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Crimes against women and children are treated casually by our institutions. What else explains such low conviction rates?
A recent report (PDF) about the state of law & order in Mumbai by non-profit organisation, Praja, highlights what has been suspected all along: crimes against women and children are treated casually.
This explains the fact that more than 90% of the cases are pending trials in courts. The conviction rate was less than 40%.
There are many reasons for this dismal state of affairs. One major reason is the shortage of manpower or rather, human power. The highest shortage was found in forensic laboratories (40%) followed by public prosecutors (28%). Next is the police, where the shortage of personnel was revealed to be 18%, and in sessions courts, where it was 14%.
Even the Supreme Court and High Courts have vacancies and it takes years to fill them up. All these affect the delivery of justice. When at the grassroots level, there are vacancies at sessions courts and amongst the police, the public prosecutors, and in the forensic laboratories, women and children continue to suffer as their lives are marred by violence.
Even in cases that needed to be tried under the Prevention of Children from Sexual Offences ( POCSO) Act, just about half of the cases have been tried in special courts as mandated under the POCSO act. Only 44 out of a total of the 220 cases that have been tried under POCSO reached the stage of judgement in 2019. In 2020, because of COVID, the situation has definitely worsened. All this will add to a huge backlog of cases in the future.
As per the National Judicial Data Grid, the backlog of cases is a whopping 37.7 million! This works out to 3.7 million cases pending for 10 years. Out of these, 2.8 million cases before the district courts and 0.92 million cases before the High Courts have remained pending. Nearly 6,60,000 cases have remained pending for more than two decades and another 1,31,000 have remained unresolved for more than 30 years. All this adds to a huge economic cost. Moreover, delay in justice is as good as denial of justice.
The most common response people ask for, i.e. capital punishment or the death penalty, is an incorrect response to check crimes against women and children. Capital punishment is not a deterrent. It is an expensive process; moreover, nearly 75 % of the accused on the death row are from the marginalised sections of society. Neither has death penalty acted as a deterrent. If death penalty is the answer, then murders should have stopped; and yet, murders continue. Capital punishment is like revenge and therefore has no place in a civil society. Cases in which capital punishment is awarded take years to end, making it a long and winding process. It is traumatic for the victim, their families and even for the accused and their families. Moreover, where is the scope to correct if a person is given capital punishment and later it is discovered that the accused who suffered the death penalty had not committed the alleged crime?
Many states have brought in the death penalty in case of sexual assaults of children below 12 years under POCSO. The effect is that there are hardly any convictions. It’s important to remember that in most cases of sexual abuse of children, the accused (more than 90%) are either family members or friends. So the victim or survivor is pressurised to remain silent and not depose against the accused.
The pandemic has led to an exponential increase in cases of domestic violence. In such cases, it is likely that the women who are the victims and survivors will choose to remain silent. They would rather not speak up against their family members. Death penalty will only make this complaining against family members nearly impossible.
Obviously, by decisions of the courts; and that can happen only when the courts function at full capacity. That means all vacancies need to be filled up. This should include vacancies at the levels of judiciary, at the level of police, at the level of public prosecutors and also at the level of forensic laboratories. It’s the entire gamut of the judicial system that needs to be covered.
Another step that needs to be taken is to fill up all the vacancies that exist across all the courts, from the lowest till the highest levels. This will improve the judge to population ratio and help in bringing down the backlog of cases. The Advocate General of India, Mr Venugopal recently told the Supreme Court that there is a lot of gender bias in the judiciary. He opined that as many as 50% of judges need to be women.
One suggestion is to temporarily increase the number of lower courts, by appointing willing law graduates as judges. Such temporary judges can be offered only the salary, sans other benefits. As soon as the backlog of cases ends, these temporary judges will be retired without any benefits. Of course, the most suitable of them can be absorbed into the judicial services after the requisite examinations, interviews and other relevant criteria. These temporary judges can be women candidates. A majority of the courts which have to try POCSO cases too can be headed by women, since women have a better understanding of children and their trauma. The temporary judges can try a majority of the cases dealing with women and children as women are better equipped to deal with such cases.
The Supreme Court guidelines as laid down in the Vishakha case (which dealt with sexual harassment at work) and eventually, the Prevention of Sexual Harassment against Women Act state that the internal complaints committee in any organisation must be headed by a woman. At least half of the members of this committee must be women. It follows therefore that women must have an equally importantly role to play in crimes affecting women and children.
Similarly, other temporary posts can be created across the entire gamut of the criminal justice system whereby police personnel, the public prosecutors, the forensic team, can be women in the majority. These temporary posts can be ended once the pendency of cases gets back to manageable proportions. Here too, the most suitable ones can be absorbed into the permanent services through examinations, interviews and other relevant criteria. The Constitution of India allows reservation in favour of women & hence these judiciary, police, public prosecution and forensic science jobs in favour of women are as per the Fundamental Rights under Article 15 (3).
Yet another solution is to allow the courts and other judicial and quasi-judicial authorities to work in shifts. In Maharashtra, the lower courts will be working in two shifts. And this is indeed the urgent need of the day. In fact, not just the lower courts, even the High Courts and Supreme Court need to work in shifts to clear the huge backlog of cases. If this happens, the backlog will end soon & then all courts can resume single shift working.
As more women are employed, the GDP of our country will rise by 27%. Hence, employing women as judges, police personnel, public prosecutors and forensic scientists will be a win-win situation for all! It will make the society safer for women and children as crimes are dealt with promptly and justice is delivered. The economy will improve and the backlog of cases will reduce.
This is in accordance with India’s position on the international stage. India is a signatory to the International Covenant on Civil & Political rights and Convention for Elimination of Discrimination against Women.
This pandemic has given us a chance to implement all these suggestions, which can only lead us forward in the direction of a better tomorrow!
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I am a law graduate from Government Law College,Mumbai.I am a Fellow in
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