Komal Gesala is currently studying in T.Y.BCom from Mithibai College. She loves writing short stories and blogging in her spare time.
The Judicial Fight Against Sexual Assault
Justice is the only thing that provides a sign of relief to the victims that survive heinous crimes like rape. But legal remedy not provided in a timely manner is equivalent to no legal remedy provided at all. Several cases go unreported due to the long and tedious judicial proceedings that defame the already wounded soul of victims. Timely redressal of such cases is extremely essential given the present scenario where these cases are increasing every day. In 2015, more than 34,000 cases were reported and there has been no substantial reduction in the number despite of all the policies and laws to protect the dignity of women. Rape is punishable under Section 375 of the Indian Penal Code but unfortunately the rate of conviction is as low as 27.1% (in 2013).
The journey to seek legal remedy is daunting for the victim as well as the family. The basic procedure involves the following steps-
- The victim or her family has to file a FIR (First Information Report) with the police station within the jurisdiction of the crime.
- As soon as the FIR is filed, the police begin the investigation of the case.
- The victim is sent for medical examination in order to get confirmed evidence.
- The victim is asked to recognize the accused and once the accused is recognized by the victim, the accused is sent for the medical examination as well.
- After this the chargesheet consisting of the FIR, statements of the victim; accused and witnesses, details and findings of the entire investigation procedure is submitted to the Sessions court so that the trial can begin.
Now when we read these steps they seem simple to follow but in reality the scenario is not that simple. Many a times police officers refuse to file the FIR when the accused is an influential personality or in some cases police officials themselves. Not until the victim manages to gather the attention of a mob or media, the police officers report the FIR. Even after the reporting is done inefficiency and corruption in the police department have led to instances of faulty investigation, manipulation of important evidence and coercion on witnesses to change their statements. All these factors result in making a weak argument in front of the magistrate and hence deprive the victim of justice. Many times the victims are not taken for medical examination which is a crucial part of the investigation in proper time and hence the evidence of rape wipes out. Also, the victim has the right to demand a female doctor for medical examination but there have been instances where the police officials have declined their request.
Even when the entire investigation is carried on in a proper manner and all the evidences are collected the trials run for years resulting in demotivation and most importantly defamation of the victim. Lenient investigation by the police, unnecessary adjournments, lack of protection of witnesses and the victim itself result in a long judicial procedure. The humiliating and defiling questions by the defence counsel kill the remaining soul of the victim inch by inch. Thus, in the midst of this long judicial procedure, the victims tend to commit suicide or they are killed by the accused due to lack of protection or they settle the matter mutually even though they don’t will to do so or lastly lose hope and withdraw the case. Unnecessary prolonged trials result in tampering of evidence, threatening victims or witnesses, accused getting away, etc.
Thus it is essential to make this daunting journey easy for the survivor so that she can seek justice and move on with her life as soon as possible. After the Nirbhaya case, fast track courts were setup to provide speedy redressal to rape victims. However, the efficiency of these courts is at a test as even after the formation of fast track courts there has been no substantial decrease in the number of pending rape cases. Thus, the functioning of fast track courts needs to be improved and number of fast track courts should be setup across the country. The victim should be sympathized and provided with all the information and resources she could use. The police and other officials should understand the pain and trauma of the victim and try to keep her at comfort throughout the investigation and judicial procedure.
Various judgments have provided guidelines for how law enforcements should respond to rape victims. As soon as a woman comes in a police station to file a report for rape she should be informed that she can file the case with the help of a legal counsel and also should be given a list of lawyers that are willing to help her. The case of the victim is fought by the lawyers of the state she is residing in. The victim can demand her case to be recorded by a woman officer in presence of her family member at a place of her will so that she is comfortable at all times. The victim can demand medical examination by female doctors and should be provided with immediate medical help for her injuries. She should be provided with counsellors to help her deal with her mental trauma.
The victim has the right to refuse the “two-finger test” that is used to determine if the victim had any previous sexual experiences. This test is just a means to exploit the victim by the defence counsel who could claim that the victim has an “immoral character”.
The victim’s privacy should be maintained at all-time right from the time of filing the FIR until the end of the judicial proceedings. The court proceedings should be conducted in private and on camera, the footage of which should not be leaked in media or handed over to anyone. The victim also has the right or refuse to answer questions that the defence counsel puts on her character or previous sexual experiences. The victim has the right for free legal aid and the lawyer must inform her about all the happenings of the proceedings. If the victim is under the age of 18, the victim has the right to be heard in a special court and the special court must complete the trial within a year. All the questions asked must be in a sensitive manner and the victim can be accompanied with a family member and allowed breaks during recording of statements.
Apart from these guidelines there are many more guidelines that provide for comfort of the victim. However, the implementation as well as the awareness about these guidelines is inadequate, particularly in rural areas where women especially teenage and minors are not informed about these guidelines. It is very important to spread awareness and improve the implementation of these guidelines to make this difficult time easy on the victim as well as her family. It is important for women to seek the law and not fear it and it is the duty of the state to gain the trust of women so they can fearlessly report any crimes against them and get required assistance as soon as possible.
The opinions are of the writer.