Home Womens Rights Initiative news on womens rights violence against women Time for a relook at the law

Time for a relook at the law

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2012-12-29T101755Z-1534746476-GM1E8CT1ES101-RTRMADP-3-INDIA-RAPE-JPG_051823R SEDHURAMAN IN THE TRIBUNE

Trial courts generally take years to conclude proceedings in rape cases. These can be wrapped up in a few months in fast-track courts. The Supreme Court has made it clear that even under existing laws, trial courts are bound to hold day-to-day hearings and complete the trial within two months. Legal provisions have to be deterrent.

The recent gangrape and murder of a physiotherapy student in Delhi has stirred the collective conscience of the people and brought them together to demand deterrent laws that provide for stiffer punishment and fast-track courts to exclusively hold day-to-day trial in such cases to render quick justice to the victims by handing out adequate punishment to the accused, including death penalty and chemical castration.

This has resulted in a nation-wide debate on the changes required in the existing laws and the trial procedure in order to effectively deal with cases involving crime against women and send out a strong message to potential offenders that there is no way they can go scot-free after committing the heinous offence.

In order to effectively contribute to the debate, The Tribune thought it necessary to explain to its readers the existing laws, the changes that are necessary and under way and their merits and demerits; and help put in place an effective legal and judicial mechanism that would go a long way in enabling women to enjoy their fundamental right to lead a life of dignity and making the nation a safer place.

What constitutes rape?

Sections 375 and 376 of the Indian Penal Code (IPC), 1860, define rape as sexual intercourse against a woman’s will, without her consent, after obtaining consent through threat, after deceitful marriage, with consent obtained after sedation, and with or without consent of a girl under 16 years of age.

For proving rape, the duration of intercourse is immaterial; just proving penetration is sufficient.

Punishment

Minimum: Seven years in jail. If the court awards a sentence for less than seven years, it has to specify the reason (s) in the judgment.

Maximum: 10 years to life imprisonment

Marital rape: Term may extend to two years

Gangrape

According to Section 376(2)(g), IPC, when a woman is raped by one or more persons in a group, she will be deemed to have been gangraped. All the members of the group will face gangrape charges irrespective of the fact that some of them were merely present along with the rapists.

Punishment

Minimum: Rigorous imprisonment for 10 years. If the court awards sentence for less than 10 years, the reasons have to be specified in the judgment.

Maximum: Life sentence

Rape by officials

This would mean a police officer committing rape within the police station; police officer raping a woman in his custody or of his subordinate; staff committing rape on inmate of jail, remand home, hospital or other such institutions.

Other forms

Committing rape on a woman knowing her to be pregnant; raping a woman under 12 years

Punishment

Minimum: RI for 10 years

Maximum: Life term

The trial

In rape cases, police files the chargesheet in the Sessions Courts after completion of the investigation. The Sessions Court has the power to reject the chargesheet if it feels prima facie no offence is made out on the basis of the statements of witnesses recorded by the police and other supporting documents like medical reports. On the other hand, if the court decides to take cognizance of the chargesheet, it orders the supply of all documents to the accused and directs the accused to file his or their response to the charges. After giving opportunities to both the prosecution and the accused to argue in the court, the trial court decides either to drop the case or ask whether the accused would plead guilty or innocence. If the accused pleads guilty, the quantum of punishment would be pronounced without framing charges or holding trial. If the accused pleads innocence, the court would frame specific charges and begin the trial. The trial court can add further charges in addition to those mentioned in the chargesheet or drop some of them.

During the trial, the rape victim’s statement is given significant weightage as the Supreme Court has time and again held there is no reason to disbelieve the victim as normally she would not wrongly implicate innocent persons at the cost of her honour. However, the accused could assail the victim’s version by citing credible reasons and producing evidence.

The prosecution would lead its own evidence during the trial, while the accused is given the opportunity to cross-examine the prosecution witnesses. The accused is also given an opportunity to lead evidence but in most cases he does not lead evidence.

The accused is free to challenge in the High Court the decision of the trial court to frame charges against him. Earlier, the High Courts used to summon the original records from the trial courts if they decided to hear the plea of the accused and this resulted in halting the trial proceedings in the absence of records. Realising that this causes delays in concluding the trial, the High Courts no longer call for trial court records while entertaining the plea of the accused.

Victim’s character

Earlier, trial courts were reluctant to convict the accused in cases where the rape victims’ character was under a shadow. But this is no longer the position as the Supreme Court has ruled the victim’s vices could not be used as a licence to violate her modesty.

Rape-cum-murder

In cases similar to the rape of the 23-year-old medical student in a moving bus in Delhi on December 16, the victims’ statements or dying declarations are treated as a crucial piece of standalone evidence for convicting and sentencing the accused.

16586_10151188594586342_1275802587_nDeadline for concluding trial

At present, trial courts normally take years to conclude the proceedings in rape cases and deliver judgments, either acquitting or convicting the accused. Trial is concluded expeditiously, sometimes within a few months, only if the accused is tried in fast-track courts. There is a general feeling even among lawyers that there is no deadline for the trial courts to dispense justice in such cases.

However, the Supreme Court has, in a recent judgment, clarified that even under the existing laws the trial courts are bound to hold day-to-day hearings in rape cases and complete the trial within two months. Under Section 309 of the Criminal Procedure Code (CrPC), “the inquiry or trial (in rape cases) shall, as far as possible, be completed within a period of two months from the date of commencement of the examination of witnesses,” an apex court Bench pointed out last month, citing some of its earlier verdicts.

Further, once the trial commences “the proceedings shall be held as expeditiously as possible” and particularly after the examination of witnesses begins “the same shall be continued from day to day until all the witnesses in attendance have been examined”.

Existing legal provisions clearly mandate that trial courts can adjourn the hearing in such cases only under unavoidable circumstances and that too after recording the reasons in each order. Also, “when the witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing”. The Supreme Court also made it clear that trial courts could not blame the poor infrastructure facilities for avoiding the deadline set for completion of trial.

What after trial court verdict

After the trial court verdict, it is open to both the accused and the police to challenge it first in the High Court and subsequently in the Supreme Court. While the police can challenge the acquittal or lesser punishment, the accused can challenge the conviction and the higher punishment. This process is time consuming as both the High Courts and the apex court have heavy workload.

Judicial vacancies, mounting arrears

The 21 High Courts in the country have a sanctioned strength of 895 judges whereas there are only 613 judges, with one-third of the posts lying vacant. As many as 43 lakh cases are pending in these courts, translating into over 7,000 cases for each judge.

Similarly, more than 65,500 cases are pending in the Supreme Court (as on December 1, 2012) and there are only 27 judges against a sanctioned strength of 31. This works out to about 2,500 cases per judge. The situation is worse in the lower judiciary where more than 30 million cases are pending. Both the Supreme Court and the Law Commission of India have recommended a nearly five-fold increase in the judge-population ratio – from the present 10 to 14 judges per million to 50 judges per million.

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