LAW MANTRA     (Think Beyond Others)

CAN THE INDIAN JUDICIARY EVER DECIDE ALL MURDER AND RAPE CASES WITHIN A FIXED TIME PERIOD?

CAN THE INDIAN JUDICIARY EVER DECIDE ALL MURDER AND RAPE CASES WITHIN A FIXED TIME PERIOD?

INTRODUCTION:

‘Justice delayed is justice denied.’[1] This is a very true fact about any judicial system. There can be no dispute over the fact that the Indian Judiciary has failed to provide for speedy and fair justice.  It is very frustrating that a murder case of year 1999[2]  of murder took thirteen years to be decided. With the Nirbhaya case,[3] this fact has been accentuated by masses. But, it also must be kept in mind that ‘Justice hurried is justice buried.’[4] Although, it is true that speedy justice is the need of the hour. But speedy justice does not mean justice arrived at in haste. And most importantly, trials for murder and rape cases, which are cognizable offences under The Code of Criminal Procedure (hereinafter “Cr.P.C”), 1973, have to be dealt with great care.  This essay seeks to answer the question raised through the topic. Keeping these conditions of the Indian Judicial system in mind, fixing a proposed time cap of a few months for dealing with rape and murder cases can be catastrophic. This essay is an attempt to explain the problems in detail and also propose solutions for the same while establishing the fact that fixing a time cap can be detrimental while deciding murder and rape cases.

 

The state of delayed justice can be summed up in Mr. Nani Palkhivala’s famous quote, “Too much of government, too little administration. Too many public servants, too little public service. Too many controls, too little welfare. Too many laws, too little justice.”[5] As stated, justice is delayed unreasonably. But it does not mean that in the pursuit of speedy justice, we compromise to arrive at decisions which are unjust and infringe the rights of the accused. This is very important; since in a criminal case, the rights of an individual which are at stake. In the mad rush for justice, we may well do a lot of injustice to innocent parties. In the words of Union Minister for Law and Justice Mr. Ashwani Kumar, there is nothing such as ‘instant justice like instant coffee’.[6] One has to be very careful about deciding such cases so that the delicate balance between speedy justice and credible justice is not disturbed. The verdict should be according to the natural principles of justice, as Mr. Kofi Annan puts it- ‘In the rush for justice it is important not to lose sight of principles the country holds dear.’[7]

Murder and rape being cognizable and non-bailable offences, there is a need for greater care while deciding such cases. The procedures for both are in accordance with the Cr.P.C except that rape trials are in-camera and may take less time than murder. Even then, fixing a time cap to arrive at a decision can be detrimental in the interests of justice. The authors would first deal with murder and then rape cases to show as to how the phenomena of fixing a time period to decide such cases can circumvent justice.

 

 

MURDER:

Murder has been defined under Section 300 of the Indian Penal Code, 1860 (hereinafter “IPC”)[8]. The Cr.P.C provides an elaborate detail about the procedure to be followed in every investigation, inquiry and trial, for every offence under the IPC, 1860.

 

THE PRE-TRIAL PROCEDURE-

The Supreme Court has viewed the investigation of an offence before the actual trial as-

  1. Proceeding to the spot
  2. Ascertainment of the facts and circumstances of the case
  3. Discovery and arrest of the suspected offender
  4.  Collection of evidence which consists of –
  1. Examination of persons and taking statements.
  2. Search of places and seizure of things necessary for trial and filing a charge sheet under Section 173. [9]

ROLE OF THE POLICE-

In most cases, FIR is not lodged instantaneously due to fear or humiliation.  Delay often results in embellishment, which is a creature of an afterthought. The FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a colored version or exaggerated story.[10] This affects the procedures adversely. It leads to difficulty in collection of evidence, especially forensics and result in loss of substantial evidence. Taking statements of witnesses and seizure of evidence takes a great amount of time. Sometimes, the Police officers refuse to lodge a complaint at the first instance. Also, filing a complaint in time does not always mean that the suspect would be arrested in time. Thus, there cannot be a specific time limit for pre-trial procedure, let alone the trial proceedings.

The Judiciary can issue guidelines for the Police to avoid unreasonable delays in the pre-trial proceedings. It has been seen that around ninety five percent of the victims of sexual assault fail to report the crime due to unfriendly procedures and harassment by the police. And, eighty percent of the witnesses turn hostile during the pre-trial procedure itself.[11] In safeguarding our freedom, the Police play a vital role. Society, for its defense, needs a well-led, well-trained and well-disciplined Police force on whom it can trust; and they should be able enough to prevent crimes. The Police, of course, must act appropriately. They must obey the rules of right conduct.[12] There is a possibility that the Police might force the convict to come up with evidence against him which is violation of Article 20(3) of the Constitution of India.[13] They must not extort confessions by threats or promises.[14] The Judiciary is duty bound to ensure that no person is forced to give self-incriminating evidence.

Thus, the Judiciary should take active measures against Police officers who do not register cases or delay the investigations. A community panel, consisting of responsible citizens who can monitor the investigation, needs to be set up so that, if there are any discrepancies, they can report it to the Judiciary. This would bridge the gap between the victims and the Judiciary. Their representatives i.e. the members of the community panel can take up the grievances directly to the Judiciary. Thus, this system would bring the victim, a step closer to speedy, yet reasonable justice.

THE TRIAL PROCEDURE-

Even if pre-trial proceedings are excluded from the judicial process and only the trial proceedings are taken into account, the procedure will still not fit into a limited time frame. The various processes that are covered under the trial proceedings can take a reasonably long time to be completed. The trial procedure in a Sessions court includes-

  1. Opening of the case
  2.  Discharge or admission.
  3. If the case is not discharged, the charges are framed and are explained to the accused. If the accused does not plead guilty, a date is fixed for examining the prosecution evidence. The evidence is checked in accordance with Section 3 of the Indian Evidence Act,[15] which involves examination of witnesses and recording their statements and documenting the evidence(s).
  4.  After the oral arguments, memorandum of arguments, hearing the parties, then comes the acquittal or non acquittal of the accused. In case of non acquittal of the accused, a similar process is undertaken again for the defense. Then only a decision is arrived at by the judge. Thus, to come to a fair decision in accordance with the procedure established by law, fixing a definite time cap is not enough. If we do so, the procedures will have to be carried out in haste, thus compromising on the fairness of the decision.[16] Also in many cases, the court also has to give adjournments and fix a new date for the trial proceedings. Even though only three adjournments can be utilized; sometimes the cases are so grave and severe that only with more adjournments can help to arrive at a conclusive decision to the case.

APPRECIATION OF EVIDENCE-

Appreciation of evidence by the Judiciary in any case may or, may not take time and; fixing a set time period means putting pressure on the Judiciary to come to a decision without giving due consideration to the evidence. Even though it is quite possible for a judge to look at all evidence and come to a decision, but will the decision really do justice to the party whose rights are being taken away by the judgment?

AVAILABILITY OF JUDGES-

The time will definitely exceed any set time frame, ideally it extends till it has actually exhausted all the Appeal provisions right up to the Supreme Court, as there is a huge backlog of cases. As of 15th March, 2012, there were 59, 368 matters pending before the Supreme Court of India.[17]

Also, there are only 10.5 judges per one million people as compared to the required 50 judges per million people as per the report of the Law Commission of India of September 2011[18]. A time cap cannot be implemented but the time can certainly be reduced by increasing the number of judges appointed as held in S.P. Gupta v. President of India and Ors[19]. It was held that under Article 216 of the Constitution of India, it is the duty of the President to appoint sufficient number of judges and also, the courts have the power to direct the Executive to do so.[20]

RAPE:

Rape has been defined under Section 375 in the IPC, 1860.[21] Rape is one of the most extreme forms of violence against women. The Declaration on the Elimination of Violence against Women[22] states-

Violence against women shall be understood to encompass, but not be limited to, the following:
(a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation

(b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution
(c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs

In India, there have been various women specific as well as general legislations to safeguard the interests of women. The Judiciary has the primary responsibility of enforcing fundamental rights through constitutional remedies.[23] But, still there have been an increasingly large number of rape and murder cases where the Judiciary has taken a number of years to come to a decision. The Hon’ble Chief Justice of India Mr. Altamas Kabir has underlined the fact that delay in disposal of such cases might be one of the factors for rise in crimes against women.[24] Not only that, it also adds to the stigma of the heinous crime and the loss of a dear one. The Priyadarshini Matto case,[25] Soumya case[26], Thangjam Manorama devi case[27] and the Nirbhaya case [28]are just few out of the thousands of rape and murder cases that have taken years to render justice. The Justice Verma committee has also urged the Judiciary to bring about changes so as to ensure quick and fair justice.[29]

As already stated in the beginning, the procedures undertaken for the decision of rape cases are the same as given in murder. But in the light of the recent Nirbhaya case, and a string of reactions from the public and the politicians alike along with the recommendations of the Justice Verma Committee, the authors would also like to point out to some of the innovative measures taken. Further, the authors would seek to give reasons as to why even these measures cannot help in deciding rape cases within any time frame as that would be unreasonable.

FAST TRACK COURTS-

In the wake of recent Nirbhaya case[30] in New Delhi, the Chief Justice of the Delhi High Court inaugurated five fast track courts and in West Bengal, eighty eight fast track courts were set up recently for dealing with all cases relating to sexual assault of women. Politicians like Ms. Sushma Swaraj have started demanding a cap of six months to deal with such cases.[31] However, there are various fallacies to this demand.

It seems in the prima facie that the fast track courts can reduce the pendency of cases. But at the same time, this also gives out a wrong message to general masses that some cases are more important than others. And even fast track courts cannot dispose of all cases within a short and limited time period as seen in the judgment of a 1997 gang rape case in Rajasthan University being delivered only in October, 2012.[32] There is already a great pressure on the fast track courts to decide cases very quickly that some cases are disposed unreasonably fast and it leads to a miscarriage of justice. Due to this, these courts are said to mete out “fast track injustice”. They convict or acquit an accused on a broad perception or hunch, that a person is guilty or otherwise. They tend not to go into the details or technicalities and are often hell bent on cutting down the evidence, overlooking detailed cross examinations to come to a decision. Thus, it would be unwise to suggest that a time cap should be fixed for all rape and murder cases looking at the unimpressive performance of the fast track courts. The fast track courts are also financially burdened as the Central government has stopped their funding as of 2012. In Brij Mohan Lal v. Union of India and Ors.[33] , the Supreme Court had allowed the Central and the State government to shut down over fifteen hundred fast track courts due to lack of funds available with the governments.  In the recommendations of J.S. Verma Committee, creating a few fast track courts will not serve the purpose of a speedy justice delivery system.[34] Legal experts also claim that fast track courts would not be able to address the underlying problems faced by the Indian legal system. According to the New Delhi based Centre for Police Research, there are 27 million pending cases in India’s lower courts.[35] An eminent jurist, Professor Mrinal Satish, Associate Professor at National Law University, Delhi, has correctly stated that innocent people would be put into prison in the emotional pursuit of immediate and instant justice.[36]

The ordinance tabled on 21st February, 2013,[37] seeks to provide for capital punishment in cases of rape leading to the death of the victim. By setting a cap of a definite time period for the trial, the accused is subjected to grave injustice as there is a wide possibility that he might be awarded a death sentence even before all the evidences and also the proper procedure has been taken care of. Thus, this is S violation of right to life and personal liberty granted by the Indian Constitution.[38] It is not enough that there should be some semblance of procedure provided by law, but the procedure under which a person may be deprived of his life or liberty should be reasonable, fair and just.’[39]  It was held in Police Commissioner, Delhi v. Registrar Delhi High Court[40] that, assurance of a fair trial is the first imperative of the dispensation of justice. Thus, if the proceedings are made time bound, it would deny the opportunity of a fair trial to the accused by not following the due procedure established by law.

CONCLUSION:

Thus highlighting the various problems above, the authors conclude that six months is too short a time period to mete out fair justice. In S.P Gupta v. Union of India[41] it was held that one of the primary duties of the state is to provide for fair and efficient administration of justice. The various problems as already mentioned above would definitely hinder the process of justice.

  1. The average and reasonable time taken for the pre-trial and the trial proceedings exceed six months. Thus to reach a just verdict, a time cap is a detriment as-
    1. Appreciation of evidence is hindered as the Judiciary is pressurized to abide by the time cap. This puts the Judiciary in a dilemma as to go with the time cap or the principles of natural justice.
    2. Investigating agencies like the Police will be pressurized and can well resort to third degree measures, corruption and can take a course against the due process established by the law. This would further deteriorate the present policing system.
  2. The fast track courts dealing with rape cases are also not the true solution due to the following reasons-
    1. They are burdened with lakhs of pending cases. This would only increase the burden on these courts, which would further degrade the quality of justice delivered.
    2. They are also in a financial problem and have no additional funds to deal with the cases that come to them.
    3. In such cases, a person’s life hangs in the balance. Such courts do not go into the details of the cases and can well convict an innocent person and award capital punishment which if carried out, is irreversible. And this would be a complete failure in administrating justice.
  3. Prescribing a time for the Sessions Court might as well bring in the problems faced by fast track courts.
  4. Also in a country like India, social boycott and harassment of the family of the victim if she is subjected to a rape causes various unavoidable problems before and during the trial. As highlighted above, some of them are-
    1. Delay in the lodging of FIRs.
    2. Difficulty in collecting evidence, especially the account of the witnesses who are hesitant to give their statements and do not want to get involved into any legal hassles.
    3. Difficulty in nabbing the accused after a considerable delay in the filing of the FIRs and many such problems.
  5. A time cap for some cases would give out a wrong signal to the people that a few cases are more important than the others. This might also draw the attention of the Judiciary from other grave cases which are of paramount importance.
  6. Also the final verdict which would come out after carrying out all the appeal provisions would definitely exceed six months, if followed diligently.

The proposed solution should not be as unviable as fixing an arbitrary time cap of a definite period of time but carrying out well thought out changes in the pre-trial as well as the trial procedures like increasing the number of judges, creating a community watchdog to reduce the unreasonably long time taken and Police reforms. The various shortcomings like that in the pre-trial and trial proceedings, the fast track courts and many other problems with the Indian Judicial system would show that fixing a time cap would lead to results contrary than expected. The contrary results here would mean ‘instant injustice.’ Fixing a time cap for dealing with these cases can be violation of the principles of natural justice. But the unreasonable delays can be reduced not by fixing a time period, but by undertaking measures already mentioned above such as reforms in the Indian Judicial system, the Police and setting up a community panel to overlook the functioning of these bodies.

Submitted by:
Deepti Bajpai(author) and K. Prasanna(co-author)
3rd Sem.
National Law University, Lucknow

ISSN: 2321-6417


[1] Brij Mohan Lal v. Union of India and Ors, (2012) 6 SCC 502 (India).

[2] State Tr. P.S. Lodhi Colony New Delhi v. Sanjeev Nanda, A.I.R. 2012 S.C. 3104 (India).

[3] Neeraj Chauhan, Dwaipayan Ghosh & Raj Shekhar, Delhi gang rape case: Victim battles for life, 3 accused held, The Times of India, Dec 18, 2012.

[4] M/S. R.N. Jadi & Brothers and Ors. v. Subhashchandra, (2007) 6 S.C.C. 420 (India).

[5] Soli J. Sorabjee & Aravind P Datar, Nani Palkhivala The Courtroom Genius, (1st ed. 2012).

[6] Maneesh Chhibber, Justice hurried is justice buried: Law Minister, The Indian Express, and Jan. 29, 2013.

[7] Sarah Lyall, In Nobel Talk, Annan Sees Each Human Life as the Prize, N.Y. Times, and Dec. 10, 2001.

[8]  The Indian Penal Code, 1860, No. 45. Acts of Parliament, 1860 (India).

[9] H.N. Rishbud v. State Of Delhi, A.I.R. 1955 S.C. 196 (India).

[10] State of Madhya Pradesh and Anr. V. Jangvali Singh And Ors. 2004 (3) MPHT 406 (India).

[11] Aditi Tandon, Anti-rape law: Clamour for Police, judicial accountability grows, The Tribune, Jan 2, 2013.

[12]  Lord Denning, The Due Process of Law, 1980 Edn. in Chap. I of Part Three.

[13] Art. 20 , INDIAN CONSTITUTION

[14]  Lord Denning, The Due Process of Law, 1980 Edn. In Chap. I of Part Three.

[15] The Indian Evidence Act, 1872, No. 1, Acts of Parliament, 1872 (India).

[16] K.V. Kelkar, Criminal Procedure, 498 (2001).

[18] Vandana Ajay Kumar, Judicial Delays in India: Causes & Remedies, 4 Journal of Law, Policy and Globalization. 16, 22 (2012).

[19] S.P. Gupta v. President of India and Ors. A.I.R.1982S.C.149 (India).

[20] INDIA CONST. art. 216.

[21]The Indian Penal Code, 1860, No. 45. Acts of Parliament, 1860 (India).

[22]U.N. GAOR, 85th plen. mtg., U.N. Doc. A/RES/48/104 (Dec. 20, 1993).

[25] Santosh Kumar Singh v. State Thr. CBI, (2010) 9 S.C.C. 747 (India)

[27] Col. Jagmohan Singh and Ors. v. State of Manipur and Ors., (2011) 6 G.L.R. 577 (India).

[28] Neeraj Chauhan, Dwaipayan Ghosh & Raj Shekhar, Delhi gang rape case: Victim battles for life, 3 accused held, The Times Of India, Dec 18, 2012.

[30] Neeraj Chauhan, Dwaipayan Ghosh & Raj Shekhar, Delhi gang rape case: Victim battles for life, 3 accused held, The Times Of India, Dec 18, 2012.

[31]PTI, Delhi gang rape case: BJP demands no mercy provision for rape-cum-murder convicts, The Economic Times, Dec 31, 2012.

[32] Bhanu Pratap Singh, JC Bose gang rape case: 8 sent to jail for 10 years, The Times Of India, Oct 27, 2012.

[33] Brij Mohan Lal v. Union of India and Ors., AIR 2002 SC 2096 (India).

[35]Amol Sharma & Vibhuti Agarwal, India Rape Case Tests Fast-Track Courts, The Wall Street Journal, Jan 25, 2013.

[36] Amol Sharma & Vibhuti Agarwal, India Rape Case Tests Fast-Track Courts, The Wall Street Journal, Jan 25, 2013.

[37] The Criminal Law Amendment Bill, 2013

[38] INDIA CONST. art. 21

[39] Hussainara Khatoon v. State Of Bihar, A.I.R 1978 S.C. 1360 (India).

[40] Police Commissioner, Delhi v. Registrar Delhi High Court, A.I.R. 1997 S.C. 95 (India).

[41]S.P Gupta v. Union Of India, A.I.R. 1982 S.C. 149 (India).

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