How is India’s Age-Old Criminal Justice System Failing Rape Victims

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The increasing drop at conviction rates in cases of rape & other sexual violence against women brings all us to question the age-old Criminal Justice System (“CJS“) of India.

The Decline in Conviction Rates

According to the reports of the National Crime Records Bureau (“NCRB“), crimes against women have taken a steep rise across India. Every 16 minutes, a woman becomes a victim of rape. An average of 87 rape cases on a daily basis was recorded in 2019. Of over 3,38,000 reported cases of crime against women, 33,000 were for rape alone in the year 2018. Each year the data appears to be more horrifying.

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There has been a sharp increase in the percentage rate of undertrials who are charged with a crime against women. Approx. 70% of prisoners in India are undertrials. This data has increased at a faster rate as compared to the conviction rates. Surprisingly, the conviction rate for rape has fallen down from 32.2% to 27.2%. In 2018, out of 17,313 cases in which trials were completed, 11,133 were acquitted & only in 4,708 cases, conviction took place. All these figures point to the failure to deliver justice to the rape victims. Although the number of reported rape cases are increasing, still the social stigma is attached to the victim and not the perpetrator. A vast majority of the complainants do not even get justice. All this has led the wrongdoers to re-offend as they are comforted by the knowledge that they will never be held accountable. This in turn is creating more victims because of the failing CJS.

Criminal Justice System: Victim Oriented or Accused Oriented?

The low conviction rates are the result of ineffective CJS. This has made the people lose faith in the judiciary & in the system at large, which is very dangerous.

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The age-old CJS is the legacy of the British system. Its implementation rests upon three institutions: the police, the judiciary & the prosecutors. Its aim is to protect individual rights & liberty against others. However, it has not undergone any significant change even after several years of independence. Under our procedural criminal law, the accused is treated as a privileged person. They are protected under Article 20, 21 & 22 of the Indian Constitution. But when it comes to the victim, only a few provisions afford assistance & compensation to the victim in the crime. It seems as if the victim is a forgotten party to CJS. It entirely focuses on protecting, punishing, reforming & rehabilitating the offender. But the victim is left with little or no such assistance. Even if compensation is made available to the victim under Section 357(1) of CrPC, it is inadequate in the present world. Such compensation is only awarded in cases of sentences and not acquittal of the accused.

Rape is one of the heinous crimes against a woman. It is not only a crime against an individual but also against society. It does not merely inflict wounds upon a woman’s body, but also to her mind & soul. In Bodhisattwa Gautam v Subhra Chakraborty, the Apex Court has correctly held rape as an offense against the basic human right as also the fundamental right of personal liberty and life. Despite the gravity of the act, there has been no strong step taken by the country to put an end to it. Although the Government has taken major steps in increasing the punishment of the accused in rape cases, no positive step has been made to reduce the suffering of a woman. The recommendation for reforming the century-old CJS, by a panel headed by Justice V.S. Malimath, has still not been implemented. It was pointed out by the committee that the existing system weighs in favor of the accused. It does not focus on justice to the victims of crime.

The Failing Criminal Justice System

The age-old CJS is based on outdated laws. It is badly failing to meet the ends of justice in the 21st century. It is no longer effective to accomplish the aim to protect the rights & liberty of an individual. Moreover, it has led to people getting harassed by government agencies. It has put immense pressure on the judiciary. Even after years of fighting, the system does not seem to deliver justice. About 3.5 crore cases are pending according to the Economic Survey for the year 2018-2019. Starting from the stage of reporting cases to its adjudication, the victim has to face a lot of hurdles. And at each stage of CJS, cases keeps on dropping. That is why the prosecution of rape cases is lower relative to the reported cases, and the conviction rate is even lower.

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Despite widespread protests, media attention against the brutal cases of rape against women & girls, no reform has been made to the system. The police, which is at the front foot of CJS have failed to perform their vital role in administering justice. In such a situation, it is expected that rule of law cannot exist. Also, the Criminal Law Amendment Act of 2013 & the Criminal Law Amendment Act of 2018 did not change the situation. Despite the establishment of fast track courts, there has been significant growth in rape cases and delay in adjudication of those cases. This points to the failure to prevent the commission of rape. The CJS should not only administer justice to the victim & reforming the criminal but also to prevent the happening of the act.

There has been a gradual change in the gravity of committing rape. The famous cases of Nirbhaya, Kathua, Unnao, Hathras depicts the inhuman nature of a man. The mourning of the entire country & the anger towards the CJS has still not being acknowledged. Failure of CJS is the reason people were celebrating the killing of the 4 suspects in the gang rape of Hyderabad. This act of police was praised across the country because people can no longer keep their silence on the failing CJS. But taking law & order into our hands is no solution where the accused does not undergo a fair trial. And so there needs to be a necessary reform in the present CJS, to eliminate the cause of potential crime itself.

What Can be Done?

Now, the burden is on the Indian Government to stop letting rape to be treated as a political issue. The necessary reforms had to be made to ensure that the CJS is responsive to the needs of the survivor. It must be reformed to handle the increasing rape cases that are pending in the country. The existing laws need to be implemented & be made more effective & also to introduce procedural reforms. A more responsible & accountable police force handling rape cases with high sensitivity is the need of the hour. Furthermore, some important recommendations of the Malimath Committee should be implemented to meet the ends of justice in the present time. However, the reforms should be made with utmost care & caution. A more reformative just curious needs to be focused upon by our policy-makers.

Conclusion

Presently, the CJS is in a state of peril. India needs a more clear policy by making some necessary reform in the provisions of CrPC, IPC legislated in pursuant to CJS. Such reform would be ineffective unless & until improvements are made in the police, judiciary, prosecution & in prisons. The roots of the existing laws have to be much stronger to deliver justice to the victims.


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