Case BriefsSupreme Court

Supreme Court: In a bid to make criminal justice system responsive in cases relating to sexual assaults, a 3-judge bench of SA Bobde, CJ and BR Gavai and Surya Kant, JJ has sought information with regard to status of affairs at ground level from various duty holders like investigation agencies, prosecution, medico-forensic agencies, rehabilitation, legal aid agencies and also Courts to get a holistic view.

Taking note of the fact that post Nirbhaya incident, which shocked the conscience of the nation, many amendments were introduced in criminal law redefining the ambit of offences, providing for effective and speedy investigation and trial, the Court noticed that still the desired results were not achieved and that as per the latest report of National Crime Records Bureau of Crime in India in the year 2017, total 32,559 cases of rape were registered in India. It said,

“The Nirbhaya case is not an isolated case where it has taken so long to reach finality. In fact, it is said that it has been one of the cases where agencies have acted swiftly taking into account the public outrage.”

Here are some of the most important information sought by the Court:

Registration of FIR by woman police officer

  • whether all the Police Stations have a woman police officer or woman officer to record the information of the victim?
  • whether provisions are available for recording of first information by a woman police officer or a woman officer at the residence of the victim or any other place of choice of such person in case the victim is temporarily or permanently mentally or physically disabled?

Failure of a public servant to record any information of sexual assault offences

  • whether any case has been registered under the Section 166A of IPC against any public servant?
  • whether there is any mechanism in place to complain about the non-recording of information by the officer giving cause to offence under Section 166A with any other institution/office, other than the concerned police station?

Medical treatment and examination of the victim

  • whether any advisory or guidelines have been issued by the authorities to all the hospitals and medical centres in this regard?
  • whether the medical experts have done away with the Per-Vaginum examination commonly referred to as ‘Two-finger test’ and whether any directions have been issued by the states in this regard?
  • whether medical experts have done away with the practice of giving opinion on the previous sexual experience of the victim or any directions have been issued by the states in this regard?
  • whether the Medical Opinion in the cases relating to rape and similar offences is being given in tune with definition of rape under Section 375 of IPC as it stands today?
  • whether the states have adopted the Guidelines & Protocols of The Ministry of Health and Family Welfare, Government of India or have they prepared their own Guidelines & Protocols?
  • whether requisite Medico-forensic kit are available with all the hospitals/health centres run by the Government or by local authorities?

“Medical treatment and examination of the victim is a very important aspect not only for the immediate relief to the victim but also provides intrinsic evidences for the trial.”

Completion of Investigation

  • whether police is completing the investigation and submitting the final report within a period of two months from the date of recording of information of the offence and if no, reasons for delay?

Trial before a woman judge

  • whether trial of cases relating to rape are being conducted by Courts presided over by a woman?
  • whether sufficient number of lady judges are available to preside over the Courts dealing with sexual offences and rape?
  • whether all courts holding trial of cases relating to offence of rape have requisite infrastructure and are conducting in camera trial?
  • whether the trial relating to cases of rape is being completed within a period of two months from the date of filing of charge-sheet, if not, the reasons for the delay?

Victim and witness protection

  • whether any policy of victim/witness protection in the cases relating to rape is framed and implemented?
  • whether police protection is being provided to the victim during investigation and trial of the offence?
  • whether the trial Courts have taken appropriate measures to ensure that victim woman is not confronted by the accused during the trial as mandated by Section 273 Cr.P.C.?

“The protection of witness during the investigation and trial is essential in cases of this sensitive nature. Many a times the accused live in proximity of the victim. The possibility of tampering with evidence and pressurizing the witness affects fair trial.”

Utilisation of Nirbhaya Fund

In the year 2013, a separate fund namely Nirbhaya Fund for projects of women safety to support initiatives by government and NGOs was created. The Court called for the status of utilization of the Nirbhaya Fund by Central or State Government(s).

Senior Advocate Siddharth Luthra will assist the Court as Amicus Curiae in the matter and the matter will next be taken up on 07.02.2020.

[In re: Assessment of the Criminal Justice System in response to Sexual Offences, 2019 SCC OnLine SC 1654, order dated 18.12.2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

The National Human Rights Commission, NHRC, India has expressed serious concern over the rising incidents of sexual assault and, taking suo motu cognizance of media reports in this regard today, issued notices to Centre, States and UTs calling for reports on SOP to deal with such cases and use of Nirbhaya Fund.

The Commission has observed that there is a dire need for all the stakeholders to come together to work jointly to get rid of this evil.

Issuing the notices, the Commission has further observed that the largest democracy of the world, which has adopted the longest written constitution and has a rich cultural heritage of gender equality, is today being criticized for having the most unsafe environment for women. The incidents of rapes, molestation, gender-based discrimination and other such atrocities against women have, unfortunately, become routine media headlines.

The Commission has said that these incidents indeed involve violations of the human rights of the victims. It is well awake to the seriousness of the issue. Being the apex body for the protection and promotion of human rights at the national level, it considers its intervention into the matter necessary to understand as to where the state agencies and other stakeholders are lacking on their part and what can immediately be done.

There have been constitutional and statutory provisions to ensure that the women are not subjected to any kind of discrimination and harassment but there is an alarming trend indicating that things are getting worse amounting to a violation of right to life, liberty, dignity and equality of women across the country.

Recently, a number of such cases have been reported by the media wherein, the women have been subjected to sexual abuse, utmost cruelty and inhuman treatment by the perpetrators showing grave disrespect towards law. There have been instances where the incidents have been reportedly, occurred due to gross negligence by the administration and the law enforcing public agencies.

In Telangana, a 26-year-old veterinarian was reportedly, brutally gang-raped and killed by four accused persons. The culprits not only outraged the dignity of the victim but also killed her and burnt her body. As per media reports, the brother of the victim had approached the Shamshabad police station at around 11.00 PM reporting that his sister is unreachable for the last two hours but his worries were shrugged off by the police personnel and after occurrence of the incident, the FIR was also registered after delay. Though the accused have been arrested but had the timely action been taken by the police, the gruesome incident could, perhaps, be stopped. In another incident, a 25-year-old law student was also reportedly gang-raped by a group of armed men, in Ranchi, Jharkhand.

In another media report, carried today on 02.12.2019, a 6-year-old girl was and strangled with her school belt in Tonk district of Rajasthan on 01.12.2019. The victim was reportedly missing since the previous day. The police have not made any arrest in this case. There have been number of such cases occurred across the country during the recent past. All these incidents have indicate that making stringent laws and funds for the victims alone cannot change the scenario unless the police officers are specially trained and their attitude towards women’s issues also changes.

There seems to be a lack of “Standard Operating Procedure” (SOP) to deal with such kind of incidents and panic situations. It is alleged that whenever anyone goes to a police station for help after disappearance a major or minor female member, the answer of the police officials generally remains that she might have gone with someone. This humiliating and stereotype mindset is needed to be changed. There is need to effectively address the core issue as this serious challenge has not only created an atmosphere of fear and uncertainty in our society but has also badly tarnishing the image of our country.

Through media reports, the Commission has also come to know that the amount made available under the “Nirbhaya Fund” has been reduced and also not being appropriately utilized by the state governments. A news report, carried today on 2.12.2019 reveaLS that since the year 2014, the UT of Chandigarh has been given a sum of rupees 7.46 crores under Nirbhaya Fund but the administration has spent only 2.60 crore out of it. Mere announcements of schemes, making of laws and formation of funds are not going to serve the purpose unless these are properly implemented.

The Commission, knowing that the subject is being looked into by various fora, has issued notices to the Chief Secretaries of all the State and UTs calling for a report within 6 weeks about the status of Nirbhaya Fund in their states including the details about availability of the fund and the money spent, during last 3 years.

The Commission has also issued notices to the Directors General of Police of all the states and UTs calling for their response within 6 weeks about the Standard Operating Procedure and the best practices adopted by them to deal with the matters relating to sexual abuse and atrocities against women including the details of the action taken against the police officers/officials found insensitive and guilty of negligence towards issues related to women.

The Commission has also considered it necessary to call for a detailed from the Secretary, Union Ministry of Women and Child Development, giving details about the schemes/guidelines initiated by the union government and status of their implementation, including Nirbhaya Fund, by the States/UTs. The response is expected within 6 weeks.