It has been repeated ad nauseam that we all must respect law and allow the due process of law to work accordingly. It cannot be denied that “fake encounters” and “extra judicial killings” are a big threat to our Indian democracy. But the biggest threat to our criminal justice system is to justify the excruciatingly glacial pace with which our courts function under the garb of “due process of law”! It is the victims families who bear the maximum brunt because of this which under no circumstances can ever be justified on any ground whatsoever! This cannot be left unattended and it is high time now that the due process of law for rapists must speed up now!
Is it due process of law that thousands of Judges post are lying vacant in trial courts due to which inordinate delay in delivering justice happens? Is it due process of law that an astonishing 38% of sanctioned posts for High Court Judges – 410 of 1,079 posts are lying vacant? Is it due process of law that thousands of Judges post are lying vacant in trial courts? Is it due process of law that we earlier saw how even posts of Supreme Court Judges are lying vacant?
Is it due process of law that witnesses are threatened to turn hostile by dreaded goons due to which they succumb many times out of fear? Is it due process of law that those witnesses who still don’t listen to dreaded goons are liquidated brutally? Is it due process of law that witnesses who speak up against dreaded goons or who are rape victims and inspite of security needs are denied the same by the police due to which they are brutally murdered?
Is it due process of law that rape cases keep pending for many years first in the trial court, then for many years in the High Court and finally in the Supreme Court? Is it due process of law that Public Prosecutors many times skip appearance on crucial hearings due to which rape victim suffers immensely? Is it due process of law that the victim has to wait endlessly for getting justice and she is told clearly by the Judges that don’t expect instant justice and she can get justice after decades of fighting the legal battle in court after following the due process of law?
This must change now and the judicial system must now speed up cases in serious crimes like that of rape among others. Our judicial system needs a lots of changes which will benefit the rape victim. It can be done if there is adequate political will in this regard!
We just saw how amid a chorus of voices in both Houses of Parliament endorsing the encounter killing by Telangana Police of the four accused in the gangrape and murder of a veterinary doctor in Hyderabad, there were a few voices of caution and dissent also that cut across party lines which cannot be ignored. We are a democratic country where “rule of law” prevails and we all as good citizens have to abide by it. There can be no denying or disputing it.
While condemning the Hyderabad police encounter, BJP MP Maneka Gandhi told reporters outside Parliament that, “Whatever happened was terrible for the country. You cannot take the law in your hands. They (accused) would have been hanged anyway.” I agree with Maneka Gandhi’s first two statements that whatever happened was terrible for the country and no one can take law in one’s own hands. There can be no denying it!
But I don’t agree with the third line that, “They (accused) would have been hanged anyway.” Our past experience does not inspire the unflinching confidence which Maneka has tried to demonstrate in our criminal justice system! We cannot run away from the ugly truth that confronts us on this score!
Based on my personal knowledge I will tell what I know on this count. The last time we had the great privilege to see a rapist being hanged was 15 years ago in 2004 when a poor Dhananjoy Chatterjee was hanged on circumstantial evidence alone with his petition being drafted by Tihar jail prisoners as was pointed out by senior Supreme Court advocate Colin Gonsalves which is nothing but a “miscarriage of justice” because in other similar cases like that of Priyadarshini Mattoo rape cum murder case where the evidence was direct, death penalty was not given because there were “eminent and experienced lawyers” to defend him! Similarly before 2004, it was way back in 1982 that Ranga and Birla were rightly hanged.
But can Maneka Gandhi tell me why is it that just three rapists hanged in last 37 years and why no gang rapists have been hanged ever till now at least to the best of my knowledge? Is this due process of law? Is this the right manner of imparting justice?
What about the other thousands of rapists cum murderers who escape very easily from punishment? Why have they been spared? Is it just because they were able to hire a battery of “eminent and experienced” lawyers who were able to give thousands of reasons for saving their clients from being sent to the gallows? Is this due process of law?
I have just no words of praise for Naresh Gujral who is Rajya Sabha MP of Shiromani Akali Dal and who sums up most eloquently and elegantly by saying that, “Though I feel very strongly for women’s security because I have two daughters, the due process of law is to be followed. The problem is the process of law has become very slow. But still, there has to be process of law. This way, we are walking towards anarchy. We are not savages. There were four accused and a full investigation did not take place and we do not know whether all four were involved or not. This is dangerous.”
In other words, Naresh Gujral who is a learned Rajya Sabha MP and son of former PM IK Gujral has not minced any words to make it very clear that the nub of the problem in our criminal justice system is this: “The problem is the process of law has become very slow.” Why can’t the due process of law for rapists be speed up? Who is stopping it?
It can be done provided there is political will as was very rightly acknowledged by none other than the Vice President – M Venkaiah Naidu himself. He said that, “I am not against any bill or new law, but what I always feel is political will and administrative skills to kill the social evil are needed. Change in the mindset is the need of the hour and that we should go back to the roots and culture. Looking at such incidents from the prism of religion and politics would ensure that the “cause is lost”.” Very rightly so!
Why can’t Centre display adequate political will and take the bull by the horns? Why can’t thousands of rapists be hanged by ensuring greater speed in “due process of law” which presently is moving at snail’s pace? The ball certainly lies clearly in the Centre’s court and it must now take the historic initiative in this regard just like it did on Article 370 which invited praise from many Congress and other opposition leaders also!
Having said this, it must be pointed out that on new laws, the Vice President said that, “Bringing new laws was not the solution. We brought a Bill on Nirbhaya. What happened? Was the problem solved?”
With due respect to Vice President whom I adore, I must tell him that he is right that they brought a Bill on Nirbhaya but it did not solve the problem. In the same vein, I must tell him even though it would seem unpalatable that the Bill on Nirbhaya was riddled with inconsistencies and there were too many “escape routes” which were exploited fully. Why mercy petition for rapists and terrorists have not been abolished? Why no time limit fixed for deciding mercy petition?
Why mandatory death penalty not inserted in Bill on Nirbhaya? Why Judges were armed with “discretion bombs” in form of “may” in the new Sections inserted by the 2018 amendment which now must be defused by removing “may” and punishing those who commit rape as in Nirbhaya case with mandatory death penalty? Was it done earlier? Certainly not!
Why even for repeated offenders of rape there is no mandatory death penalty? Why “escape route” in form of “life imprisonment” still open in the Bill on Nirbhaya? Why should rapists get a chance again ever to commit rape again and still not get death penalty compulsorily?
Why no time limit was fixed for trial court, High Court and also Supreme Court to decide the case? Why was it allowed to linger on for so long? Why minimum punishment for gang rape was fixed at 20 years?
Why no mandatory death penalty was fixed for gang rape? Why maximum punishment was fixed only at life and not death? Why time limit not fixed for filing review and mercy petition and also for deciding them?
Whose interest did all this serve by leaving it totally untouched? It goes without saying that it was the accused rapist who gained the most due to all this just like we saw earlier prior to bringing of a Bill on Nirbhaya. Can the Vice President deny this? Certainly not! But certainly Vice President is right in advocating that minor rapists whop know how to rape must be punished just like other adult!
I must also admire what Trinamool Congress Leader in the Rajya Sabha – Derek O’ Brien said about this. He very rightly said that, “The problem needs a solution without politics. West Bengal has 48 fast track courts of which 46 are for dealing with cases of violence against women. I strongly believe it’s a social evil. We need to solve this without politics. Quick justice is the need of the hour, but we need the rule of law. This is a very emotional issue, a sensitive issue.”
More importantly, selective hanging of rapists as we saw in case of poor Dhananjoy Chatterjee must stop once and for all. All rapists irrespective of their background must be hanged and killed promptly just like mosquitoes! No discrimination based on economic and social status should be done on this score!
Also, those who are poor like Dhananjoy Chatterjee must be given the best lawyer so that “due process of law” is actually implemented on ground and it is not the prisoners of Tihar jail who draft his petition which ostensibly had to be rejected as it was poorly drafted! What a shame that Dhananjoy Chatterjee’s application was drafted by Tihar jail inmates as was pointed out by senior Supreme Court advocate Colin Gonsalves which is nothing but the supreme rather worst travesty of justice as he was hanged on circumstantial evidence alone whereas in other similar cases the accused rapist were not given death penalty! This nothing but abuse of “due process of law”!
This should never be allowed under any circumstances to happen! Why should rich rapists be allowed to walk away even after raping, committing murder and committing gang rape? To walk the talk, no rapist irrespective of his economic status should ever be spared under any circumstances and this is when we can then say that “due process of law” has been followed!
Most importantly, the due process of law for rapist must be speed up. The time limit for completing trial in trial courts as well as time for deciding cases in High Courts and Supreme Court must be fixed and should be accorded the topmost priority as it brooks no inordinate delay! Centre and also Supreme Court must act in tandem to ensure this.
To sum up, Julio Ribeiro who is a retired IPS officer and who was Mumbai Police Commissioner, DGP Gujarat and DGP Punjab and whom I hold in highest esteem very rightly says that, “The Telangana police unit which shot dead the four suspects in the veterinary lady doctor’s rape-cum-murder offence were likely carrying out a mandate entrusted to it by their own leaders who, in turn, will have received instructions from political superiors. The public baying for blood is a symptom of a puzzled and ill-informed society. Until the system of judicial process is put back on the rails, these short-cuts will continue. How does the government – with the judiciary, the Bar and the police, all components of the judicial process – correct all these flaws in the system? For starters, the court must hold daily hearings in such cases without any interruption. No adjournments should ever be given. If lawyers are busy with other cases, they must take steps to send their juniors to attend those other cases instead. All stakeholders in the judicial process must sit across the table and take a decision to speed up the trials of rape and murder cases, at least.”
He further adds that, “When I was a young student of law, those accused of heinous crimes like murder or rape were tried swiftly and punished or set free, as the evidence on record dictated, within a year. The average time taken was eight or nine months, during which time the accused were in the custody of jailors. The hearings were held daily, and no adjournments were asked for or given. The public prosecutor and the lawyer of the accused were invariably present in court to rise in their seats when the presiding judge entered at the appointed hour of the morning. The witnesses were kept ready outside the court and would be ushered inside the courtroom when his or her name was called by the judge’s clerk. There was great precision and solemnity to this whole process. Sadly, this has disappeared now with advocates for the prosecution or the defence seeking adjournments, often on flimsy grounds. Sadder still, they are able to obtain it without any difficulty. The entire atmosphere has been transformed into one witnessed routinely in the courts of the lower judiciary. Delays in the disposal of trials of those accused who are charged with murder and rape, or other heinous crimes, has warped the judicial system. If those who dare to commit such crimes feel that there is laxity within the system, where the chances available to suborn witnesses are enhanced, then the threat of law catching up with offender retreats. An atmosphere of lawlessness creeps in. It is exactly this atmosphere of lawlessness that presently prevails. The middle class, who form the bulk of the opinion makers in any country, put pressure – subtle or overt – on the governments of the day to preserve their sense of security in anyway possible. Since the judicial system does not operate as smoothly as it used to in the past, popularly elected governments, in turn, put pressure on the police forces to use other methods to solve the problem.”
It is high time now and both the judiciary and the Centre must take the suggestions of Julio Reibero who has a vast experience of police service most seriously and implement his commendable suggestions! Rape laws must be earnestly expedited and all laws which affect women must be speed up so that women gets justice as per due process of law and not by encounters! Only then will people start respecting judiciary in the true sense and people’s unflinching faith which earlier was there shall stand restored once again!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.