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Overhaul, Not Tinkering

Overhaul, Not Tinkering

Unlike in the past, when the month of April started with the media informing the general public about the applicability of the new budgetary provisions with a list of certain items that have become expensive or cheap this year, the month started with uproar, protests, fasts, allegations and counter-allegations between the opposition and the ruling party. We did not even notice whether the finance Bill got the final nod or not. Of course, it did amid opposition.

We had the farmers protesting in Maharashtra and Delhi, students shouting slogans against unemployment, paper leaks, and people belonging to the lower castes agitating against an order of the Supreme Court and so on. The worst amongst all was the way Kathua and Unnao cases were handled. The opposition demanded action while the ruling party sprang into action only when things went out of its control.

It is true that a large majority, including Swati Maliwal heading the Delhi Commission for Women, who went on an indefinite fast, demanded death penalty for the culprit in child rape cases. And just to prove that the government believes in action, it passed the “criminal law (amendment) ordinance, 2018, providing death penalty to offenders who rape girls below 12 years of age.

The government may have thought that the death penalty shall act as a deterrent and shall reduce the number of rape cases. However, experts have an entirely different opinion. Considering the recent judgement announcing capital punishment to offenders in the Nirbhaya case in 2013, crime against women has only shot up. According to the national crime records bureau (NCRB), the incidents of reported rape have risen by 60% since the Nirbhaya case judgement. In other words, the initial thought that death penalty shall act as a deterrent was flawed.

In the present case also, death penalty may not act as a restraint. Instead, the offender may try to kill the victim to avoid punishment. It has also been observed that more than 94% of the crime that takes place under the child protection Act is done by close family members, relatives or friends. In such cases, the victim may not also come forward to report the crime, thinking that the offender shall be given death penalty.

The NCRB report also shows that 90% of the child rape cases were pending trial in 2016 with a conviction rate of only 28%. Not only this, there is a backlog of more than 20 years in bringing these cases to trial. The biggest flaw is that many provisions of the child protection Act (POCSO), 2012 are not being implemented even now. The police personnel entrusted with the responsibility of its implementation have not been trained properly on many aspects of the law.

A survey done by a non-profit in Bengaluru in 2015 reveals that more than three-fourth of the surveyed police personnel has not undergone any formal training under POCSO. In such circumstances, it should not come as a surprise if such people help in protecting the interest of the culprit, instead of the victim. For instance, many of the officers were not aware that the consent of the victim is required before conducting any medical examination. Not only this, 90% of the surveyed officials had an opinion that girls are more prone to sexual abuse than boys.

The same organisation revealed that the special courts set up by the government largely help the accused. The acquittal rate in such courts is higher than in the normal courts. Figures suggest that the rate is as high as 75 to 90%. In other words, in a normal court, the justice is delayed but in a special or fast-track court, justice remains elusive. It only points out that in both cases, only a few get justice while the offenders are rarely punished.  

Another approval that the President gave was for the fugitive economic offenders ordinance 2018. It empowers the government and its agencies to confiscate the properties of those who flee the country without paying their dues to the banks or are termed as economic offenders. Legislators are of the view that the existing law – prevention of money laundering Act – should have been strengthened, instead of passing an ordinance.

The ordinance came as a knee-jerk reaction to the criticism that the government has been facing ever since Vijay Mallya, the liquor baron and a wilful defaulter fled the country. Things became worse when Nirav Modi, another defaulter, did the same thing, without paying his dues. In such cases, if the government thinks that the ordinance will help it in bringing them back to the country, the thought is again flawed. The offenders may ask their lawyers to present their case while holidaying in countries like the UK.

The fact is that we are not even close to getting the liquor baron back as extradition proceedings in the UK courts are moving at a snail’s pace. The recent meeting that Modi had with his British counterpart Theresa May did not indicate any breakthrough on this front. Similarly, in the case of Nirav Modi, though the government agencies have attached his properties in India, the American court has not approved the sale of his assets lying in other jurisdictions. However, the court permitted his US-based entity to offload its assets.

India is yet to pass a model law based on the law mooted by the UN for cross-border insolvency. While the government may have tried to silence its critics for a while by passing draconian ordinances, they do not address the real issues affecting the Indian judicial system.

There are many who lose their lives, attending hearings, and filing affidavits in the courts. They neither get justice in the court of law nor get respite when they are alive.

If one is asked what the biggest problem that ails the Indian judicial system is, the answer may be “access”. Yes, there are many who have to travel long distances to reach the courts, only to face an adjournment. In such a scenario, people who do not have the means to reach and appeal to a High court against a lower court’s decision, may already succumb to injustice, leading a life of despair. 

A study reveals that there were only 2.5% chances of a High Court decision being appealed to the Supreme Court. Statistics reveal that the appeal rate for those staying in Delhi was around 10% a decade ago while it was only 1.1% for those staying in Tamil Nadu.

The second issue affecting the judiciary would be the long and cumbersome procedures and technicalities that affect everyone in the system. But has an adverse impact on those with fewer resources. And the third is the quality concerns, caused by uncertain and inconsistent application of law on arbitrary basis.

We have a limited number of judges against more than 30 million cases pending before various courts. The Supreme Court’s publication titled “Subordinate Courts of India: A report on access to Justice, 2016” shows that the subordinate courts are able to complete trial only in 25% of the criminal cases filed under the Indian Penal Code or the prevention of money laundering Act, prevention of corruption Act etc. in one year. The ratio stands at only 13% in the cases that came up for trial under the Indian Penal Code alone.

Another report shows that globally there are only 3 million pre-trial or remand prisoners, constituting around 27% of the total people in prison. As per a report released by the NCRB, 67.2% of our prison population comprises of under-trial prisoners. In other words, two out of every three prisoners in India are under trial or have been accused or charged with an offence but has not been convicted. Simply put, they can still be presumed to be innocent! It also says that 60% of the police arrests that take place in India are either unjustified or unnecessary.

Small wonder that the conviction rate is too low. The 239th report submitted by the Law Commission of India noted that delay in investigation and prosecution erodes the confidence in the rule of law.  In other words, the massive protests throughout the country may have forced the Indian government to adopt the ordinance route, but the exercise seems to be futile unless the Indian judicial system is overhauled completely to avoid unnecessary delays and overcome slow investigation, trial and conviction. After all, Justice delayed is justice denied.

The month of April may have ended on a pleasant note with Asaram’s conviction in the Jodhpur rape case. But the fact is that it took around five years for the judges to decide upon the case. It does give a positive message but a lot has to be done to have a faster disposal of cases and improvement in the conviction rate. The ordinance may act as a temporary filler but it offers no solace.

(The writer, a company secretary, can be reached at

(Published on 30th April 2018, Volume XXX, Issue 18)