Justice Delivery System in India: A Study in Relation to Nirbhaya Case
Author: Eesh Chaudhary
Amity Law School, Noida
Fatal Gang rape and Murder of physiotherapy student Jyoti Singh (Nirbhaya ‘no rape victim should be ashamed of being raped’) on 16 December 2012 in New Delhi. Constitutional and legislative changes arising from the Nirbhaya tragedy will be a significant time in India’s trajectory of attempts to deliver justice to perpetrators of gender-based abuse. In the situation Verma committee was setup which is headed by Justice JS Verma; which consists of the Criminal law (Amendment) act 2013, The Juvenile Justice act along with the provision of Code of criminal procedure, Indian penal code and evidence act. The reason behind the amendment is that this case create the resentment in the society. The Delhi gang-rape case has been prosecuted under older (pre-2013) laws and convictions have been won, “which is what the Centre and the States continue to work on developing a comprehensive and efficient criminal justice system. This paper examines how convicts and courts have ended up creating the delay as on part of judiciary. Close issue regarding the other rape case, execution in India post Nirbhaya case, trauma of trail, Decisions, studies, reports and other observations. Sexual crime claimants give up the court fight due to reasons such as abusive actions by the police and the courts, lack of funding and shoddy prosecution. We are required to establish a corruption free criminal justice system in this country. Victims became dissatisfied by administrative failures, which introduces policy problems that exist and pose a significant challenge to making such new regulations successful and beneficial in removing the problem in society. The lack of these type of implementation create rebellion in the society and denying the victim their right to justice. This case was a clear example of ‘Justice Delayed but not denied’. Towards that the topic is formulated on the doctrinal study by analysing the primary as well as the secondary sources of data’s whereby one data has been corroborated with other to arrive at certainty.
Keywords: Justice, amendments, crime, death penalty, investigations.
The rape and murder of Nirbhaya led to public uproar, reforms in the laws of women’s offences and even legal action in such cases. A 23-year-old physiotherapy student was assaulted and beaten by five people and a young man in a bus who died as a result of internal injury after being thrown out of the bus. The case has sparked mass demonstrations around the world and called for special action for women’s health. The death of Nirbhaya prompted the government to investigate the treatment of women in India, change the law on rape, and set up fast-track court committees to expedite such proceedings. It took the courts-trial, supreme and lower court four and a half years to hear and determine. After three years, the juvenile (adult) aged out of the correction program. Four of the adults, one who attempted suicide in jail died and four more were sentenced to death by the Supreme Court. Our Constitution expresses this ideal in the preamble itself, which speaks of justice in all its forms: physical, economic and democratic. Because justice is a fundamental obligation, the pursuit of justice is an ideology that mankind has been pursuing for centuries to come.
Why We Have All Failed Nirbhaya: trauma of trail
Dozens of Indians celebrated the news that Telangana police killed four accused of raping and killing a young vet on the outskirts of Hyderabad on 27 November, police have been praised, what could be legally called detention on social media. There was a sudden rage among everyone as whole nation was in rage because of the slow justice processes in the country respective of the fact that it was a police encounter on the site.
For seven years another woman was raped and brutalized on our streets. When the 23 years old physiotherapist was discovered, on the night of 16 December 2012, Nirbhaya in Delhi was attacked by a gang of six people, including a minor, in a moving bus. The pace of the attack, triggered nationwide anger and spontaneous street protests. Fast track courts sent the accussed person for 9 months and other adults were sentenced where fifth one was found dead in the cell. All of this because of slow proceedings happening in high court.
Now, finally, the hanging gives the country another chance to celebrate the criminal justice system. Many who originally opposed the death penalty acknowledge that unimaginable cruelty against Nirbhaya is nothing short of the death penalty. The death penalty after public outrage is not consistent with the law. In most cases, life without parole is very good”, there appeared to be no signs of improvement in the behaviour of rapists after the crime. But seven years later, I don’t know what the death penalty is for victims and perpetrators. In India, sexual misconduct has always been exhausting and a humiliating experience for the survivors and their families. The Supreme Court ruled last July that only 4% of the 24,000 sex offenses were closed between January and June 2019, Whereas the statute demanded that the trial be held within two months. The Union Government has initiated a program to set up 1,023 Special Accelerated Courts (FCS) throughout the country to settle cases of rape under the Indian Penal Code and to rapidly settle offences under the POCSO Act. However, the findings of the latest fast recipes are anything but inspiring. As of September 30, 2019, there were 701,478 incidents pending in 704 speedy operational courts in India. We cannot expect the judiciary to wander and deal with half-baked and false investigations. More than 70% of the cases brought before the fast court are related to favourable traffic that goes wrong. In 2013, a newspaper report investigated 460 cases in Delhi, which showed that more than 40% of them had consensual sex. Twenty-five per cent is linked to sex after marriage promises. Sexual crimes often stem from lawsuits due to causes such as police and judicial insensitivity, lack of funding, and insufficient investigation. For high-profile cases, bad prosecution is mostly attributed to a lack of oversight willpower on the part of the investigators-the case of Unnao with Sanger as an example.
However, in most cases, the investigation is due to lack of police officers, poor training of investigators and gender sensitivity. While the number of reports of sexual assault is rising, the efficiency of the police is decreasing. According to NCRB, only 85% of the sex crimes investigated in 2018 were convicted, compared to 96% in 2012. Police officer must be quick after getting a rape complaint because as time passes the victim becomes more distant with the justice system of the country.
Successful governments have recognized that it is not easy for women who are victims of sexual harassment or violence to seek help from police or other officers. A good way to solve this can be involvement of more female police in the system.
Why Justice is Delayed
Role of police
Police was the one which opened the case again by doing the necessary investigation from scratch. A police officer in charge of public policy may not be able to pay enough attention in this area of crime. Therefore, the law, order and investigative obligations should be set aside, as Supreme Court recommended in its Police Reform Regulation. Although practical difficulties hinder full implementation, a special unit can be set up in each district to investigate serious crimes such as murder and rape. Police often delay in filing charge sheet reports. Sometimes charge sheet are sent back for correction. Medical-legal reports are also delayed because there are few forensic laboratories. More laboratories should be opened with functions of cyber forensics, DNA testing, handwriting comparison, etc. Even after charge sheet has been filed in court, there are significant delays in filing and returning the file to court. Special courts that are specifically charged for the prosecution of heinous crimes should have the right to hear the offenses directly and take daily judicial proceedings.
Several provisions of the Criminal Procedure Code intended to give the accused every opportunity to defend themselves and such tactics are often used to delay and sabotage the process. The defence used several delay tactics – absent in succession without obtaining copies of the documents cited by the prosecutor; Not to explain the allegations; And file applications to dismiss one after the other and then appeal. Once the trial finally begins the witnesses are first interviewed, and the defence counsel adjourns the cross-examination, the defendant then files a petition under Section 317 of the CrPC requesting repeated adjournments and due to which Interrogation of witnesses, interrogation of accused, etc. are postponed.
What is slowing down the Judicial System of India!
According to the 2014 report there were more than 44 lakh cases pending in the supreme court and this figure touches to three crores if we take into account of all the courts in India. These three areas are the core of slow process –
First there are so many loopholes in the system which is wrongfully used by the accused to proceed the case more further and further in the system getting more time hence delay is done. For example: there are no strict provision under section 173 of CrPc which state the chargesheet. Police officers are delaying in filing the chargesheet due to this hearing takes times.
Second, the proceedings are way too slow and insufficient that no logical and intelligent decision can be taken in one sitting. It means in a case of 50 hearing, on an average there would be 10-15 adjournments on inconsequential grounds then, the judges would be absent for another 10 of those hearing, thus the number of effective hearing is quite low. There is a huge gap between the two dates of hearing resulting in more delays up to months and eventually years.
Third which is the most important one and a major one that is there is a huge shortage of judges in Indian justice system with total of around 464 seats vacant. India has only 10.5 judges per million of population which is quite low actually a poor ratio in comparison of other countries. This has impacted in a way that there is a huge pile of cases rising day by day with more and more cases filing with time passing.
Convicts and Courts Contribution to Delay Justice
For more than a year, the convicted have been using the rule to postpone execution by sticking to the judicial alternatives as follows:
- Article 137 of the Constitution provides that the Supreme Court of India has the right to review or order any decision subject to the provisions of the laws and regulations enacted in Article 145.
- In India, a binding decision of the Supreme Court can be reviewed by submitting an application for review.
- Parties violating the Supreme Court’s decision may file a review request due to an apparent mistake in the case.
- Given the principle of rigorous decision-making, courts usually intervene in only one concrete case.
- Chances of success in filing this application are slim as it goes to the same body that first negotiated the case and delivered its verdict.
- In the amendment petition, the petitioner tried to claim that he was not on the bus and any other place and had nothing to do with the incident. However, the existence of the required evidence led the court to dismiss that petition.
- After rejection from all sides, Mercy Petition is the final stage that can be taken in the context of the Indian judicial system.
- If a person has lost all legal remedies available under all laws, they submit a petition for pardon to the President of India or the Governor of the state in which that person resides.
- As per Article 72 of the Constitution of India, the President has the power to establish a party, set a party or waive a sentence, which has been pronounced by the Supreme Court.
- He also has the right to pardon, but the power is not on discretion as it requires the opinion of the Council of Ministers.
- The President confirmed the death sentence pronounced by the Supreme Court against four other convicts in the Nirbhaya case
No curative Petitions:
The concept of “curative petition” was developed by the Supreme Court of India and looked back to determine whether an injured person was entitled to compensation for the Supreme Court’s final ruling after rejecting a motion. In relation to the above case, the Supreme Court orders that it may reconsider its decisions to end the misuse of its judicial practices and minimize the misuse of its inherent powers. The Supreme Court of India overruled his arguments in the Nirbhaya case.
Juvenile hurdle: Two of the four offenders said they were underage at the time of the incident. The SIT team had to go to their villages in Bihar and Uttar Pradesh to gather evidence. Officers and educational institutions where we had to obtain birth certificates and the related documentation did not operate on weekends or holidays. This has postponed the cycle by a few days. The judge will urge these organizations to speed up the process. The police have reported that the defence attorneys and their witnesses were seeking to postpone the trial with one pretext or another. In the middle of all this, a personal disaster stopped the judge from taking the lawsuit for about a week.
Juvenile Justice (care and protection) Act,2015 through the legislation replaced the existing Juvenile Justice (care and protection) Act,2002 the present arrangements envisage the juvenile delinquents who are in conflict with the law are in age group of 16-18 years and are involved in heinous offence can be tried as adult the act was passed by both houses when the Nirbhaya juvenile was released. All state governments are required to set up juvenile courts in their state so that children can also get pass through the system and justice can be served irrespective of age.
Why midnight hearings in death penalty cases?
The Nirbhaya case was one of those cases where Supreme Court of india opened and proceeded with hearings at the hour of midnight. The last two occurred in the killings of Nithari and the cases of Yakub Memon.
Other similar cases
In the Memon case, the Supreme Court referred to the “endlessness” of these death penalty cases, which warrant midnight hearings. The fourth night was not even related to the case but for the government formation in karnataka. The swearing-in ceremony of Yeddyurappa as the Chief Minister was moved by the Congress party to the Supreme Court on the eve of the BJP’s post.
In Nirbhaya case first time it happened that Judge R.K. Banumathi a female judge started the proceedings, which held the morning hearing of 20 March. The final task of administering justice in the Nirbhaya incident was before the four convicts were hanged on Friday. At another morning she was removed due to the litigation filed by the accused.
Similar incident took place when Bombay blast accused was about to be hanged but knocked the doors of supreme court which led to removal of one judge form the panel which took the decision and delayed the process. On July 30 at 3 am. 2015, hours before he was hanged at 7 am. A tired bench, which had gathered in the fourth court, had heard the arguments of Memon’s lawyers and at that time India’s Attorney General Mukul Rohatgi protested for more than an hour. The bench ultimately rejected Memon’s plea, allowing him 14 days to make peace.
However, in 2014, the Supreme Court gave relief in nithari murder case at midnight hour before he was about to be hung in meerut. Barely before few hours.
Post Nirbhaya Era
The vivid example of the Nirbhaya case was the modification of the legislation on the implementation of criminal law in 2013. Among other issues, the new legislation broadened the concept of rape, making it a non-punishable felony, strengthened prison sentences for certain forms of sexual harassment, and saw the death penalty in situations where the rape victim was murdered or left in a vegetative state. If a police officer is failed to write an fir on time than he is legally to be sent to jail for one year or fine or maybe both. Two other significant reforms have now come into effect. In January 2018, the kidnapping, rape and murder of an eight-year – old girl in Kathua followed by an amendment to the Criminal Law Act, 2018. The legislation provided for the death penalty in cases of rape where the victim is under 12 years of age and investigations and trials should be concluded within two months. The Child Protection Act against Sexual Crimes (POCSO) has also been updated where death penalty can be depending upon the case level and status of crime. We have stringent criminal legislation in place to combat sexual crimes against women. Nevertheless, there is no comprehensive review of how criminal law was enforced in 2013, so law enforcement is a significant concern. The 2013 law allows the police to file a FIR even though the crimes identified have been committed in areas outside the authority. The line is considered “zero FIR.” This is still overlooked, though. In the rape and murder case in Hyderabad, when the vet was initially missing, her family told the police in Cyberabad. Police said that the family declined to file the FIR. Unnao risen to prominence when former BJP MP Kuldeep Singh Sengar was charged with rape of a minor girl in 2017, the Delhi court sentenced him to imprisonment under POCSO law, and the court criticized the CBI, which pursued the interrogation for operational reasons. The Department did not appoint a woman officer to the case, as requested by POCSO. Rape survivor has authority to register her testimony at any place she likes but instead she was called to cbi office and testimony was registered one year later.
Legislative reforms post Nirbhaya case
- The CLA 2013 and MoHFW guidelines following the Nirbhaya episode are two leading responses from the Indian government to public protests across the country.
- The government’s third response to providing immediate and long-term care to survivors of gender-based violence is a closed shop.
- There were many demands from the protesters, such as inadequate and inefficient security for women, unreliable public transport, poor police functioning, who often blamed rape women and F.I.R. Forms of crime and bureaucratic procedures associated with sexual assault.
- The Verma Justice Committee has been tasked to reform the country’s anti-rape laws.
- The Delhi Police has been expanded to include more women officers so that women can share everything with them.
- Security has been strengthened and patrolling has been strengthened, and police should now take gender awareness courses to help understand the issue of women’s rights and safety.
- Laws against sexual harassment have become even stricter.
- Since one of the accused was a minor (17 years) at the time of the crime, a need arose to change the youth law.
- A space has been created for public debate on sexual violence against women which did not exist before.
- Delay and inefficiency is providing medical care will be considering a criminal act under Section 166B of the IPC under CLA 2013.
Forward to Nirbhaya: cases of rape that gripped the country and its people
The Supreme Court approved four execution sentences for horrific gang rape and the death of 23-year-old ‘Nirbhaya’ in December 2012, but the significance of the crime goes way past the court case. It has made the issue of sexual rights a national worry in India. The Nirbhaya Fund was created by the UPA govt and handled by juvenile court and mahila court. Although this case seems to be in the media, there’ve been a variety of other incidents of harassment in recent years that have generated growing outrage:
- Shakti Mills gang-rape,2013
The accident at the scrapped mill in Central Mumbai generated significant anger. A 22-year-old photojournalist and her male companion appeared assaulted by five people, along with a minor, were raped on August 22. The perpetrator menaced that if she tried to complain, her pictures would be published publicly. An 18-year-old was reported to have been assaulted in the main building on 13 July. Three out of five people were convicted of murder and two juveniles were sent to three years of jail by the court in Mumbai.
- Vibgyor High School Rape case,2014
Protest movements fanned in Bangalore after a six-year-old was sexually assaulted by school authorities at an international school, Vibgyor. This was highly criticised and women safety was demanded in the city as it became a big issue of concern. In the event, two gymnastics coaches, Lal Giri and Wasim Pasha, were detained. Chairman of school and accussed were sent to jail. They are being put on trial in accordance with the POCSO Act. The case is relevant as it has seen reforms to the State Goondas Act that have required sex predators to be put into its reach.
- Sivagangai girl rape case, 2015
The aunt of rape victim filed a complaint in police station against the girls father and nephew who were pushing the girl into rapes and prostitution activities. The case was moved to the CID Crime Division in Sivagangai. Everything was changed when the girl herself said it was aunt who was behind all this not father and nephew. And she was tried to force name her father and her brother, A final bill of indictment was brought in February 2016 prior to the actual Fast-track Mahila Tribunal, taking an appeal against 12 people. It involved two doctors who reportedly did the abortion of victim and girls child many times.
Conclusion and Suggestions
It is time for the judiciary, state and civil society to consider whether the death penalty can manipulate the system. Care must be taken to ensure that police investigations are completed quickly. The inability of the judiciary to deliver on time is a source of frustration for everyone and the multiplicity of courts is not a sign of a failure of the system, but a sign of trust in the administration of justice. However, there is evidence that rapid fast-track courts are slowing down, witness protection is not being measured, and a professional police force is far from reality. Justice has been delayed but not denied- anyone who believes that crimes against women can escape the law, and the criminal justice system is an absolute necessity as procedural deficiencies in the system result in seven long and hard years lags behind.
 Protection of children from Sexual Offences Act,2012
 Press information bureau, 2016, https://www.dnaindia.com/india/column-action-and-not-tears-will-change-the-indian-judicial-system-2208084
 Yakub Memon vs State of Maharashtra (2013) 13 SCC 1
 Criminal Law Amendment act,2013
 Ministry of Family and Welfare protocol and guidelines
 The Protection Of Children From Sexual Offences Act