Fair and square: Unveiling Justice in Indian Courts

In the infamous Chhawla gang-rape-murder case, the culprits were let off because the Police and the prosecution could not gather evidence against the accused.

In a case of domestic violence a minor wife died as a result of injuries due to forced sex but the husband was absolved of the crime.

There was another case where the judge observed that grabbing of breast and opening of the string of a minor-girl’s ‘Pyjami’ does not amounts to “attempt to rape”.

In yet another judgement, it is opined that making the wife (deceased) ‘merely sleep’ on carpet would not amount to cruelty and preventing her to mix with neighbour could not be termed as harassment.

And all these rulings have emanated from the higher judiciary of the county and not from the lower courts.

The commonplace axiom in the judicial parlance is “Justice must not only be done, but it is seen also”. The blindfold on the statute of justice has, rightly been, removed by the last Chief Justice of India (CJI) Y V Chandrachud but her open eyes must see beyond the labyrinth of an anglicized and ‘high-priced’ criminal justice system that is not too easily understood or accessed by the average man in his daily grind. The corridors of the courts are daunting to the man in the street who is as uncomfortable there as he is in the police thanas’ where the investigation into a case commences before it reaches the courts.

Should it be argued that the law requires to be changed to suit the justice rather than the justice be changed to suit the law..?

Judicial rulings cannot be above criticism if they do not serve a real sense of justice or contribute to the strengthening of the public faith in the law of the land. Mere saying that the judgements are not based on ‘emotions’, ‘morals’ or ‘sentimentality” serves little purpose if no efforts are made to ensure that the police and the lower echelons of the judiciary set up cases with a solid foundation having incontrovertible evidence. 

It is well-known how political masters have derailed the seven-point police reforms ordered by the Supreme Court in 2006 and it is another story as to why the top court did not ensure that reforms were implemented in letter and spirit by the central and state governments.

The growing fault line in the process of the delivery of justice looks widening with the recent discovery of cash (estimated to be running into crores of rupees) in the official residence of Justice Yashwant Varma, a High Court judge in the National Capital, last month. The incident unsettled many of those who naively believed that the corruption in the country was restricted to the level of police ‘thanas’ only. An in-house inquiry constituted by the SC into the ‘scandal’ is currently on to establish the facts, as 52 pending cases before the said Judge are being freshly heard by the Delhi High Court.  The controversy has also inadvertently re-ignited the debate and, rightly so, the question of judicial accountability.

“The first requisite of civilization is that of justice”, the father of psychoanalysis, Sigmund Freud, famously said. Without justice, society may see a disruption of life and erode its faith in democracy itself. In India, the law as debated in the courts is too laborious and complicated and does not suit a country where a sizeable people (80 crore receiving free rations) are poor and the largest percentage of the world’s adult population is 37 per cent- illiterates. The proceedings of the court and process of investigation are not comprehensible to the man who by the quirk of circumstances gets in the complicated police-legal web. ‘Court or police’ are still a dreaded evil to be avoided at all costs by the one and all who want to live a strife-less life- goes the old traditional wisdom. The instant justice from royal kings to enormously tardy ‘Nyay’ in the Indian courts is taking a financial and mental toll on lakhs of litigants and their families.  And in many cases, justice has become a casualty of the process of justice itself.

The final ruling in many cases, including the Chhawla gang-rape-murder case, cries for definitive reforms in the criminal justice system at every step.

The Supreme Court rejected it on March 28. 2023, the review plea filed by the Delhi Police against the acquittal of all accused in the gang rape and murder of a 19-year-old woman in Delhi’s Chhawla area in  February 2012. The 19-year-old girl from Uttarakhand who worked in the cyber city of Gurugram was abducted from Tajpur, Delhi, with her mutilated and decomposing body being found three days after her murder at Rewari in Haryana. The police investigation revealed that the woman was brutally raped and attacked with car tools, glass bottles, metal objects, and other weapons. The probe said one of the convicts allegedly took revenge after the woman turned down a proposal from one of the accused. The rape-murder of a Uttarakhand girl in February preceded the ‘Nirbhaya’ rape-murder of case Delhi in December 2012, where a 23-year-old girl was raped and killed by a bus driver with five accomplishes. 

In the Nirbhaya case that attracted national headlines and the attention of national political parties, all but one minor was convicted and hanged but the  Chawla case had remained unsung, seldom receiving any media or political traction even though it was, perhaps, as macabre as the former, if not more. She was done to death after rape and the accused was set free even after a review petition appeal in the SC. The hapless had remained unsung with nor requiem.

A bench of Chief Justice of India DY Chandrachud, Justice S R Bhat and Justice Bela Trivedi dismissed the review petitions saying lack of clinching evidence and glaring lapses in the trial leaves the court no other alternative but to let them go free. Three men, Ravi Kumar, Rahul and Vinod were convicted under various charges dealing with kidnapping, rape and murder.

Before the SC’s rejection, a Delhi court in February 2014 convicted three for raping and killing the girl and awarded them the death penalty and the high court in August 2014  upheld the same describing the crime as ‘diabolical’ and saying they were ‘predators’ moving on the streets and “were looking for prey”.

“It may be true that if the accused involved in the heinous crime go unpunished or are acquitted, a kind of agony and frustration may be caused to the society in general and to the family of the victim in particular, however, the law does not permit the courts to punish the accused based on moral conviction or on suspicion alone… Every case has to be decided by the courts strictly on merits and by law without being influenced by any kind of outside moral pressures,” a three-judge Bench of Chief Justice Chief Justice U.U. Lalit, S. Ravindra Bhat and Bela M. Trivedi observed on November 7, 2022,  when the case first reached the apex court.

The Delhi Police had, thereafter, filed a review plea after one of the convicts, Vinod, was arrested in a robbery-murder of an auto-driver in January 2023 again. During the hearing, the Supreme Court bench was informed by Solicitor General Tushar Mehta, appearing for the Delhi police, that one of the accused acquitted in the case had recently committed a heinous crime of murder and was therefore a hardened criminal.

Justice Lalit said the chain of circumstantial evidence and the “authorship” of the crime could not established by the prosecution. The Delhi high court, like the trial court, however, believed that the same ‘circumstantial evidence’ was “proved” and further noted DNA of a strand of hair recovered from the girl’s body dead body matched DNA of Ravi and DNA generated from semen spots found from the Indica car matching DNA of another accused Vinod.

The legal semantics may go on endlessly but it is evident that justice had explicitly eluded the young girl as her parents could not afford ‘high-priced’ legal eagles with the right wherewithal and connections to retrieve ‘evidence’ from the Augean stable of police nexus and ill practices. Yes, judgements are not delivered based on moral arguments or ‘sentimentalities’ but it is not a judgement based on ‘merits’ as the SC has itself castigated the police probe and the manner of cognizance of the fact files or evidence taken by the lower court.

It is not in this case alone but in the umpteenth other cases too where the acquittal was given by the apex court after strongly criticizing the police investigation and the trial courts for not taking proper cognizance of the facts on the ground and not following the well-laid-out procedures. The Supreme Court, however, does not order an inquiry or direct corrective measures against the investigation officers in the grossly botched-up cases (as it itself sees them).

It is the police which is required to probe a crime honestly and diligently to be able to present a water-tight case before the Lordship. If the highest court of the land finds frequent violations of a chain of procedures by the police, the trial or high court should be the first to take them to task so that the fair evidence reaches it in the next case.  But it does not happen.

This brings us to the question of transparency in the police investigation. Unless there is public pressure or media outcry (which is very rare, like in the Delhi Nirbhaya rape-murder case of 2012), the police in the country are usually influenced by corrupt practices.  Handmaiden to the political powers, the rich or the influential, the police are still functioning in an archaic-colonial manner without autonomy or independence.

In the 2024 RG medical college rape and murder case too, the Apex court (with CJI Chandrachud in the seat) did not ask the CBI to examine why the hospital authorities demolished the wall of the hospital the same night and allowed a violent mob to barge in and ransack the site of the rape and destroy the evidence in the college?.

It is well-known how political masters have derailed the seven-point police reforms ordered by the Supreme Court in 2006, and it is another story as to why the top court did not see to it that reforms were implemented in letter and spirit by the central and state governments.

The miscarriage of justice is not always due to the ‘lack of evidence’ but on account of the judgments themselves. In February, this year, Chattisgarh High Court in Raipur acquitted a 40-year-old man of marital rape charges, citing legal immunity for husbands.  The wife in question, a minor, had died of severe injuries in her privates but it was not judged as a murder as Indian law does not recognize marital rape.

Despite the loud political noise around the ‘Nari Shakti’, India is one of the few countries that has decriminalized marital rape.  The law is based on the premise that after marriage a woman explicitly agrees to sexual intercourse and that her consent is implicit. The central government has defended the provision in the apex court, arguing that removing the exception could destroy the institution of marriage and urged the Supreme Court to respect the legislature’s wisdom in retaining the provision. The Bharatiya Nyaya Sanhita – the new law that replaced the IPC with effect from July 1, 2024 – contains a similar immunity provision for husbands.

Marital rape refers to non-consensual sexual intercourse by a husband with his wife, which remains exempt from criminal prosecution under Indian law. Exception 2 to Section 375 IPC and Section 63 of BNS grant immunity to husbands for non-consensual sex with their wives above 18 years.

Over 100 countries, including the U.K., U.S., France, and Nepal, have criminalized marital rape, considering it a violation of women’s rights.

Citing the law, the Chhattisgarh High Court ruled that the marital rape exemption applies to Section 377 IPC, removing the legal recourse for married women against non-consensual acts. The judge did not take into account the dying declaration of the victim, her minor status and deep injuries. The judge did not see it as a murder or homicide.

The alleged offence in this case was committed in December 2017, two months after the Supreme Court’s landmark verdict in October 2017 that a wife’s consent is rendered immaterial, even as a series of recent Supreme Court rulings, including the 2017 right to privacy verdict, have emphasized the importance of sexual autonomy for individuals.

The case involved the husband of a deceased minor victim who died on December 11, 2017. The prosecution argued that the man engaged in forceful and unnatural sexual intercourse with his wife, inserting his hand into her anus, which allegedly led to severe pain and ultimately contributed to her death. The victim’s dying declaration, recorded by an executive magistrate, stated that she had fallen ill due to the forceful sexual intercourse by her husband.

In May 2019, the trial court convicted the appellant of rape, unnatural offences, and culpable homicide not amounting to murder, sentencing him to 10 years of rigorous imprisonment.

Despite the prosecution’s contention regarding the severity of the offence, Justice Vyas chose to overturn the order.

“In the present case, the appellant is a ‘husband’ and the victim is a ‘woman’ and here she is a ‘wife’ and parts of the body which are used for carnal intercourse are also common, therefore, the offence between husband and wife cannot be made out under Section 375 of IPC,” the high court judge wrote in the order.

About the homicide charges, Justice Vyas maintained that the girl’s dying declaration could not be relied upon because it lacked corroboration and there were doubts about its veracity too.

In another bizarre ruling that speaks volumes for the judicial ‘discrimination’, the Allahabad high court in March observed that grabbing breasts and breaking the string of the ‘pyjama’ of a victim was not enough to charge an attempt to rape or rape. The judge, in his wisdom, seemed to be suggesting that ‘this is not hard evidence’ to establish and the victim should wait for ‘further evidence’ so that the attempt to rape could be confirmed. It was widely reported that a bench of Justice Ram Manohar Narayan Mishra stated that there was a gap between preparation for a crime and an actual attempt to rape.

After the Allahabad high court’s controversial observation on what constitutes a rape charge, Union minister Annapurna Devi and several others have slammed the court and called for judicial reforms which is, at best, a political posturing of ‘do nothing’. The Union Minister should, instead, have written a letter to the CJI for the appropriate action against the judge.

The list of regressive judgements rooted heavily in the personal belief system rather than the law itself is endless.  

Kolkata High Court judge Chittranjan Dash last year has set his own patronizing ‘moral standards’    with his observations in a sexual abuse case of a minor when he said “An adolescent to girls must control their sexual urges instead of giving in two minutes of pleasure”.  This has led the SC to say that judges are supposed to decide a case based on the law and facts instead of preaching to the accused. The SC described the observations as “wrong and problematic”.

The credibility and the independence of the judiciary also seem to have suffered in the wake of Justice Shekhar Kumar Yadav, a sitting judge of Allahabad court, announcing in a VHP meet last, in December, that “this is Hindustan, country will run as per majority”. He said this is the law… The law works according to the majority”, he said at Prayagraj. If all judges were to publicly declare their ‘judgments’ then judicial independence would – without governmental intervention- go for a six. The apex court has, yet, not take any action against the judge.

The demand for accountability of the judiciary has been in the air for a long but no system is in place to act on it. Senior Supreme Court lawyer Prashant Bhushan had levelled corruption charges against several former CJIs but nothing much came out of it. He says CJIs do not act on the complaints against judges and the impeachment process is too tedious and political, and that’s the reason no judge till now, has been impeached.  In-house committee probes (like that in Justice Varma’s case) also do not yield any major outcomes and at best the CJI may ask a guilty judge to quit his post on his own.

Bhushan suggests “a robust five-member judicial complaints commission of former judges, independent of the incumbent judiciary or the government, which may also have public members”. The commission may receive complaints from the public against the judges holding trial and suggest action, without having to go through the impeachment process.

The serious question is who will bell the cat in a situation which requires major surgery in the judicial and police system? It is most important that reforms establish and maintain the autonomy and independence of the two key institutions away from the control of the government (politicians).

“Yatto Dharmastato jayah “- where there is righteousness, there is victory – the motto of the Supreme Court applies to all walks of life, let alone the judiciary or the police. Will SC take the first step to establish ‘dharma’ or wait endlessly to allow the powers they are to step in and tilt the balance of the judiciary to their side?