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Speedy Trial - The Key Solution
The recent gang rape incident of young Amanat (name changed) which took place a fortnight ago in the Indian capital has left the entire country in a state of trauma- Are India’s women safe? write Vikrant Pachnanda and Naina Pachnanda.
While according to data from the National Crime Records Bureau, a woman is raped every 22 minutes in India, the aforesaid particular brutal incident has paralyzed the entire nation. This incident was not just merely a rape but the accused thereafter gruesomely murdered the girl. It lead to nationwide protests including major protests in the national capital. However, the protests were largely targeted against the alleged inefficiency on the part of Delhi Police to protect women in Delhi and against the Parliament to convene a special session to amend the country’s rape laws and make them more stringent. What the people were demanding were to imbibe a sense of fear into anybody who dared to do such a heinous act in future.

In our view the question that immediately arose while the protests took place was that while on one hand India could amend its rape laws and make them more stringent; whether, on the other hand, it would actually solve the purpose i.e. to punish the accused. The Indian Penal Code, already provides for punishment for the accused for committing a rape. In fact, India is one of the few countries in the world that still provides for capital punishment- a term that is derived from a latin word ‘capitalis’ which means pertaining to the head. It is a judicially ordered execution of a convict as a punishment for a serious crime or a capital crime.

Article 21 of the Indian Constitution states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Accordingly the Supreme Court of India regards the use of capital punishment as a legitimate penalty in certain of the most extreme criminal cases. Several cases such as Jagmohan singh v. State of Uttar Pradesh, Bachan Singh v. State of Punjab, Machhi Singh and ors. v. State of Punjab and Mithu v. State of Punjabhave laid down the constitutional validity of the death sentence.

The most crucial part therefore, is the trial stage and the time actually taken to complete the trial in order to punish the guilty. One can keep amending the laws but at the end of the day it is only the trial which determines the fate of the guilty. What is required in this country is speedy trial which is the key solution in tackling this menace of punishing the guilty. The Delhi government had post this incident announced the setting up of five fast track courts to tackle such cases including a dedicated court for the purpose of just hearing the trial in the case of young Amanat on a day to day basis. However, the setting up of specially constituted fast track courts to try cases involving incidents such as rape, molesting etc. is required not just in the capital but in every part of the country. All the respective state governments should make this their New Year resolution as we have moved into 2013 and start acting on it at the earliest by setting up special courts under sections 9 and 11 of the Code of Criminal Procedure (CrPC).

At the same time while setting up fast track courts, it is also important that there is fast track justice as rightly pointed out recently to the media by Hon’ble Ms. Justice Gyan Sudha Mishra, a Judge of the country’s apex court. For instance, at the moment, the evidence recorded by the police under Section 161 of the CrPC is not admissible in evidence. Therefore, when the evidence is recorded, it should be done in the presence of a magistrate or a judicial officer and this evidence should be final. Further, as per Section 164 of the CrPC, a Magistrate has the authority to record any statement or confession, made to him, during the course of investigation, irrespective of whether or not he has jurisdiction with respect to the case. It has been reported that judges give long dates with respect to statements or confessions made in accordance with Section 164 of the CrPC and sometimes, judges, in their bid to ensure that the statement or confession before the Magistrate are without coercion or duress, literally dissuade the person from giving such a statement or a confession.

Also another vital issue that needs to be considered is that of a time bound justice delivery system in addition to the setting up of specially constituted fast track courts as opined above. What is essential is the enactment of a legislation which will set a time-table for the disposal of each case and develop a case management system. Thus, though there have been various demands such as a demand for capital punishment, amendment of laws for different punishments,etc; what the crux of the matter is, that, before amending capital punishment or other punishment there is a need for a speedy trial. So therefore the demand should ideally be for a speedy and time bound trial, especially keeping in mind the number of cases that are still pending before the courts. Lastly, there should, mandatorily, be women police officers on duty, at all times, in police stations in all jurisdictions, as has been done in Kolkata and recently in Delhi, for the comfort of women complainants.

We conclude by agreeing that a woman cannot be herself in the society of the present day, which is an exclusively masculine society, with laws framed by men and with a judicial system that judges feminine conduct from a masculine point of view as quoted by Henrik Johan Ibsen, a 19th-century Norwegian playwright, theatre director, and poet. Further, the parlance that justice delayed is justice denied continues to haunt the country’s judicial system in its quest to have a time bound justice delivery system.

VIKRANT PACHNANDA is an Advocate based in Delhi and the Managing Editor of India Law Journal. NAINA PACHNANDA is a fourth year law student at the National University of Juridical Sciences, Kolkata and an Associate Editor with India Law Journal.
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