Legal Representation in Rape Trials

Rape is one of the most inhuman crimes against a woman, but most often, no voice is raised against this shameful crime. Victims of this brutal crime do not generally report it to the police and in some cases, not even their families encourage them to file a report as they are worried about how the society will react. This article elucidates the everyday socio-legal processes that underline the making of rape trials in Indian courts.

Every coin has two sides, sometimes women make fake complaints to taint the life of a man. In some cases, maybe the woman’s parents compel her to make a complaint against the boy she loves since the law shows a lot of consolation towards the girl. There must come an amendment which equalizes the burden of proof between both the parties. Thereafter, the deceptive of judicial reform lies in folding in the measures of reform into the structure of the trial without repositioning the character of the rape trial as a sexualized prospect.

The judiciary in India is already disturbed with a lot of work and therefore, rape case judgements are often delayed. In some cases by the time the verdict is pronounced, either of the parties may have died. Therefore, there have to be speedy trials in rape cases so that the victims get justice at the earliest. There must be strict laws made which have to be amended for the accused i.e. direct encounter or giving them death and it has to be very strict such that anyone thinking of committing this crime is deterred from such thoughts and actions.

Introduction

Rape victims in India are survivors who have faced significant barriers to obtaining justice and critical support services because rape is considered a disgrace that has existed in society for long. The word rape means the “violation of a woman “. It is very difficult for rape victims to come out to the public about this situation or trauma.

Rape in India is a cognizable offence. Therefore, there are many provisions in various Acts for the rape accused regarding his punishment or to provide relief to the victims. In India, rape laws and it’s punishment have been defined under Section 375(1) of Indian Penal Code, 1860.[1] The laws have been amended in 1983, in which Section 376(2) i.e. Custodial rape, Section 376(A) i.e. marital rape, and Section 376(B to D) i.e. sexual intercourse not amounting to rape was also added.

There is also a provision for imprisonment of 2 years and, a person may either or also be liable for fine if found disclosing the name of the victim. The provisions regarding the medical examination of the victim have also been amended. Earlier, the ‘ two fingers test’ was used to prove whether the assault had been committed or not. This is no longer considered an appropriate test to prove it as it violates the rights of a victim to privacy, physical and mental integrity, and dignity. Therefore, proper measures should be taken to ensure the victim’s safety, and also there should not be any unrestrained or unlawful interference with her privacy.

Illustration

In December 2012, a 23-year-old physical therapy student was gang-raped by six men on a bus in New Delhi. It was found that she was in a critical condition and died of her injuries in a hospital, less than two weeks later.

After following Nirbhaya’s death the Prime Minister declared that even though she may have lost her battle for life, it is up to us all to ensure that her death will not be futile and make the Indian society, a better and a safer place to live for all women.

Case Analysis

Delhi Domestic Working Women’s Forum v. Union of India[2]

In this case, the Supreme Court has laid down guidelines for rape trial cases in courts:

  • Sexual assault complaint cases should be provided with legal representation. Such a person should be well familiar with it. The advocate’s role is not merely of explaining the nature of proceedings to the victim but to prepare for the case and assist her. He/She must also provide her with guidance as to how she might obtain the help of different nature from other agencies like psychiatric or medical consultation.
  • Legal assistance should be provided at the police station as guidance and support of a lawyer at this stage would be of great help to the victim as long as the victim is in a grieving state.
  • The police as a duty should inform the victim of her right to a counsel before being interrogated.
  • A list of lawyers who are willing to act in such cases should be maintained at the police station.
  • Advocates shall be appointed by the court on an application by the police, but so that the victim is not questioned without one, the advocates shall be permitted to act at the police station before leave of the Court is sought or acquired.
  • The anonymity of the victim must be preserved, in all rape trials.

The State of Maharashtra and P.C. Singh v. Dr. Praful B. Desai and Anr. [3]

Video conferencing records can be used as evidence in rape trials. Based on decisions of the Supreme Court, that evidence includes oral, documentary as well as electronic records which include video conferencing records which means that witness statements can be submitted through video conferencing. The victim would feel comfortable and give answers without any hesitation or fear, through this method.

Minimum punishment in rape cases:[4]

Under Section 376(1) of IPC, whoever commits rape shall be punished with imprisonment which is not less than seven years but maybe for life or for a term which may extend to ten years and be liable to fine unless the women raped is his own wife and below the age of twelve years. In such cases, it would be punishable with imprisonment to the extend of two years or with a fine. Provided that the court may have special reasons to be mentioned in the judgement which imposes a sentence of imprisonment for a term of less than seven years.

Case Law

Chairman, Railway Board v. Chandrima Das [5]

A practicing advocate of the Calcutta High Court filed a case under Article 226 of the Constitution of India against the various railway authorities of the eastern railway claiming compensation for the victim. Smt. Hanufa Khatoon, a Bangladesh national was raped at the Howrah station by the railway security men. The High Court in this matter awarded Rs. 10 lakh as compensation.

Conclusion

The court has to make many amendments and changes if the rape law is to function effectively in India. The sentence of punishment, which ranges from one to ten years, where on an average the accused gets away with three to four years of rigorous imprisonment with a very small fine. In some cases, where the accused is resourceful or authoritative, often he settles by paying huge amount of money and gets an acquittal. The courts have to understand the fact that these ruthless criminals who even sometimes torture their victims which includes small children are not going to be intimidated or nobilitated by such a small period of imprisonment. Therefore, in the best interest of justice and the society, these criminals should be sentenced to life imprisonment or death.

The number of victims continues to increase, destroying the very soul of the women but the law remains stable and obsolete. Rape is an act of violence that happens to be intimate through sexual means. The Amendment of 1983, has brought some important changes in the existing laws of rape as a retort to the growing people’s opinion demanding more rigorous anti-rape laws.

Certain punishments which are severe in a time-bound manner, have some disincentive impact on the rapists. An arrest alone may not establish a strong societal response. Lengthy prison sentences have some behavior-altering disincentive values. Capital punishment should be made mandatory for criminals who commit rape as it is a much worse offence than murder as far it’s impacts are concerned by many well-known jurists and public men who have advocated it.

Questions

  1. As minimum punishment wasn’t specified or commendable in the amendment, should the judges decide that there are ample reasons as to why the punishment can be reduced?
  2. Why are there no special concessions given to a child rapist other than punishment of 7 to 10 years?
  3. Why there is so much delay in judgements given for rape trials despite having such laws?
  4. Why should the Burden of proof must lie on both the parties in a rape trial?
  5. How can we empower the victims to raise their voice against the social stigma?

References


  • [1] See Ratanlal & Dhirajlal, Indian Penal Code 1860, 10th Ed., Eastern Publication House 2004, at pg. 3
  • [2] 1995 SCC(1) 14,JT 1994(7) 183
  • [3] Criminal Appeal 476/477 of 2003 (SC)
  • [4] The Criminal Law (amendment) Act, 1983,(Act 43 of 1983)
  • [5] AIR, 2000 SC 988

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