After a fatal gang rape last December, India set up fast-track courts to speed up trials of sex offenders. Ahead of the first sentencing in the case, lawyer Pinky Anand examines the effectiveness of these courts.
Nationwide protests after the deadly gang rape of a young medical student in the country's capital, New Delhi, prompted the Indian government to promise swift justice by setting up a special fast-track court.
However, eight months after the brutal incident, the judgment in the so-called Nirbhaya case is yet to be pronounced. After several deferrals, the long-awaited verdict is now expected to be delivered by the end of the month. In a DW interview, Supreme Court lawyer Pinky Anand says that despite its numerous shortcomings, the Indian judiciary has been making "significant progress."
DW: Why has the verdict been deferred four times?
Pinky Anand: The Juvenile Justice Board deferred the verdict on one of the suspects on trial over the Nirbhaya rape case in view of the pending decision of the Supreme Court on the issue of juvenile maturity.
A petition had been filed in the Supreme Court by Subramanian Swamy, a lawyer and opposition leader, calling upon the court to reinterpret the definition of the term "juvenile" in context of an international treaty to which India is a signatory.
However, on August 22, the Supreme Court of India cleared the way for the Juvenile Justice Board to pass its decision irrespective of the pending petition in the Supreme Court. The verdict is now likely to be pronounced on August 31, 2013.
What difference would a new definition of the term 'juvenile' make in this case?
Amendments in criminal law are not retrospective in nature. Therefore, in my opinion, the redefinition of the term 'juvenile' may not have any bearing on the verdict of the Nirbhaya rape case as any interpretation may not be considered retrospectively.
But there is another possibility. It has been argued by Swamy that the Court is bound to consider the emotional, mental and intellectual maturity of the accused juvenile before considering him for trial under the Juvenile Justice Act.
According to the petition, Indian law, based on the UN Convention on the Rights of the Child, the so-called Beijing Rules, "has left many unintended gaps in the statute," which need to be rectified. It says that while the Beijing Rule requires "emotional, mental and intellectual maturity of the juvenile to be borne in mind," Indian law has fixed the age of the accused "without any ifs and buts."
If the arguments of Mr. Swamy succeed and the term 'juvenile' is redefined, then in that event, the juvenile accused in the Nirbhaya case need not be tried under the Juvenile Justice Act.
While it is not unusual in other countries for high-profile cases to drag on, the court hearing this trial was formed specifically for speed, a standard it hardly begins to meet. What message are the delays sending out to the victims of sexual violence?
For Indian standards, the conclusion of the trial of accused in the Nirbhaya rape case is remarkable. The crime was committed in December 2012 and the trial of the juvenile accused was concluded in July 2013. The trial of the other accused is likely to be completed in another month or so as the final arguments have already commenced.
Earlier, such trials would easily take two to three years. Although delays and prolonged trials are still a feature of the Indian judiciary, significant changes are being adopted to ensure that effective justice is imparted. Moreover, quick adjudication of trials cannot be at the expense of effective justice. Due process of law is the hallmark of Indian democracy. Fast-track courts are being established to try persons accused of sexual assault. Therefore though there is scope for further improvement, there has been significant progress.
According to government figures, there were over 30 million cases pending in the Indian courts in 2010. A law commission report in 2009 suggested a complete overhaul of the country's legal system. What are the main problems currently faced by the Indian judiciary?
The main problems include an immense backlog of cases which leads to protracted justice. The backlog is due to an insufficient number of judges, support staff, etc. Accommodation provided to the lawyers in proceedings is also a major problem, since it allows the lawyers to seek adjournment on one account or the other. The lawyers therefore should not be given adjournments as a rule. Protracted arguments are a further issue. The level of responsibility assigned to each and every limb of the Indian judicial system should be increased.
Indian governments have repeatedly talked about setting up a fast-track court system. Would such a strategy work or does the Indian justice system need a complete overhaul?
Setting up a fast-track courts system is one of the answers to solve the problems. However, in order to bring about a complete change in the system, I believe the level of commitment, sincerity, dedication of each limb of the justice imparting system has to increase.
The lawyers should feel more responsible towards their clients; the judges should feel more responsible toward the public. I believe that there should be a change in the attitude of the people associated with the judicial system and increasing level of professionalism with the right mix of humanity should be observed by all.
Pinky Anand is a senior lawyer practicing in the Supreme Court of India. She specializes in cases for women, constitutional law and international law.
The interview was conducted by Srinivas Mazumdaru.