Gang-rape murder highlights flawed justice | Asia| An in-depth look at news from across the continent | DW | 08.01.2013
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Gang-rape murder highlights flawed justice

As the five suspects in the gang rape and murder of a 23-year-old student appear in court, the Indian government is promising swift justice. The case has brought many deficiencies in the justice system to light.

The statistics have long provided sensational reading. In 2006, a report came to the conclusion that it would take 466 years for all cases awaiting jurisdiction in the Delhi High Court to be processed.

In 2010, India's highest judge K. G. Balakrishnan estimated the total number of pending cases to be a 27 million. To deal with such a backlog, there are simply not enough judges in the land.

The lawyer and activist Shweta Bharti from New Delhi describes the Indian justice system as very sophisticated and Indian law as comprehensive. "The problem, though, is how it is put into practice. It can take years to get justice. And there are a lot of loopholes."

Women hold placards as they march during a rally organized by Delhi Chief Minister Sheila Dikshit (unseen) protesting for justice and security for women (Photo: REUTERS/Adnan Abidi/Files)

The infamous rape case has sparked fury and demands for profound changes to the justice system

Such loopholes might be used to allow criminals to get away with little or even no punishment, according to Bharti. The police often find they have their hands tied.

Kamini Jaiswal, a lawyer with India's Supreme Court, would even go a step further. "There are no independent investigations in India," said Jaiswal. "More than seven years ago the Indian Supreme Court issued a ruling that police forces in India must be completely independent (of politicians). There are politicians who don't want the police to work independently. If investigations are hampered, how can we assume that offenders are also going to be convicted and sentenced?"

According to the Association for Democratic Reform, a non-governmental organization in New Delhi, proceedings are pending against a quarter of politicians in the Indian parliament - some as serious as murder, kidnapping and robbery.

The Indian justice system is strongly influenced by an Anglo-Saxon understanding of law. At the pinnacle of the judiciary, according to the Indian constitution of 1950, is the highest court - The Supreme Court of India.

The main task of 26 judges appointed by the president is, above all, to settle disputes between the federal states as well as between the federal states and the government. Rulings passed down from the Supreme Court in New Delhi are binding for all courts in the country.

Students shout slogans during a candlelight vigil protesting against a leader of the ruling Congress party on accusations he raped a woman in a village in the early hours of the morning, in Gauhati, India, Friday, Jan. 4, 2013(AP Photo/Anupam Nath)

The incident has prompted many Indians to look at wider social issues as well

At the next level are the High Courts, the highest courts within the individual states. In addition there are district criminal and civil courts. At the village level, decisions are made by the village councils, so-called "Panchayats," which deals with small misdemeanors.

Only marital and family law are dealt with according to religion. For example, Muslims, who make up about 16 percent of the Indian population, have their own marriage laws.

Women as victims

The activist Shweta Bharti sees women in India as being at a particular disadvantage. Because of their low status in society, they are often sent home when they file charges of violence. If they are uneducated and poor, it is even more difficult - especially in rural areas.

With some officers corrupt, policing can be fairly arbitrary in nature and many, especially rape victims, remain silent for fear of being socially ostracized. It is a viscous circle.

At the moment in India, only 20 percent or so of all cases result in a conviction. "In the case of rape for example, in many places, the woman must gather evidence of what happened to her," Barti said "What is the woman supposed to do? Often there is simply not enough evidence. If the accused disappear and the police are not able to find the suspected perpetrator, then the investigation comes to nothing."

Sometimes women are sent away from the police even if their grievances are especially grave. "When it comes to domestic violence, then women prefer to keep quiet, because they don't want to place a burden on their family and they fear reprisals," said Bharti, adding that, they often have no knowledge about their rights.

Women in India (Photo: Lakshmi Narayan)

Women, especially from poor families, are less likely to find justice

The vulnerability of women and the discrimination that they face is also a general problem, according to lawyer Kamini Jaiswal. "The point is that police and judges have no idea at all about what to do when it comes to these gender specific issues. Because of the prevailing values, women are not seen as equal. People are not used to the idea that a woman would leave her own four walls."

Efforts at reform

In 2004, the Indian government had already set up 1,700 fast-track courts across the country to process the large number of cases that the justice system had to deal with. In 2011, it withdrew its support for these after a succession of complaints about procedural errors came to light.

The case of the young student who was gang-raped in a moving bus is being dealt with by a fast-track court in Delhi. The trial, the government has promised, should last no more than 100 days. It is a tall order.

The indictment alone against the five suspected adult perpetrators - a sixth one is still a minor - is 1,000 pages long. The family of the deceased victim has called for the death penalty for those who committed the killing. The death sentence is only imposed in India in the most serious of cases.

"When it comes to the trial of the suspects, fairness is more important than speed," stressed Altamas Kabir, the chairman of the Indian Supreme Court.

The Indian government has now set up two commissions: One is to shed light on any possible mistakes that were made in the investigation of the rape case. The other is supposed to develop recommendations on how violence against women might be reduced and how the justice system might be reformed. It is an ambitious goal. With elections coming next year, the government is really feeling the pressure.

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