Unnao rape-murder case: UP govt setting up fast track courts is eyewash; country needs legislative intervention

The gruesome rape and murder of the young veterinarian in Hyderabad and the Unnao rape and murder case have shocked the conscience of the country. As an immediate response to the Unnao rape, the Uttar Pradesh government has announced the setting-up of 218 fast track courts in the state to deal with rape cases. Uttar Pradesh is reported to have 25,479 pending cases of rape and sexual crimes against women and 42,379 pending cases related to sexual crimes committed against children as on 30 June, 2019. These numbers are staggering and it is unclear how even 218 courts can address the total of 67,858 sexual assault cases pending in the state. It is however more important to address the issue of fast track courts because special fast track courts to take up rape cases are set up as an immediate response every time the country witnesses a heinous rape crime. Are special fast track courts effective and do they indeed offer speedy and substantive justice? In 2012 after the Jyoti Singh case, special fast track courts were set up all over the country to try rape and sexual assault cases of women. Following this, the Karnataka government set up 10 special fast track courts for trying cases of rape and sexual assault under Section 376 of the IPC and also special courts under the POCSO Act for trying cases of sexual offence against children. [caption id=“attachment_7752621” align=“alignleft” width=“380”] Police disperses protesters agitating against the UP government in the aftermath of the Unnao rape-murder. PTI[/caption] The Centre for Law and Policy Research did a detailed study of the working of the 10 courts for an entire year from 1 January, 2014 to 31 December, 2014 in its report. The results showed that the 10 special fast track courts had 623 cases but disposed of only 107 cases totally in the entire year. Out of these, only 18 resulted in convictions and the conviction rate was only 16.8 percent. Thus, merely setting up fast track courts are not a solution unless these courts have a substantive legislation governing their working and laying down procedural norms to be followed. Presently, given the manner in which fast track courts are set up, these courts do not appear to have any specific fast track, special procedures or even sufficient resources to dispose of a large number of cases. One of the main reasons for acquittal in rape and sexual assault cases is the high incidence of complainants and witnesses turning hostile. Fast track courts that are being set up have no special mechanism to address this problem, which is particularly high in cases of sexual assault against women. There are no protection measures provided to complainants and victims that would prevent them from turning hostile. Another reason for high number of acquittals is that courts continue to rely on outdated forms of medical evidence such as the two-finger test and prior sexual history of the complainant — something the Supreme Court has repeatedly held to be discriminatory against women and not to be relied upon. If we want special fast track courts to provide speedy and substantive justice, it is critical that such courts have a legislative foundation setting out the purpose of these courts, their mode of functioning and the special procedures to be followed in rape and sexual assault cases. We need legislation outlining the time limit for the completion of the trial and the entire proceedings. There should be special speedy trial procedures in order to prevent the victim from withdrawing her complaint. Special sexual offence courts should make a wide range of protection and social assistance measures available including measures such as anonymity or judicial protection for victims and witnesses, and interim relief measures. The legislation should also mandate that these courts have specially trained judges and specialised prosecutors, a provision for specialised and free legal aid and representation, victim support services, special arrangements for victim safety at court including separate waiting rooms for victims, separate entrances and exits, remote witness facilities and appropriately-trained security staff, among other requirements. These serious crimes should push the government into action to rethink the criminal justice system and bring about substantive reform by enacting a substantive special fast track court legislation. Without a legislation providing all these ingredients, special fast track courts would function like any other regular criminal courts, defeating the very purpose for which they were established, providing neither fast nor substantive justice. The author is a senior advocate, Supreme Court of India and executive director, Centre for Law and Policy Research, Bengaluru