The recent brutal rape and murder of a young veterinary doctor Disha in the suburbs of Hyderabad created an unprecedented furore across the country.
All individuals regardless of their personal affiliations unanimously condemned the heinous and inhumane attack on an innocent girl and demanded that the government explore ways and means through which the accused, who allegedly committed the heinous offence, could be executed without any further waste of time.
The sequence of incidents that unfolded thereafter is sub-judice and therefore, it would not be prudent on my part to comment on issues pending before the apex court.
The gist of the larger public demand immediately after the unfortunate incident was to complete the investigation forthwith and execute the convicts even at the expense of bypassing a few fundamental tenets of the Rule of Law.
There are multiple facets to this demand. Primary among them is the all-pervasive disillusionment of an ordinary citizen with the judiciary due to the procrastination involved in the judicial
process.
The convicts in the Nirbhaya case conveniently serving their death sentence even after seven years elapsed from the date of commission of the brutal sexual assault and murder is cited as a glaring example of such procrastination.
Clamour for instant justice gained traction subsequent to the commission of the aforementioned heinous offence which eventually impelled the Government of Andhra Pradesh to enact a new legislation namely The Andhra Pradesh Disha Act- 2019 (will be referred hereinafter as Act for the sake of brevity. However, the legislation is yet to secure assent of the Governor or the President, as the case may be, and therefore legally it is to be referred as Bill).
Understanding The Disha Act
The intended primary objective of the Act is to ensure expeditious trial of the accused arrested in connection with the “specified offence” (defined under Section 2(e) of the Act) perpetrated against women.
Criminal law, including the Indian Penal Code and the Criminal Procedure Code, are part of Part III, Concurrent list, of the seventh schedule of the Constitution of India and therefore, the State Government has concurrent powers to amend the IPC and also the CrPC.
The State government exercised precisely this authority to add Sections 354E, 354F and 354G to the IPC and also prescribed stringent punishments for the foregoing sections. The State Government further prescribed death penalty, as an alternative, for offences which fall under the ambit of Sections 376, 376D and 376DA.
The Act further seeks to amend Section 376E with the sole intention of prescribing capital punishment for the convicted if the following conditions are satisfied:
The character of the crime must be of heinous nature.
Adequate conclusive evidence must be secured.
Circumstances must warrant exemplary punishment.
Notwithstanding undefined in the IPC, the word “heinous” has been interpreted by courts in a catena of judgments. However, neither the Disha Act nor the General Clauses Act define the term conclusive evidence and also the Act failed to define the term “circumstances”.
Probably, the same would be decided on a case-by-case basis or based on the facts of the case.
Necessary additions to various sections (Section 173, Section 309, Section 374 and Section 377) of the Criminal Procedure Code were also made for ensuring seamless procedure.
The Act also enables the State government to establish special courts to deal with cases lodged against perpetrators alleged to have been involved in any of the specified offences defined under Section 2(e) of the Act.
The Act further seeks to provide discretion (may) to the State government to incorporate a registry, “Women and Children offenders registry” to record, in electronic form, full details of persons involved in “specified offence”.
The Act also empowers the political executive to constitute a “Special Police Team” in every district to be headed by an officer of the Deputy Superintendent of Police rank to deal with the specified offences as defined under Section 2(e) of the Act.
21 days for the completion of the trial
The general perception that the convicted would be executed in 21 days ( 7 days for the completion of the investigation and 14 days for the completion of trial) after the enactment comes into operation is flawed for the following reasons.
The State government could possibly ensure infrastructure and logistics for the completion of the trial within the stipulated time. However, can the defence ably defend his/her client in such a short duration? Denial of fair trial is one of the primary reasons cited for challenging the death sentence of the Nibhaya convicts before the Supreme Court of India.
As per the Act, the appeal must be decided in 45 days which categorically means that the right to appeal of the convicts is allowed.
Once the appeal is decided by the High Court, the convicts may prefer an appeal in the Supreme Court by taking recourse to the Special Leave Petition (Criminal) further delaying their execution. The appeal made in 2014 before the apex court in the Nirbhaya case was only decided in 2018.
Clemency petitions if filed before the President to grant pardon, reprieve, respite or commutation could take its own time before which the person who sought clemency should not be executed.
The legislature should enact legislations for ensuring speedy trial and therefore, the intention of the State Government for ensuring speedy trial through Disha Act is unambiguously bona fide.
However, the general perception among the public that Disha Act would enable trial courts to execute the convicts within 21 days cannot be realised due to the aforementioned rights or corresponding restrictions.
Disha Act is half-baked
The Disha Act also fails to address the following issues:
Punishment for abdication of responsibility on the part of law enforcement agencies, in dealing with “specified offence”, did not find any mention in the Act.
None can deny that local police in Disha’s case exhibited ignorance of law (ZERO FIR). As per media reports, abusive comments were also passed against the complainants of the deceased and there is no provision in the Disha Act to fix responsibility on a public servant who behaves in a lackadaisical manner.
Are we impliedly suggesting that such behaviour is the norm and therefore, condoned it? Or Is the government of the opinion that IPC comprehensively covers dereliction of duty? There is a general impression among the public that if the local police had acted swiftly, Disha would have been saved and therefore, the State government should answer what steps it is contemplating to bring such negligent public servants to book.
Creating awareness among the public against atrocities perpetrated on women would also help change the behavioural patterns and is one pre-emptive step which the State government should have included in the Act.
Witness protection scheme also finds no mention in the Act.
Compensation to the victim from the fund exclusively created for the purpose on the lines of Nirbhaya Fund also finds no mention in the Act.
Reforms in the Criminal Justice System at the Union level is unequivocally the need of the hour. In the year 2000, the then National Democratic Alliance government constituted a committee under the chairmanship of Justice V.S Malimath to provide comprehensive recommendations to reform the century-old criminal justice system. Some of its recommendations provide a direction to the dispensation of the day to enact suitable legislations for dealing expeditiously with heinous crimes.
Right to Speedy Trial Vs. Right to Fair Trial
Right to Speedy Trial in criminal cases is unequivocally an inalienable right under Article 21 of the Constitution as laid down by the Supreme Court of India in a slew of cases starting with Katar Singh vs. the State of Punjab.
However, Right to Fair Trial is also inherent in Article 21 and in the case of Zahira Habibullah Sheikh & And v. State of Gujarat the Supreme Court held that fair trial means:
a) Trial before an impartial judge;
b) A fair prosecutor;
c) Atmosphere of judicial calm; and
d) A fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated.
Paying complete heed to the aphorism “Justice delayed is justice denied” without paying due regard to another aphorism “Justice hurried is justice buried” would not yield desired dividends. Therefore, legislation enacted even with a bona fide intention should strike a reasonable balance between the two possibly contradictory rights.
Article 13 of the Constitution of India says every legislation enacted will be tested on the touchstone of constitutional safeguards incorporated under Part III of the Constitution of India (Fundamental Rights) and therefore, if any provision of a legislation militates against the very core of any of the fundamental rights guaranteed under Part III of the Constitution, it might not pass the muster of legal scrutiny.
Written by Umesh Chandra PVG, High Court Advocate