Amended laws not enough to give justice to another Nirbhaya
After Nirbhaya Case in 2012, The Criminal Laws were amended in 2013.
After Kathua case in 2018, the laws were amended again.
But still Mandsaur happened.
Are the Indian laws weak or the government missed to fill the most important loophole in the criminal justice system?
After Nirbhaya in 2012, Justice JS Verma Committee was formed which recommended changes in the criminal law. The then UPA government accepted those recommendations and amended the criminal law. The entire country and media hailed the move.
After Kathua, the people and the media were again outraged and forced the Narendra Modi-led NDA government to again change the law. In April 2018, the criminal laws were again amended, providing death penalty for child rapists. That’s it, we thought. But then Mandsaur happened.
To Know what actually went wrong both in 2013 and 2018, what both UPA and NDA missed we would have to understand the complex criminal procedure in a simple way.
Once a FIR is registered, the officer is given 90 days time to investigate the case, collect evidence and submit the chargesheet after the accused person/persons are arrested. In 99.99% cases, the investigating officer takes 60-80 days to complete everything and submit a chargesheet.
Nirbhaya’s case remains the only one in which Delhi Police completed the entire investigations and submitted the chargesheet in the court in record 17 days’ time.
Once the chargesheet is submitted in court, it is carefully scrutinized and then the magistrate remands the case to the session court for further proceedings. The session court then frames the charges against the accused persons and trial stage commences.
The trial stage commences with the recording of evidences. The statement of the witnesses are recorded in the court and simultaneously these witnesses are cross-examined by the defense counsels of the accused persons and case properties are also exhibited and examined by the court.
The recording of evidence is the most important part of the case and has to be most carefully done so that nothing is left to chance. It is also the stage in which fair and ample opportunity has to be given to the accused to prove his innocence.
Even in Nirbhaya’s case, the trial commenced on February 2, 2013. The prosecution side presented 85 witnesses in its support, each and every witness was carefully examined and cross-examined. It took almost six months to examine these 85 witnesses.
After the prospecution evidence is complete, the statement of the accused is reorded. It is a direct conversation between the judge and the accused where the judge puts various questions to the accused on the evidence presented against him.
After the statement of the accused, the defense side produces its evidence and witnesses in favour of the accused person(s) to prove their innocence beyond doubt.
After the recording of the defense witnesses, the court then proceeds to hear the final arguments in the case. The prosecution side is heard first and the defense to rebut it, later. The court, after hearing both the sides, reserves the judgment.
However, before the pronouncement of the judgment, the court may summon any person or witness for re-examination if it is necessary, under the powers given in Section 311 (CrPC).
The court then delivers the judgment on whether the accused are guilty on innocent. If the declares him guilty, then the court immediately moves to hear the arguments on the punishment, where the prosecution argues for maximum punishment and defense pleads for lesser quantum of punishment.
The court, after hearing both sides, delivers the punishment for the accused and thus ending the gruesome trial stage of the case.
In Nirbhaya’s case, it took eight months and nine days to complete the trial stage with accused given death penalty on September 13, 2013.
Many would think with the death penalty given, the problem ends. But it is the start of the actual problem of the criminal justice system. The death sentence is then sent to the High Court for confirmation and the accused is/are given 30 days to file an appeal against the judgment.
And this is the start of the long and tedious appeal stage in the high court which in normal cases, takes 4-5 years for the high court to pronounce the judgment to confirm the death penalty to the accused.
Again, the Nirbhaya’s case remains the only one in which the high court confirmed the death sentence to the accused in just six months on March 13, 2013.
But every case is not the same and every victim is not Nirbhaya.
After the high court judgment, the appeal to Supreme Court lies, The Supreme Court in normal cases takes 6-7 years to deliver judgment. The procedure doesn't ends here. Then comes the review petition, curative petition and lastly the Presidential pardon which takes 3-4 years more.
So, in a normal case it takes around a good 12-14 years to hang a culprit. The criminal law amendments of 2013 and 2018 gave a time frame for the trial court to complete the trial and pronounce the judgment. But the legislatures forgot to bound the high court and the Supreme Court.
What should be done now?
I urge the prime minister Narendra Modi to bring an immediate ordinance to change the above procedure in rape cases in which the trial court awards death penalty with the following changes:
(a) Once the death penalty is awarded by the trial court, the appeal against death penalty should lie only with the Supreme Court within one month of the judgment;
(b) It should be compulsory for the Supreme Court to complete the hearing and pronounce the judgment within six months;
(c) The remedy of review petition and curative petition in Supreme Court must be scrapped for rape convicts awarded death penalty by the Supreme Court;
(d) The mercy petitions to the President should be decided by the latter within three months
With the above-suggested changes, the time frame of 12-14 years to hang a culprit should come down to 1-2 years and the fear of death so soon would deter any person to commit the heinous crime of rape.
It’s also the duty of the citizens to raise their voice and draw attention to the government to an extent that such changed in the criminal law are facilitated and no more Nirbhayas or Gudiyas would have to wait for years to get justice.
(Vibhor Anand is a Delhi-based lawyer in the Supreme Court. He is involved in various social issues. He runs Legal Advice Services where legal experts offer help free of charge. The helpline numbers are: 9871499769/987117269/9871130769. The above piece has also appeared as a thread on his twitter timeline.)