At a time when Bangalore is witnessing an unprecedented number of sexual assault incidents in schools, it is time that we examine how our fast track courts are working in the city to address these crimes. The fast track courts (FTCs) have been set up in the State to as a response to tackle the serious cases of sexual assault.
The FTCs were suggested by the Union government after the 2012 case of rape in Delhi. The Justice J S Verma Committee Report had recommended the setting up of FTCs for rape and sexual assault cases. The question is, are they really delivering what they promise?
In August, 2013, the Karnataka government issued an order to set up 10 fast track courts across the state for trying cases only of rape and sexual assault under Section 376 of the Indian Penal Code. Out of these, three FTCs were set up in Bangalore in December, 2013.
We conducted a detailed study of the working of these courts. A total of 167 cases of sexual assault and rape have been allotted to the three FTCs in Bangalore in the last one year out of which only 12 have been disposed since December 2013.
Out of these 12 cases, 11 cases resulted in acquittals, and only in one case, there was a conviction. Even this conviction was only for the offence of “attempt to rape” and not rape itself. With regard to the special court set up to deal with cases of sexual assault against children, there were 48 cases disposed since December 2013, out of which 46 resulted in acquittals and only 2 in convictions.
A detailed analysis of the 12 judgements show that in the 11 cases that resulted in acquittals, all the acquittals were because the rape victims and their family members turned hostile during their cross-examination and denied all allegations of rape. We should be worried about this.
Women’s activists have been arguing for decades that in cases of rape and sexual assault, many victims fear for their safety when they have to testify and the stigma that follows the victims of sexual violence is a real obstacle to their efforts to continue with their lives.
The Supreme Court held in Zahira Habibulla Sheikh Vs State of Gujarat and others in 2004 that when witnesses turn hostile due to threats, coercion or monetary considerations at the instance of those in power, courts have to take a participatory role and judges cannot be mere tape recorders recording evidence. It held that the state and the courts have a role in protecting witnesses in sensitive cases to ensure that truth is elicited and they are able to testify with safety and protection.
The 198th Law Commission Report on Witness Protection recommends various measures for protection of witnesses in “serious” cases which include cases of rape and sexual assault. Special victims and witness protection programmes have also been instituted as reforms in many other jurisdictions particularly in sexual assault cases.
Eluding speedy justice
In the sole case which resulted in a conviction for the offence of attempt to rape, although the judge found the version of the victim believable, he relied on the testimony of the medical expert stating that using the two-finger test, the victim was found to be habituated to sexual intercourse and that there was no evidence of recent sexual intercourse.
This leads us to question, “What is really going on in the FTCs?” If FTCs are meant to provide speedy and effective justice to victims of sexual assault, the empirical data certainly does not reflect this. Procedurally, FTCs are not disposing cases any faster than regular courts, nor are they substantively giving better judgements.
Bangalore shows a shocking record of only one conviction for attempt to rape in an entire year. Despite several Supreme Court judgements, the same discriminatory medical tests are used to state that a woman is habituated to sexual intercourse.
The mere setting up of fast track courts in this manner would be a completely ineffective measure of reform unless there are special procedures for trying sexual assault cases to ensure that they are tried speedily and judges and prosecutors are trained in the treatment of complainants and evidence in sexual assault cases.
There is also a need for witness protection services, so as to safeguard the interests of the victim of sexual assault before and after they have provided evidence.Without any of these measures, we would be doing nothing to assure protection and justice to victims of sexual assault.
(The writers are with Centre for Law and Policy Research, Bangalore)