Need to Amend S.354 IPC

(By J. Sandhya, Advocate, Thiruvananthapuram)

In the midst of October, women’s groups all over Kerala converged in Thiruvananthapuram with the mandate of persuading the State Government to make adequate changes in the legal system, to make it more gender sensitive. One of the prominent demands placed was to make suitable amendment in S.354 of the Indian Penal Code taking into consideration the gravity of the offence, ‘outraging the modesty’ of the women.

Violence against women and girl child is ever escalating in the State of Kerala. However the conviction of culprits in these cases is abysmally low due to various reasons. Even if the judiciary decides to punish the offenders mercilessly and inexorably, in the severest terms, often it is unable to do so, as there is lack of adequate punishment in the Statutes thereby making the judiciary helpless. Needless to say that imposition of a grossly inadequate sentence is an injustice to the victim of the crime in particular and the society in general and at times it encourages the crime itself. It is the crying need of the hour to check these fall outs and make adequate changes to help people to repose faith in our judicial system. The demand that the women’s groups make should hence be analyzed in this context.

All sexual assault cases short of penetration are generally booked under S.354 of IPC. This particular section penalizing ‘outraging the modesty of women’ at present has no prescribed minimum punishment and is a ‘bailable’ offence ‘triable’ by any ‘magistrate’. Most of the times culprits get away by paying just a ‘fine’ leaving the victims wondering why they had taken the efforts to report the case at all. In the given social situation contesting a sexual assault cases in court is not an easy task, at no stretch of one’s imagination.

The Hon’ble Supreme Court in Bharwada Bhoginbhai Hirijibhai v. State of Gujarat (VII-1983 (2) CRIMES 232) rightly gave point wise reasons as to why women in India hardly come to court with cases on sexual assault . The Hon’ble Court enlists the following as the reasons:

1. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home happiness being shattered (5) If she is unmarried she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy (10) The fear of victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence (11) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit , and the risk of being disbelieved, acts as a deterrent.

Braving all the above odds when the woman decides to contest the case in the Court for justice, it is the duty of the system to respond positively and to extend all necessary help for her to get justice. Unfortunately this never happens. Surprisingly even the punishment prescribed in our statutes is never adequate considering the gravity of the crime on women.

Taking into account the impact of sexual assault on women physically and mentally, the punishment prescribed under S.354 of IPC for two years or fine or both is extremely insufficient. It is in fact a mockery of women.

Recently, the Hon’ble Kerala High Court in its order on the bail application (B.A. No. 4229 /2008 -- 2008 (3) KLT 558 - Santhosh Madhavan v. Circle Inspector of Police) moved by Santhosh Madhavan (who is accused of raping minor girls) tried to alert the legislators to consider amending the S.354 at the State level itself with immediate effect so as to curb the atrocities on women to some extent. In the above speaking order, Hon’ble Mrs. Justice Hema airs the same frustration of the social activists by saying that the law makers appear to have either not understood the gravity of the problem or they are shutting their eyes to it.

Realizing the gravity of the offence various States in India like the State of Andhra Pradesh, amended the provision way back in 1992 by prescribing the minimal punishment to be 2 years and making it a non-bailable offence triable by ‘Sessions Court’.

The need of the hour is to mould and evolve the law so as to make it more sensitive and responsive to the demands of the time. It is high time that we closely reflect and critically analyze the impediments that victims of violence face from the legal system and work on it. At least the interventions that we make now would help our next generation to live in a gender just world. Let amending S.354 be the first step towards this direction.

Victimology -- The Weak Limb of Criminal Justice Delivery System

(By V.K. Babu Prakash, Munsiff, Nedumamgad)

“Everything said here has been said before.  As no one listens to the same, let us begin it again from the beginning”.  

-- Andre Gide, the French Thinker

The concept of victim’s right is gaining the ground now in India with the terrorist attacks and other criminal acts are on the rise. Much is talked about the rights of the terrorists as accused who must get fair trial, legal aid and equality before law. Yet, Indian Society should first and foremost recognise the rights of the victims of terrorism and other criminal acts. The victims also have right to live, something that the terrorists and criminals do not recognise. Nobody talks about the right of the victim and his sufferings, but every body shouts about the rights of the accused. The Honourable High Court of Kerala in a recent decision held that the accused need not even appear before the trial Magistrate during pre-trial, trial or at the stage of pronouncing Judgment. It has limited the scope of trial before a Magistrate which meant that trial is a process whereby the accused and victim participate to help the court to find the truth from false. As the accused need not appear in the Court, the trial has practically become a duel between the prosecution and defence lawyer. Inspite of the fact that Code of Criminal Procedure prescribes that what all evidence that the prosecution has to render, it has to be rendered in the presence of the accused, now the accused need not be present in Court to watch the evidence and participate in the trial. Everything now he can pass on the buck of the lawyer who will be the knight in shining garb protecting his rights all throughout. But what about the hapless victim? He has to run from the pillar of the Police Station to the post of the prosecutor’s office to move his grievance redressed before the court of law. Nowhere he gets any proper attention. His status is only that of a witness who laid the information or witnessed the incident. His status is not at all glorious unlike the status of an accused who has every privilege under the sun. The victim will be ridiculed in the police station. He will be ignored in the prosecutor’s office. His plight is in tedium and trauma every where. Even in the court he does not get any fair treatment. There he has to bear the brunt of the clever and skilled defence lawyer who will terrorize him to become mute. If the victim is not sophisticated he cannot withstand the onslaught. Court’s power is limited which cannot always protect the victim during the course of trial as it may attribute bias to the victim. So, victim is a victim everywhere.

The Indian Penal Code defines offence and prescribes punishment and its mode of sentence.   It does not recognize victim’s right and its mode of enforcement. Though Code of Criminal Procedure recognizes the right of victim in a pale and limited sphere, it is not at all comprehensive enough. S.357 Cr.P.C. though recognizes the award of compensation to the victim, it has not developed into the branch of victimology at all. The Law Commission in its 41st report has recommended that power of awarding compensation by Criminal Courts to the victim of crime must be exercised by the court in a sense of reality. The Supreme Court also in a number of decisions held that S.357 Cr.P.C. empowers the criminal Court to award compensation to victim which power should be exercised liberally so as to meet the ends of justice in a better way. Never the less, awarding monetary compensation does not uplift the right and status of the victim in par with the right and status enjoyed by the accused before the Criminal Justice Delivery System.

Justice Malimath’s Committee appointed to recommend measures to revamp criminal Justice Delivery System made so many recommendations in its report. Among them the most progressive and drastic suggestion was the recommendation to uplift the status and role of victim in the system. Unfortunately, it was not considered or implemented by the Government of India. What is the solution to get justice by the accused and victim equally? The United Nations in 1985 formulated certain basic concepts to render justice to the victim of crimes. It recognized four basic rights. Those are:-

(1) Access to Justice:- There must be immediate measure taken to redress the grievance-victim must be made aware of his legal rights. Free legal aid should be provided to conduct cases. Victim’s privacy and security should be protected.

(2) Wealth and property:- The property or wealth which is lost or destroyed should be restored to victim, or else adequate compensation shall be provided.

(3) Compensation:  If adequate compensation could not be realised from the accused, it must be realised from the Government. Government should formulate  a National Compensation Fund for victims for the same.

(4) Assistance:-   Victim should be provided with Individual help and   assistance-Government, NGOS and Society should be accountable for it.

In England a law was enacted in tune with the UN concepts in 1995. British Home Department conducted an enquiry in 2001 on Criminal Justice Delivery System in England. The result was shocking. In Criminal Cases, the interest of the accused alone was given much predominance than the interest of the victim. When each case ended in acquittal, the condition of the victim fell from bad to worst. Investigation process takes long time. Trial takes too long a time in Courts. The state agency does not care to inform the progress or the stage of the case to the victim. It does not care about the safety or security of the victim. When the victim contacts the state agency, he gets only an indifferent attitude. Thus England made some vital changes in its system. When an accused is enlarged on bail, it would be informed to the victim. Victim can approach the court and file affidavit setting forth his grievances. State agency should provide adequate safety and security to the victim and the witnesses. A Code must be made setting out the rights of the victim before the Criminal Justice Delivery System.

In France the System is more victim friendly. From the stage of investigation till trial is concluded, the victim has an important role to play. If the prosecution does not conduct the trial fair, the victim can conduct the case by his own chosen counsel. Victim can lay evidence other than that laid by the prosecution. But, what about the system in India? The victim does not have any role during the investigation other than giving a statement before the agency. There is no guarantee that the agency would record the true statement. The statement has no value before the Court. Victim does not have much roles to play in trial too. The Courts do not recognise the right of the victim to oppose the bail application of the accused. He is either an informant or a witness at the most. The status of rape victim is more sorrowful.   She has to narrate the incident of rape again and again, word by word to the investigating agency who would mostly packed by men. She will be hunted by the media to curry-favour their spicy stories. At last she has to stand the test of the trial ordeal in the court. When all these are over, she will be a crushed being who has to live the rest of her life with a ravished body and wounded psyche. When clever lawyers manage to get favourable orders for their accused clientele, it really enlarges the rights of the accused. The weak victim will in turn be pushed down and down into the deep pit of his miseries. The present Criminal Justice Delivery System is nothing but an acrobatic exercise between the prosecutor and defence lawyer, where the defence lawyer wins, for sure. The system has to change and it has to change drastically.

Paperless Courts -- A Revolutionary Concept

(By V.B. Hari Narayan, Advocate, High Court of Kerala)

The Courts in India are flooded with cases which in other words means, loads and loads of papers. Imagine a situation where the filing of cases are done and their judgments are delivered through e-system. The Herculean task of storing the case bundles containing important documents could be avoided and the amount spent on stationary can be utilized for other meaningful purposes.  Dubai Courts are setting an example by trying to emerge as a paper free Court. 

The Dubai Courts have recognized the importance of keeping pace with modern technology, to maintain leading position in judicial, legal and research services. The electronic systems that are in place in Dubai Courts are the most sophisticated of their kind in the world. 

Collecting petitions and deposits relating to suits or cases electronically through the website, in coordination with the e-government are benefiting hundreds of litigants, who can pay electronically for the petitions and deposits of more than ten type of cases such as Shariah cases, inheritance related cases, cases relating to minors, the civil/general civil execution cases etc. The e-payment system provides simplified payment solutions to serve clients and reviewers. 

Apart from the above, there are as many as 437 services provided by Dubai Courts for all its clientele. Perhaps the most prominent ones of these electronic services are those provided to Judges, such as making available the rules for deciding cases, and to lawyers including lawyer’s communication service through e-mail designed to know resolutions of the hearings for their cases held that day. Additionally, lawyers can get all the necessary information about dates and places of next day’s sessions, saving their time.  This is in line with Dubai e-government strategy to convert all services provided by the Departments to online services. 

One such unique but simple system adopted by Dubai Courts is relating to book borrowing. The Dubai Court Library has activated and developed an electronic service to follow up the borrowed books through introduction of electronic reminder notices. This system is characterized by accurate follow up of the borrowing process to ensure return of books in due time. 

Dubai Courts have been working to manage law suits through sophisticated and cohesive electronic systems which cover all steps of suit proceedings from registration process, litigation, issuance of judgments to following up of executions at all three court levels (First instance, Appeal and Supreme). For instance, informing the litigants/lawyers through SMS about the posting of cases is a very useful and friendly mechanism. 

India too has understood the importance of modernisation in the legal front. Infact the Supreme Court of India has constituted a committee for monitoring the Computerisation of Law Courts throughout India. The simple but efficient methods followed by the Dubai Courts could be adopted in the Indian Legal field also if necessary amendments are made to the procedural laws. For eg. serving of summons/notice through electronic media, including SMS as an alternative mechanism needs serious consideration. The procedural laws based on Anglo-saxon jurisprudence, hitherto followed by Indian Courts have necessarily to change according to the changing times.