“Medical officer has deposed in her evidence that... no external injuries on the body could be seen...That hymen was ruptured and admits two fingers... Medical officer has opined that patient is used to an act like sexual intercourse.”
“There are many houses surrounding the house of the victim girl. If she had made any sound, the neighbours would have come to the help of the victim... husband of the victim girl has stated that after seeing the incident through the window, he was crying, victim was not crying. These are the above reasons that show that there is a doubt regarding forcible sexual intercourse by the accused with the victim girl.”
These are just two examples of the reasoning adopted in judgment after judgment of the 10 special fast track courts that were established in Karnataka in late 2013 solely for trying cases under Section 376 of the Indian Penal Code (rape and sexual assault) and for cases of child sexual abuse. Our study of these special courts revealed that of the 107 judgments disposed of by these courts from the time of their establishment till the end of 2014, 89 resulted in acquittals. Over 80 per cent of the acquittals were due to the complainant or key witnesses turning hostile. Twenty-five per cent of these judgments make explicit reference to the two-finger test and to the victim being habituated to sexual intercourse, despite the Supreme Court banning the use of the two-finger test and holding that prior sexual history of the victim is irrelevant. While the National Crime Record Bureau statistics show that the general conviction rate in 2013 for rape cases all across the country was 27.1 per cent, the conviction rate in these special fast track courts was only 16.8 per cent, lower than in the regular criminal courts!
The appeal of fast track courts has alternatively waxed and waned in the Indian political imagination. Fast track courts have often been set up amid much fanfare as the solution to extensive judicial delays and miscarriages of justice, only to be suddenly shut down when priorities change and funding needs to be reallocated. This was the case, for example, with the 1,734 fast track courts that were established across the country with a grant from the 11th Finance Commission in 2000. In 2011, the central government stopped funding these courts. Due to the withdrawal of these grants, many states closed down their fast track courts. The allure of fast track courts again resurfaced in the aftermath of the horrific Nirbhaya gang rape in December 2012. In 2013, many states including Karnataka established special fast track courts exclusively to try cases of rape and sexual assault. Last year, in response to a spate of child sexual abuse cases in schools in Bangalore, the chief minister again stated that the perpetrators of these crimes would be tried in fast track courts.
While the central and state governments have been quick to set up (and close down) fast track courts, there is little or no thinking as to how these fast track or special courts are to function and, most importantly, how they are to avoid the problems that plague the rest of the criminal justice system. Our empirical study of these courts shows that they are neither fast nor more effective in dispensing justice. Even if we were to go beyond the numbers, the performance of these courts has been unflattering. The special fast track courts in Karnataka have few resources and most do not even have dedicated courtrooms. Instead, a judge from an existing courtroom presides over these cases in addition to his/her normal caseload, making the term fast track itself a misnomer. These courts have no fast track procedures or any victim or witness protection measures to support victims to enable them to testify in safety and reduce the likelihood of witnesses turning hostile.
What then needs to be done to ensure that special sexual offences courts are actually effective in securing speedy and substantive justice? One of the biggest problems with the special fast track courts set up for trying sexual assault cases is that they lack a legislative foundation. As a result, these courts tend to be set up on an ad-hoc basis in response to political compulsions and are often closed down in an equally ad-hoc manner. There is no framework setting out the purpose of these courts, their mode of functioning or any special procedures to be followed that would distinguish them from “normal” courts. To ensure that such special courts are set up as permanent institutions and serve the purpose for which they are established, there should either be a separate law establishing these courts or amendments to the Criminal Procedure Code, mandating how these special fast track courts should function.
Second, serious steps need to be taken to reduce the likelihood of victims and witnesses turning hostile as this is one of the main reasons for the high rate of acquittals. Special courts for sexual offences that have been set up in other jurisdictions such as Spain, Liberia and South Africa have special in-built procedures in their foundational legislations such as powers to order speedy trials within a fixed time frame to reduce the likelihood of victims turning hostile, powers to issue a range of protection and social assistance measures including anonymity and judicial protection and to order trials in-camera. By contrast, the special fast track courts set up post-Nirbhaya have no such protection tools or measures and even the presiding officers of these courts have no idea how these courts are different from the other courts.
Finally, there is an urgent need for judicial officers, prosecutors and court registrars to receive special training in dealing with sexual violence cases, which should include training in the law as well as modules on sexual equality, non-discrimination and gender violence. Their lack of training and awareness of major Supreme Court cases is reflected in the outdated and openly sexist reasoning in many of the judgments and the reliance on obsolete methods for the consideration of medical evidence. It is only when these issues are addressed that special sexual offences courts could even begin to serve the purpose for which they were established.
Jayna Kothari is a founder member of Centre for Law and Policy Research, Bangalore.
Aparna Ravi is a senior researcher at CLPR