By Sharanya Gopinathan
We always think of fast-track courts as automatically excellent. And when we think of all the different reforms we want to put in place to make India better for women, fast-track courts (and the promise of speedy justice to rape victims) are certainly one of them. In fact, as an immediate effect of the nation-wide outrage after the December 2012 gangrape, 399 fast-track courts for rape cases were put into place around the country. Fast-track means that these rape trials should ideally be completed in two months.
But a new report by legal resource group Partners for Law in Development (PLD) presented in New Delhi on September 1, analyses many of these “victim-friendly” rape trial reforms put into place post 2013, and reveals that fast-track courts may not actually be the excellent thing we always imagined. In fact, many lawyers working in the field have known this all along.
Mrinal Satish, professor of Criminal Law at NLU Delhi, says he has always been opposed to the idea of fast-track courts in general. He says it makes the people working on the case take shortcuts, which is unfair to both the victim and the accused. “In the process of trying to speed up the case, the procedural safeguards that an accused is entitled to goes away.” These procedural safeguards include the presumption of innocence, the right to sufficient time and facilities to prepare the defence, and the right to examine witnesses and have their own witnesses examined. These safeguards were put into place for a reason, and as Rebecca John, a senior lawyer at the Supreme Court who also presented this report, says, “You can’t just play lip service to evidence. Other cases go on for six years, seven years, 10 years… that’s how long it takes. You can’t just say that one kind of victim is different from the other [or assume that justice in some crimes can be dispensed quicker than others].”
PLD studied 16 cases of sexual assault in four fast-track courts in Delhi between February 2014 to March 2015, up to the point of recording the victim’s testimony. Radhika Chitkara, a former PLD employee who worked on this report, says that they were given special permission by the Delhi HC to sit through these fast-track trials despite them being in camera. “Because we were there during the victim’s deposition, we could approach them after the deposition and see if they were willing to speak with us. Some did one round of interviews and refused to speak further after that, others did many rounds of interviews with us.”
The study reminds us of a crucial fix. When these fast-track courts for rape cases were first propositioned, they were supposed to be accompanied by additional judges and infrastructure, like courtrooms. This never happened, so “fast-track courts now function with the existing infrastructure and no additional judges”. None of this bodes well for the prospect of a truly fair trial, and that spells trouble for everyone involved. The consequences of speeding up a trial and messing around with evidence can fall on anyone — from the accused to the victim and even the witnesses in the case. And the possibility of that happening in these fast-track courts is high.
When an accused doesn’t get a fair trial in the lower courts, or when any of his legal guarantees to a fair trial are compromised due to lack of time, it allows for higher courts to later dismiss these cases, citing a lack of a fair trial, or tampering with evidence. It’s in everyone’s best interests to let an accused have the chance to a fair and airtight conviction. Everyone’s got to trust the process, and due process takes time.
A lot longer than two months, for sure. Fast-track courts are not actually bound by the Code of Criminal Procedure’s (CrPC) stipulated two-month time frame, but what’s the point of just rolling with a stipulation on paper that’s just consistently unattainable?
The PLD study points out that just recording a victim’s testimony can even take up to eight-and-a-half months. Recording a witness’ testimony can take an average of around two months. The length of a trial largely depends on the number of witnesses there are to examine, and a two- month time for an entire trial frame would force witness testimony to be rushed through without letting the lawyers of both sides cross-examine them properly.
Even if a witness’ testimony can arguably be rushed, there are some elements of a trial that simply cannot be, like forensic evidence. Forensic science laboratory (FSL) reports are mandatory in rape cases, and they take anywhere from a few weeks to several months to collect and analyse properly.
But while lawyers agree that two months is an impractical time frame to conclude a rape trial, nobody wants these expensive, often traumatic cases to drag on for 10 or 20 years either: It’s unfair to all the people involved, it gives a longer time frame for the victim and witnesses to be intimidated and forced to turn hostile (as this report also highlights, victims and witnesses in in India aren’t currently provided with adequate witness protection outside the walls of the courtroom, and so often drop their cases when threatened by their attackers, and/or even their own family), and it’s endlessly harrowing and frustrating for the survivor. So what would be an ideal time frame for a fair rape trial?
It’s hard to set a number, and mostly depends on the number of witnesses and the complexity of evidence. While the number of variables in these cases ensures that there’s absolutely no way to settle on a magic number, you can estimate. Satish says a case with only one witness might possibly be concluded in two months. For cases with more witnesses, he agrees with several other practising lawyers we spoke to, who all say that two years seems, on average, like a fair and reasonable estimate.
For most of us and especially for the victim, it still seems like a long time. But Chitkara says that in rape trials, the victim is treated as a witness, and that if her witness testimony is gotten out of the way early in the trial, she wouldn’t need to be called in any further. John says long trials are indeed very difficult for the victims, but it’s simply a practical necessity for a fair trial, one we all, including the victim, just need to accept. “Sometimes it can take two months, sometimes it can take 10 years. As a practitioner of the law, I know this; this is just how it works.”
So what now? Well, it would make sense to amend this recommendation to reflect the views of the legal experts and lawyers, as opposed to our own imagined deadlines. It would also make sense to think carefully about what we ask for, especially in times of nationwide distress and anger, so that we have a calm and measured legal framework to fall back on.
In fact, it makes you realise just how many of the legal debates and reforms we saw after 2012, such as wondering aloud in newspapers and legal circles if we should chemically castrate rapists, or supporting our lawmakers in insisting that juveniles be tried as adults in serious crimes, show that when it comes to the law, we really need to look before we leap. This report serves as a reminder that we shouldn’t confuse results with action, and that we should demand legal reform with care.
Co-published with Firstpost