Vagaries of our justice system

As we approach the third anniversary of the gruesome gangrape and murder of the paramedic in Delhi, it has become ritualistic to take stock of what has happened since then. Few things have changed, but many remain the same despite the best efforts of state and civil society organisations.

Reporting of cases rape, for example, has gone up, resulting in many cases as gruesome as the Delhi gangrape coming to light — rape and brutalisation of dalit and other marginalised women, rape by fathers or family members, sexual exploitation of women and girls under the promise of marriage. The National Crime Records Bureau (NCRB) does not provide an explanation for the increase of 8,000 cases in 2013 alone, and a further increase of 3,000 cases the following year. A recent newspaper report stated that crimes against women in Mumbai increased by 59 per cent during April 2013 to March 2014 compared with the previous financial year, while convictions in serious offences stood at an abysmal 8 per cent.

The increase in reporting of cases can be attributed to increased awareness among the public and a renewed hope in the criminal justice system after the recent amendments. It could also be due to the provisions of mandatory reporting brought in through the Protection of Children from Sexual Offences (POCSO) Act of 2012 and later applied to the Indian Penal Code. It could also be due to the criminalisation of all consensual sex with minors under 18 years. It could also be due to the wider definition of sexual crime in the POCSO Act, which was later incorporated into the rape law under the IPC in 2013.

These varied factors cumulatively may have contributed to the increase in numbers and there may be no need to press the panic button in this regard. But the disturbing fact is that increase in reporting is not supported by an increase in conviction rates. So even while victims approach the system with renewed faith, the system has failed to reciprocate with a corresponding increase in conviction rate or by bringing in adequate victim support during the entire proceedings, from the FIR stage to the cross-examination in criminal courts by lawyers.

With the wider definition of sexual violence under POCSO, cases which used to be tried by the magistrate’s court are piling up in sessions courts. Though POCSO provided for special child-friendly courts with adequate infrastructure and specially trained and sensitised judges, this provision is rendered into a mockery by the Bombay high court which, in order to cope with the huge backlog, declared that all sessions judges are special judges of the POCSO court.

While cases languish in courts, the holding power of victims wears off and many behind-the-scenes negotiations take place. Victims do not see any light at the end of the tunnel and are inclined to retract as coping with the case itself places a huge burden on them in addition to the mental trauma of having to face the accused in court on each date.

One reason for the low conviction rate is that the investigations are lax and do not meet the rigour of the criminal trial. The Mumbai Police was humiliated this week when no charge could stick in the high-profile Salman Khan appeal. With a stroke of the pen, the high court declared, not drunk, not driving, not guilty. The ruling just stopped short of saying, no accident, no one died that fateful night, only because the power of money and influence could not make the corpses disappear. It’s a decision that has shocked the entire nation. The case confirms that the rich and powerful are governed by a different set of rules than the lesser mortals. The trial in this high-profile case went on for 13 years — in contrast, the appeal was completed within a few months, so that the actor could be absolved of the blemish of conviction.

Coming back to rape trials, when trial goes on for a very long time, for various reasons, the victim retracts. Perhaps the initial zeal wears off and, in any case, the trial itself is a gamble — hands can be greased, witnesses can be bought, investigations are shoddy, forensic evidence faulty and unreliable. A high-profile criminal lawyer can turn the night into day and the day into night with the sheer force of his legal argument. We saw each of these elements in the Salman Khan case. The difference is that in rape cases, every acquittal is construed as a “false” case.

The only positive news this week was the conviction of the accused in the Suzette Jordan rape case, a victory worth relishing as Suzette challenged our notions of a rape victim.

An Anglo-Indian single mother, she was ready to face a media trial revealing her identity. She was out at night drinking and dancing, not playing the “blemish-less virtuous woman” which the world wants to see in every rape victim.

The recent amendments have not made any difference to rape trials and they continue to be harrowing for the victim. Every effort is made to turn her into a scheming woman of questionable morals. Suzette was subjected to the humiliating experience where the undergarments worn by her at the time of the rape were held up on a stick for her identification during the trial, while the lady judge looked the other way. The conviction, which ought to have been a moment of triumph, is overshadowed by the fact that Suzette is not here to witness it. She succumbed to encephalitis (inflammation of the brain). But the rest of us have to take her struggle forward. Suzette Jordan’s case highlights the crying need for a victim support programme that can safely and caringly hold victims as they go through this daunting system.

The writer is a women’s rights lawyer