In a chilling reminder of the recent Unnao case, we saw how on December 14, 2019, an 18-year-old girl was allegedly raped and set ablaze at a village in Fatehpur district in Uttar Pradesh! She is battling for life at a Kanpur hospital with 90% burns. What was her fault?
Her fault was that she was born in India where Supreme Court just watches as incidents of more and more rape, gang rapes and setting ablaze more and more women continues and never sets up any panel to probe why only one poor Dhananjoy Chatterjee was hanged 15 years ago in 2004 on circumstantial evidence alone and why no similar action taken against lakhs of rapists? Why have they been spared from gallows? Supreme Court rightly and quickly sets up panel to probe Hyderabad encounter in which 4 persons were gunned down who were accused of raping and lynching the 27-year-old girl which led to national uproar! But why no panel to probe as to why has this happened that from 1982 to 2019 only 3 rapists hanged? How can this be overlooked?
Needless to say, the 22-year-old accused is her distant relative, who allegedly raped and set the girl ablaze when she was alone at her house in a village under the Hussainganj police station. This was disclosed by circle officer Kapil Dev Mishra. On hearing her cries, neighbours rushed her to a local community health centre from where she was referred to the Kanpur hospital.
What a shame that we saw earlier how a rape survivor from Unnao was set ablaze by five people, including two rape accused! The girl later died during treatment in a Delhi hospital. On December 14, a 16-year-old girl was allegedly abducted and raped by two men. A 16-year-old girl had committed suicide in Saharanpur’s Sadar Bazar area on December 12 as she had been molested and her family was not willing to get an FIR registered as the accused was a powerful landlord! How many more such horrifying incidents should I narrate to underscore that time has now come to strengthen the rape laws.
It must be noted that the Chief Justice of India – Sharad Arvind Bobde in an exclusive interview with ‘The Times Of India’ said that rising crime against women is essentially a social phenomenon, fuelled by several factors like poverty, lack of education, and dearth of healthy entertainment. He said that, “Cinema, TV and possibly the use of cellphones are fuelling these crimes. A teenager with a mobile phone can be instigated with wrong content to indulge in criminal activities.” On how to check this menace, the CJI said there are many solutions at many levels, but one has to understand the steps involved. First of all when a crime is committed, the police or judiciary is not present. It’s not proper to hold these two institutions directly responsible for it. You could say lack of investigation leads to a poor evidence and subsequently the acquittal of the accused.” He also conceded that, “It may, at some level, be responsible for emboldening the crime. Since the deterrent theory is a valid theory, it’s an important aspect in prevention of crime against women.”
Having said this, we also cannot ignore what Swaminathan S Anklesaria Aiyar wrote in his enlightening editorial titled “Encounters need to end but the real culprit is a moribund judicial system” dated December 15, 2019 in which he rightly wrote that, “The killing of four rape suspects in an “encounter” by the Hyderabad police evoked rapturous joy in many TV channels and the general public. Meanwhile, many judges and columnists expressed dismay at police vigilantism, saying it violated human rights and the rule of law. Sorry, but the real culprit is a moribund judicial system that simply does not deliver what can reasonably be called justice. Judges and columnists can give unending homilies on the rule of law. But when so many flout the law with impunity because of a moribund justice system, following legal procedure ceases to be what can reasonably be called rule of law. Rather, it is the rule of procedures and injustice. Critics are reluctant to castigate the courts for fear of being jailed for contempt of court. But let’s call a spade a spade.”
No doubt, those in the helm of affairs of judiciary must seriously introspect on what Swaminathan S Anklesaria Aiyar has so wisely said! Why can’t thousands and thousands or lakhs and lakhs of rapists be hanged promptly? Why Supreme Court feels that hanging one poor Dhananjoy Chatterjee in 15 years is more than required? How can this be condoned? Why is judiciary never ready to introspect on why so many rapists cum murderers are roaming free and yet again indulging in crime?
Why have they not been similarly punished even when there was direct evidence against many of them? What message does this sends to society? Only and only that anyone can get away easily in India after committing the most heinous crime by exploiting the glaring loopholes in law in their favour with full help from a battery of “eminent and experienced” lawyers hired in this regard! There are too many “discretion bombs” which must be defused in our rape laws and prompt death penalty must be awarded in all cases of rape without any “exception” or “may” under any circumstances! Only then can one hope that it will serve as an effective deterrent but the moot question is: Will Supreme Court allow this to happen? Let’s see!
Furthermore, Swaminathan S Anklesaria Aiyar very rightly further asks in the same editorial that, “The Supreme Court has appointed an inquiry into the Hyderabad encounters. Why not order an inquiry into the reasons for the pathetic reputation of the judicial system, and the consequent public support for encounters? You can say such public attitudes are outrageous. Yet the public is so disgusted with the outrageous formal system that it happily considers outrageous alternatives. India needs the rule of law. It needs to end vigilantes and police encounters. But that first requires massive police-judicial reform. The meandering, meaningless procedures of a moribund police-judicial system cannot be called the rule of law. The public sees this. Jaya Bachchan sees this. Bollywood sees this. The courts must see this too. More than additional judges, the judicial system needs to totally overhaul its own procedures, recognising that its utter failure to deliver speedy justice is an important reason for the popularity of encounters. Police reforms to enhance forensic skills and eliminate political interference are equally important. Speed cannot be imposed on the courts. The reform will have to come from within.”
The moot question is: Why has judiciary failed to act decisively to massively reinvigorate the moribund judicial system that has hardly changed in last 72 years? Why are there so many judicial vacancies of Judges in India? Why Allahabad High Court topped the list with 60 of 160 posts vacant? Why not a single seat in Parliament or State Assembly is ever left vacant?
Why Allahabad High Court despite topping in maximum pending cases and Uttar Pradesh being lambasted as “rape and crime capital of India” by none other than former UN Secretary General Ban ki moon has just one high court bench and that too very close to Allahabad about 200 km away at Lucknow for just 12 districts? Why no bench for West UP for 26 districts with more than 9 crore population at Meerut or in any other district? Why no bench for Bundelkhand region at Jhansi? Why no bench for Gorakhpur? Why another lawless state Bihar from where Union Law Minister Ravi Shankar Prasad hails has not even a single high court bench?
Why a peaceful state like Maharashtra which has topped in delivering justice in States list has 4 benches – Nagpur, Aurangabad, Panaji and the one created recently in 2018 at Kolhapur for just 6 districts? Why another peaceful state Karnataka with just 6 crore population has 3 high court benches at Hubli, Dharwad and Gulbarga? Why West UP with more than 9 crore population and owing for more than 57% of pending cases of UP as was acknowledged also by Justice Jaswant Singh Commission has not even a single high court bench?
Why the landmark recommendations to create more benches by Justice Jaswant Singh Commission were partially implemented by creating a bench at Aurangabad in Maharashtra in 1985, at Madurai in Tamil Nadu and in Jalpaiguri in West Bengal but not a single bench was created in UP even though it had recommended 3 benches for it? Why this third rated discrimination with UP which accounts for maximum pending cases and maximum population and what not?
Why the landmark recommendations of 230th Law Commission of India to create more benches in big states like UP, Bihar and Rajasthan among others and why only few southern states like Karnataka and Maharashtra have gained? Why Supreme Court never tries to correct this serious malady in our judicial system due to which poor women have to travel so far to Allahabad to secure justice? Why even former CJI Ranjan Gogoi while in office had acknowledged that the petitioner-cum-lawyer KL Chitra’s petition for a high court bench in West UP for more than 9 crore people who have to travel more than 700 km to Allahabad for justice has merit but said simultaneously that it was for Centre to decide? Why Centre never acts on this and creates more benches in UP, Bihar and Rajasthan among other states?
How can we dare to ignore what President Ram Nath Kovind said on December 7 during the inauguration of a new building of the Rajasthan High Court in Jodhpur that, “I know the legal process has become expensive on account of various reasons and has gone out of the reach of the common man. It has become difficult for them to reach especially the high courts and the Supreme Court?” He further rightly asked that, “Today, can any poor or deprived person come here (to higher judiciary) with his complaint? This question is the most important because in the Preamble to the Constitution, we all have accepted the responsibility of providing justice to all.”
Why is Centre not listening to President? Why is even Supreme Court not looking into what has been pointed out by President and directly concerns the judiciary? Why are more high court benches not being created in UP, Bihar, Rajasthan, Odisha and other big states? Allahabad High Court is biggest court in Asia but has just one bench! There are more than 3 lakh members of UP Bar Council and whose Chairman Hari Shankar Singh has openly rooted for a bench in West UP still Centre keeps quiet! BJP MP from Meerut Rajender Aggarwal repeatedly raises this in Parliament and just recently met PM Narendra Modi as the MPs from West UP from other districts have been doing since 2014 but still no step being taken in this regard! It is women, poor and downtrodden people who will gain maximum yet Centre is astonishingly following Jawaharlal Nehru who wanted a bench only at Lucknow which he created in 1948!
Why child rape cases not being given top priority? Why are we ignoring the grim reminder that children continue to face the brunt of sexual depravity with more than 96% of the 1,66,882 lakh pending rape trial being the ones that are registered under the Protection of Children Against Sexual Offences (Pocso) Act? Why here also UP tops the list with 36,008 pending cases yet fast track courts (FTCs) are not being set up even though now UP government has of late proposed to set up 218 FTCs? But how soon will it happen is a big question?
According to the latest statistics of National Crime Record Bureau, the crime rate against women from 20111 to 2015 has increased from 41.7% to 53.9%. What is a matter of national disgrace is that in India from 2001 to 2017 there have been 4 lakh, 15 thousand and 786 rape cases on record yet how many rapists have been hanged from 2001 or rather from 1983 to 2019? Only one and one poor Dhananjoy Chatterjee alone and that too on circumstantial evidence alone and whose petition was drafted by none other than “prisoners of Tihar jail” as was pointed out by eminent and senior Supreme Court advocate Colin Gonsalves!
Should we be proud of it? Should judiciary be proud of it? Should Supreme Court be proud of it? Why Supreme Court never orders an inquiry panel to probe this unlike in encounter cases where it acts most promptly? Why legal giants like Soli J Sorabjee, Harish Salve, Kapil Sibal, Mukul Rohatgi, Indira Jaising, Abhishek Manu Singhvi among others are not appointed to enquire into it?
It is high time and now judiciary must step up and be courageous enough to first set its own house in order and ensure that all the four lakh, 15 thousand and 786 rapists are hanged promptly! If this is not done, people’s faith in judicial system will explode and for which the Supreme Court cannot blame anyone but itself for failing to ensure that strictest punishment is awarded to all rapists uniformly and not imposed just on one poor Dhananjoy Chatterjee alone whose old parents and wife kept pleading that he was sole bread earner but to no avail! This strictness must be demonstrated in other cases also which is sadly missing as can be seen by the statistics itself! This “most brutal” discrimination by none other than the Supreme Court in awarding death penalty must end now and anyone who indulges in rape must be hanged and no one should be spared under any circumstances! Judiciary must listen to Vice President M Venkaiah Naidu who said that it’s the duty of judiciary to ensure that justice is delivered without constant delays though there cannot be instant justice! He also rightly urged that the crime of rape should be curbed without any discrimination or giving it a political hue! Law makers must abolish mercy petition for rapists as even President wants that child rapists should enjoy no such facility!
Not just this, police must be ordered to inquire promptly as soon as a women complaints and not fight over jurisdiction! For this our laws must be amended! Those policemen who refuse to cooperate must be not just suspended for a brief time but must be dismissed and jailed for at least 20 years! Centre must listen to Delhi Commission for Women (DCW) Chief Swati Maliwal who is demanding mandatory death penalty for rapists and that too within six months of their execution and fainted after being on indefinite strike for more than 13 days! She rightly demands that Disha Bill which mandates disposal of cases of atrocities against women within 21 days and handing out death penalty is implemented in entire country! Centre must act promptly in this regard now! It brooks no more delay anymore!
Sanjeev Sirohi