“Expeditiously ‘Fairing’ or Bypassing the Rape Penology through Disha Act”

    The Disha Act introduced in Andhra Pradesh assembly soon after the Hyderabad encounter case, was touted by the CM Y.S. Jagan Mohan Reddy in an emotional tone as the ultimate deterrent for rapists. The Act provides for an expeditious disposal of rape with even more stricter punishments. The Act with various amendments in the Indian Penal Code, 1860; one in the Criminal Procedure Code, 1973 and Indian Evidence Act, 1872 is an attempt by the legislators to provide a quick and effective solution for the problem of rapes.

    Background

    The Act was passed after a rape case took place in the city of Hyderabad. The victim, a 26-year old veterinary doctor had parked her scooter near a toll plaza, where she was looked by a group of four. The accused four deflated her tire, and proselytized her into the bushes at the impression of giving her lift. Thereby, the victim was raped and the dead corpse of the victim was found by the Cyberabad Metropolitan Police on 28th November, 2019.

    However, all the four accused were shot dead by the police in a regular exercise of shifting from one prison to another on 6th December, 2019 under a bridge on Bangalore-Hyderabad National Highway in NH-44. The police had its own justification for the encounter but to the amazement was the reaction of the people equating the encounter with justice for the victim. Even more surprising was the reaction applauding the bravery and significantly glorifying of the Hyderabad police by our law-makers.

    It was after sixteen days of the commission of the rape, the Andhra CM introduced the Disha Act in the assembly. ‘Disha’ became the revolutionary title for a newer direction of criminal penology especially in context to rape.

    Conformity With Existing Law

    Punishment

    As per section 376 of the original Indian Penal Code [prior to the amendments in this Act], in a rape case the punishment is a fixed jail term which may extend to life imprisonment or the death sentence. On the other hand, Disha Act prescribes life imprisonment along with death penalty where there is adequate conclusive evidence.

    The crimes in the form of molestation (sexual assault on children under the POCSO Act, 2012 [1]) prescribes an imprisonment from minimum of three years to maximum of seven years. However, the Disha Act introduced sections 354F and 354G in IPC which increased the punishment for the same offence to life imprisonment.

    Expediency

    The Criminal Law Amendment Act, 2013 popularly known as Nirbhaya Act, 2013 proved to be a watershed event in the criminal justice system for expedient disposal of cases. The current judgment period is set at 4 months providing equal periods of two months for investigation and trial.

    The Disha Act, 2019 proposes completion of investigation within seven working days and trial within fourteen working days with availability of adequate conclusive evidence.

    Appeal Period

    Currently, according to sections 374 and 377 of the Code of Criminal Procedure, 1973, the period for disposal of appeal cases related to rape cases is six months.

    On the other hand, the Disha Act, 2019 prescribes the period for disposal of appeal cases is set at three months.

    Punishment for Harassment through Social Media

    There is no such etymology in the current laws regarding Harassment of women on Social Media. The Disha Act introduced section 354E titled ‘Harassment of Women’ in the Indian Penal Code, 1860 which prescribes an imprisonment for a term which may extend to two years on first conviction and four years for second and repeat offenders.

    https://legalreadings.com/fundamental-right-to-freedom-of-religion-a-socio-legal-study/

    Flaws in Reasoning

    Stringency

    The objective of stringency in law is to instill fear among the offenders and so as to deter the offenders from commissioning such crimes. The National Crime Records Bureau data reveals that the rate of crimes against women increased from 58.8 in 2018 to 62.4 in 2019[2] with the introduction of some sweeping stringent laws for all assortment of offences against women. This is even after the Criminal Law Amendment Acts of 2013 and 2018 which fortified the stringency of rape penology. In fact, the conviction rate deteriorated or remained unaffected for every NCRB report published after 2013.

    The downside of the stricter penal laws to deter the menace of rape is when the capital punishment is the upper gamut of punishment and which is even present in this law. This is due to the fact that in such cases the court remains reluctant until conclusive and substantial proof beyond reasonable doubt is established. In fact, in a research conducted by the Indian Law Review Journal, researchers examined 1,635 rape judgments from trial courts of Delhi delivered during 2013 and 2018. Of these, 726 cases were adjudicated under the old law, of which 16.11% resulted in conviction. Under the amended law 909 cases were adjudicated but only 5.72% of them reached due conviction[3].

    The Indian rape penology worse in its abysmally low conviction rate which is as low as 27.8% which would mean out of every 100 accused only 28 get convicted[4]. The strongest factor out of all is the familial and societal pressure as the NCRB data puts it that 94 out of 100 cases had the accused, a known figure of the victim. This further lowers reporting and charge-sheeting as the punishment is so severe that the victim is pressured by the family/society to resort to not reporting.

    The reporting and charge-sheeting forms the primary areas of improvement and then comes the conviction rate which further coupled with stringency will act as what is truly envisioned under the ‘Deterrent Theory’ of rape Penology.

    Expediency

    The magical figures of 7 days for investigation and 14 days for investigation are highly unlikely to yield any transformative start in the criminal jurisprudence of rape along with 90 days for appeal discharge. It is due to the fact that POCSO and CrPC anyway propose time limits which are hardly fulfilled. It took long even for a high profile case of Nirbhaya to be decided by the trial court. Even if the judgments with ‘adequate conclusive evidence’ are passed by the trial courts, this would anyway give the accused right to approach the Supreme Court under Article 136 calling for gross violation of law. This would anyway lengthen the process and hence, defeat the process of expediency.

    The problem of delayed disposal of cases by our courts can not be solved by floating some legislatively binding numbers but by strengthening the structural, institutional and man power set-up. Nearly 2.8 Crores cases are pending only in the district and subordinate courts and there are only 16,874 judges to try all of them.[5] The disposal of appeal by 90 days is even more difficult as the arrears are even higher in High Courts with greater pendency rate.

    Omission

    The following omission needs clarity and elaboration in the legislation:

    • The Bill introduced ‘harassment of woman’ section to the IPC which may have grave implications as it is loosely worded and the legislators drafted its definition in the words such as the acts of even ‘distress’, ‘alarm’, ‘shame’ or ‘embarrassment’ to a woman as grounds for harassment to a woman. The terms used are not just vague but also expansive and elaborate in their scope. Such omission in a section for punishment as vast as two years for the first time may also be exploited to infringe the fundamental rights of other individuals in the society.
    • The quick fix figures floated by the Bill is conditioned on the presence of ‘adequate conclusive evidence’ as also for the death penalty. But the devil in the details is that what is ‘adequate conclusive evidence’ has been clearly or even unclearly left undefined under the Act. The omission is not even found for definition in the General Clauses Act of 1897. By far, within seven months of the enactment, 338 individuals have been convicted under the Act along with three death penalties but neither trial courts nor the Andhra High Court has provided a clear pathway or clarified the etymology of the same.

    Conclusion

    ‘Justice delayed is justice denied’ through what reasoning but is a talking jab for even the layman but it is well contended that the fundamental tenets of the jurisprudence is that, ‘1000 culprits can escape, but, even one innocent person should not be punished’. The Disha Act with restrictive interpretation of the problems in the rape penology propounds such a time frame which may be expedient (though conditioned on adequate conclusive evidence) but is in clear violation of principles such as adequate opportunity, cross-examination of prosecution witness and even impartiality as the time period of such lesser time-frame is a severe infringement of fundamental right of fair trial. The expediency is even redundant as the original laws with 4 months for both trial and investigation has almost no case decided under that period.

    The Indian Democracy, unlike the Western Democracy (who are champions of one right or the other), is the champion of balancing fundamental rights since every right has restrictions too. The clear-cut indication for the legislators with such an analysis is that the legislative intent and political will of the legislators must not be held in captivity under the fear of appeasing public sentiments. Such enactments are neither the best nor even good attempts by the legislators, simply put, it is the easiest way out.

    REFERENCES 

    [1] The Prevention of Children from Sexual Offences Act, 2012, s. 8.

    [2] National Crimes Record Bureau, State of Crimes in India, 2017 (September ,2019).

    [3]Kanu Sarda , Tougher anti-rape law led to lower conviction, says study,  New Indian Express, December 11, 2020.

    [4] National Crimes Record Bureau, State of Crimes in India, 2016 (December, 2017).

    [5] National Crimes Record Bureau, State of Crimes in India, 2017 (September ,2019).


    BY ABHYUDAY PRATAP  & MANSI PANDEY | DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

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