice has been delivered. There’s a debate over if this was justice or revenge. Chief justice of India, SA Bobde, said in Saturday during the inauguration of the new building of Rajasthan High Court, that justice can never be instant and justice must never ever take the form of revenge.
Many have said that encounters should not be celebrated because vigilantism is anathema to justice. But the celebration of such killings is manifestation of country’s frustration about delayed trials and inordinate delays in execution of death sentences. Justice delayed, it is said, is justice denied. In that sense, justice is denied to victims of most rape cases because it takes years before their perpetrators are hanged even though trial courts have given them death sentences.
For understanding this, let’s rewind to December 2012.
The country erupted in protest after the Nirbhaya case, in which 23-year-old paramedic student was raped and brutally assaulted in a moving private bus by five men and a juvenile before being thrown out with her male friend. The case shook and united the nation against crime against women. For many days – at least until the woman fought for life in Delhi’s Safdarjung Hospital and Singapore’s Mount Elizabeth Hospital before her death on December 29 – there were protests, demonstrations, and candlelight vigils across the country, demanding justice for Nirbhaya.
A fast-track court began hearing the case against five men – bus driver Ram Singh, his brother Mukesh, Vinay Sharma, Pawan Gupta and Akshay Thakur – on January 17, 2013, and convicted them in September 2013. During trial, Ram Singh was found dead in his cell in Tihar Jail. The remaining four got death sentence for gang rape and murder. Then the case went to the high court for confirmation of death sentence, and to Supreme Court. Earlier this month, the union cabinet requested the President to reject the mercy petition of one of the convicts.
This December 18, it will be seven years to the case and the four men are yet to face the gallows.
The Nirbhaya case is just of the many rape cases that are reported in the country every year. According to government data, 90 rape cases are reported in Indian every day. The data of the National Crime Records Bureau (NCRB) shows there’s an increase in cases of crimes against women every year, sometimes involving girls as young as 3 years.
The Nirbhaya case brought about important changes in the rape laws in the country. The Criminal Law (Amendment) Act, 2013 (also called Nirbhaya Act) made changes in the Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure, 1973 on laws related to sexual offences. Definition of rape was expanded from the very restrictive penetration to include any form of violation of a woman’s private parts or forcing her to perform sexual acts described in Section 375 of the Indian Penal Code against her will or without her consent or consent obtained through fear or death or hurt or deceit or due to unsound mind or intoxication or when she is a minor. Rape by police officer, a public servant, armed forces personnel, management or staff of a jail, remand home, hospital, relative, guardian or teacher, during communal violence, to name a few, carry enhanced punishments. Gang rapes and rapes through abuse of dominant position by person in authority or fiduciary relationship etc were also made separate offences.
But Hyderabad case is a grim reminder that nothing much has changed on the ground. Police are still reluctant to act on time in such cases. Trials still take years to complete, and death sentence, if awarded, still takes forever to get executed.
The criminal justice system in India is plagued by backlog in courts caused by lack of sufficient judges. According to data from high courts across the country, as of June 2019, 162,882 cases of rape are pending trial. What is more shocking is that 96% of them are under Protection of Children from Sexual Offences (POCSO) Act, which means the victim in these many cases are children.
Fast-track courts were created for speedy trial of heinous crimes. By the end of March this year, there are 512 fast-track courts in the country. Union law minister Ravi Shankar Prasad said 1,123 FTCs are being set up to try rape and cases under POCSO.
‘The Death Penalty In India: Annual Statistics 2018’ report by National Law University says Madhya Pradesh, Uttar Pradesh and Maharashtra have 66 convicts awarded death sentence. In last 15 years, no convict has gone to the gallows even though 67 people were given death sentence in last two years alone. According to statistics from prison departments of the country, there are 426 convicts in Indian jails who have been awarded death sentences and whose cases are in different stages of reviews and mercy petitions.
In Nirbhaya case, the trial ended in less than a year, but seven years later, the convicts are yet to be hanged. According to Indian judicial process, a death sentence has to be confirmed by a high court in 60 days after the sentencing by trial court. If the HC upholds the sentence, the convicts get 90 days to appeal against it. If the appeal is also rejected, a special leave petition can be filed in SC in 90 days. Then there can a review petition, a curative petition and finally the mercy petition to the President. All this, sometimes, takes forever before the death sentence can be executed.
The last hanging in India in a rape case was in 2004 when Dhananjoy Chatterjee was hanged in Alipore Central Jail in Kolkata on August 14. Schoolgirl Hetal Parekh, 14, was found raped and killed on March 15, 1990, in her flat. Chatterjee was charged with choking her to death while raping her. The Alipore sessions court sentenced him to death in 1991. Over the next four years, Chatterjee appealed successively in the Calcutta High Court and the Supreme Court, and filed mercy petitions with the governor and the President. All were rejected.
It is, therefore, not surprising to see people hailing the Hyderabad encounter as justice. The judicial system has frustrated people. The disturbing reality is that society is celebrating extra-judicial killings.
The Indian Constitution and the evolution of criminal laws have taken care not to vest all powers in one person or institution. Allowing police to play judges and executioner will foster a lynch mob mentality, already discernible in hate crimes. Experts say vigilante justice cannot be the balm – it is a rot in the system that can only harm citizens and their rights further.
For delivery of justice, it is important to prove someone guilty of a crime. In Hyderabad, the four men were dead before trial. Extra-judicial killings cannot be a substitute for diligent policing and a responsive justice system. Rape trials need to be fast-tracked. We need speedy trial and, like President Ram Nath Kovind suggested during a programme in Rajasthan a few days ago, maybe do away with the provision of mercy petition for rape cases. The solution will always lie within the framework of Constitution; any paradigm outside it can never be the acceptable.