Media trial and justice

Rape cases in India

In India, a girl is raped every three minutes. Many victims are also murdered, some of them in the most bestial manner imaginable. While a few of these cases become cause célèbre, the remaining ones drag on and on for decades as the administration is corrupt and notoriously soft, and the wheels of justice move painstakingly slowly. The speed is accelerated if the media makes a hue and cry, and the people hit the streets.

Barely days after the apex court’s verdict in the Nirbhaya case confirming the death sentence for the four rapists, the rape and murder of a 23-year-old woman from Rohtak raises many questions about the efficacy of the justice system. It is deeply disturbing, not only for the brutality of the crime but also for the baffling silence of the civil society which fulminated to the skies in the Nirbhaya case.

The Rohtak victim suffered almost the same barbarity as rapists pushed a sharp-edged weapon into her private parts and then killed her, smashing her head with a brick. Yet, after a few days, another horror story of rape from Greater Noida jolted the society in which a family was waylaid on the highway and all four women in the vehicle were allegedly raped while a male member was shot dead for resisting.

Though the district administration has denied the allegation of rape, the women are firm on their complaints. It was almost a replay of the incident on the highway in Bulandshahr on July 31 last year where a mother and daughter were raped.

It is difficult to say that the accused in all these cases will be brought to justice expeditiously as justice in many cases is media-driven. Perhaps, this is the impression that gives a sense of impunity to criminals as every incident does not hog media limelight.

In February 2012, prior to Nirbhaya case, Kiran Negi was raped and murdered in Dwarka, Delhi, in a manner more brutal than Nirbhaya’s. Her breasts were chopped off and a bottle was inserted into her private part. She was left to die in a deserted field where she writhed in pain for two days and then died. Her case is yet to be decided by the apex court.

Two cases of rape in India created an unprecedented uproar and led to the widespread amendment in criminal laws. The first one is the incident of custodial rape in which Mathura, a young tribal girl, was allegedly raped by two policemen on March 26, 1972, inside Desai Ganj police station in the Chandrapur district of Maharashtra.

The Supreme Court in Tukaram vs State of Maharashtra (1979) ruled that the sexual intercourse in question is not proved to amount to rape and acquitted the accused noting that she did not raise any alarm and that there were no visible marks of injury on her, thereby suggesting no struggle.

It created such a hullabaloo that the rape law was amended. The Criminal Law (Second Amendment) Act, 1983, introduced many amendments of far-reaching consequences. Section 114(A) was added to the Indian Evidence Act which states that if the victim says that she did not consent to sexual intercourse, the court shall presume that she did not consent as a rebuttable presumption. So, the onus was shifted on the accused to rebut her claim.

The Indian Penal Code (IPC) was also amended to enlarge the definition of rape. Further, the concept of custodial rape was introduced and the burden of proof of innocence was shifted on the accused.

Another case that shook the nation was that of Nirbhaya on December 16, 2012, in a moving bus in Delhi. It led to another round of sweeping amendments in the criminal laws within months, though it was pending for several years. Criminal Law (Amendment) Act, 2013, amended the IPC, the Code of Criminal Procedure, 1972, the Indian Evidence Act, 1872, and the Protection of Children from Sexual Offences Act, 2012.

Activating courts

Thus, the uproar in media impelled not only Parliament to act, but it seems to have activated the court also. Justice Dipak Misra, in his judgement on the Nirbhaya case, has written: “It is manifest that the wanton lust, the servility to absolutely unchained carnal desire and slavery to the loathsome bestiality of passion ruled the mindset of the appellants to commit a crime which can summon with immediacy ‘tsunami’ of shock in the mind of the collective and destroy the civilised marrows of the milieu in entirety.”

How far does the public opinion influence the decision of the court and how far is it desirable? In Santosh Kumar Satisbhusan Bariyar vs Maharashtra (2009), the Supreme Court held that public opinion does play a crucial role during sentencing, and therefore, it is important for the court to declare that public opinion should not be a relevant factor for punishment given the dominance of media trials and political considerations while awarding death sentence. However, in Gurvail Singh vs Punjab (2013), the court took a contrary view that public opinion is a relevant factor which influences decisions and that public opinion should be reflected in the judgement.

Many a time media publicity prevents the miscarriage of justice. Jessica Lal, Priyadarshini Mattoo, Ruchika Girhotra, et al, would never have got justice but for the media trial. Jessica’s killer Manu Sharma, acquitted honourably by the trial court, was convicted by the high court only because of media trial.

Priyadarshini’s rapist and killer Santosh Singh, the son of an IPS officer who was posted with the Delhi Police when the case was being investigated, was acquitted. The appeal against it kept hanging fire in the Delhi High Court for six years as the documents could not be translated from Hindi to English. But once the case was taken up by the media, Santosh Singh was convicted within a record 41 days.

The question is what will happen to those faceless victims who do not make headlines in the media?

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