Rape Trials: Amicus Curiae Indira Jaising Points To Sentencing Anomalies

The case, Nipun Saxena v Union of India, was heard by the Supreme Court bench of justices Madan B Lokur and Prafulla C Pant at length today.

Amicus Curiae in the case, senior advocate, Indira Jaising began her submissions by giving an overview of the case. About six petitions, are listed in the case, seeking the Court’s directions to the Centre to take effective steps to contain sexual offences. The case, which has been pending since 2012, can now expect to make substantial progress, after having been listed before different benches earlier.

As Jaising was appointed amicus in the case by the erstwhile social justice bench comprising justices Lokur and Uday Umesh Lalit, in 2015, there is considerable expectation about the outcome.

During a previous hearing, Jaising had disfavoured national register of convicted sex offenders, on the ground of privacy, and had lamented absence of sexual offences victims compensation schemes of the state Governments, absence of any provision for interim compensation to the victims in most States, absence of effective witness protection schemes like the one adopted in Delhi, the unspent Nirbhaya fund, etc.

Today, she advanced her arguments on these issues further, by pointing out serious sentencing anomalies in rape cases in the Supreme Court. She asked why there is less number of cases of adult women being raped come to the Supreme Court as compared to child rape cases, and said the reasons are inexplicable.

She pointed out that the special reasons given by the courts for sentencing below minimum are totally irrelevant.

On the other hand, she said there have been Constitutional challenges to mandatory minimum sentence, for example, in Canada.

Witnesses turning hostile

Asking why women victims of rape turn hostile witnesses, Jaising said, they do so, because they can be threatened. According to her, only Delhi has formulated a Witness Protection Programme. Citing an example, she said the Delhi Legal Services Authority gave a woman victim of rape, unlisted mobile number for her use and another residence, throughout the trial.

If the accused are known to the victim, harsher laws can’t help, she explained. A wife will not file FIR against her husband, even if she knows he raped her child, she said. That is why, she said, Track II system to care of such cases is required. Track II system will help the victim to approach a recognised social welfare agency and report the crime, which could lead to counselling, and medical assistance. Every mother wants sexual abuse of her child to stop, she said.

She suggested that instead of spending the unspent Nirbhaya Fund, which runs to crores of rupees, on creating infrastructure, it makes sense to spend on creating such Track II systems.

She agreed with Justice Lokur that banishing an accused from the community would not serve the purpose, as it would not result in reforming the accused.

Jaising deplored the fact that India’s criminal justice system is dysfunctional. Citing the recent Uber case, she said the accused was on bail when the crime occurred, and he repeated it because he gained the confidence that he could get away with the crime.

Saying that Nirbhaya was a wake-up call, she said that if a police officer refused to register FIR on reporting a crime, he should be prosecuted. The object is to prosecute a crime and take care of the victims’ interests, she added. In many cases, she said police refused to register a case, telling the victims not to bring family matters.

She told the bench, that although law has been changed to bar posing of embarrassing questions to the victims during the trial, the victims are asked to reenact the crime in the presence of the Judge. No wonder, women hate the criminal justice system, she said.

Jaising will continue the submissions tomorrow.

This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.