Delayed Verdicts in Reserved Judgments – Some Judicial Dimensions

(By O.V. Radhakrishnan, Senior Advocate, High Court of Kerala)
Email : ovrradhika@yahoo.com    Ph.: 0484 – 2390318

‘Delayed verdicts in reserved judgments’ is a constitutional conundrum for want of suitable measures in the Constitution specifying a dead-line for delivery of judgment from the date the case is reserved for judgment. The constitution does not put a strict time-limit on the delivery of judgment once the entire process of participation in the justice delivery system is over.  The litigants suffer persecution for justice stake on account of the inordinate, unexplained and negligent delay in pronouncing the judgment.  I should like to include a quote from  Walter S.Landor “Delay of justice is injustice.”   

In State of Orissa v. Binapairi Dei¹  the Hon’ble Supreme Court observed: “If there is a power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power.  If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity.  That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.” When a litigant approached the Court for getting his grievances redressed and is made to wait for judgment after arguments on both sides are concluded and reserved the case for judgment to an uncertain future is disastrous.  The pronouncement of the judgement is a part of the justice dispensation system and the delay in disposal of cases may shake every confidence in the judicial system which is tragically ignored by some Judges.  

A judgment of distant days offends against the maxim actus curiae neminem gravabit, that an act of the court shall prejudice none. The ‘inordinate, unexplained and negligent delay’ in protracting the pronouncement of the judgment for the period ranging from 4 months to 12 months and above since the date of posting the case for judgment is highly undesirable, bad in law and infringes the objectives of Delivery of Justice and its Speedy Reach.

In R.C.Sharma v. Union of India²the Hon’ble Supreme Court ruled: “12...........Nevertheless, we think that an unreasonable delay between hearing of arguments and delivery of a judgment, unless explained by exceptional or extraordinary circumstances is highly undesirable even when written statements are submitted.  It is not unlikely that some points which the litigant considered important may have escaped notice.  But, what is more important is that litigants must have complete confidence in the results of the litigation.  This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgments. Justice, as we have often observed, must not
only be done but must manifestly, appear to be done.” 

In Bhagwandas Fatechand Daswani v. HPA International³ the Hon’ble Supreme Court observed: “A long delay in delivery of the judgment gives rise to unnecessary speculations in the minds of the parities to a case.  Moreover, the appellants whose appeal have been dismissed by the High Court may have the apprehension that the arguments raised at the Bar have not been reflected or appreciated while dictating the judgement – nearly after five years.” 

In Anil Rai v. State of Bihar⁴the Apex Court ruled: “4. It has been held time and again that justice should not only be done but should also appear to have been done.  Similarly, whereas justice delayed is justice denied, justice withheld is even worse than that. ..........but once the entire process of participation in the justice delivery system is over and the only thing to be done is the pronouncement of judgment, no excuse can be found to further delay for adjudication of the rights of the parities, particularly when it affects any of their rights conferred by the Constitution under Part III. ”     “7.  Adverse effect of the problem of not pronouncing the reserved judgments within a reasonable time was considered by the Arrears Committee constituted by the Government of India on the recommendation of the Chief Justice’ Conference.  In its report of 1989-90, Chapter VIII, the Committee recommended that reserved judgments should ordinarily be pronounced within a period of six weeks from the date conclusion of the arguments.  If, however, a reserved judgment is not pronounced for a period of three months from the date of conclusion of the arguments, the Chief Justice was recommended to be authorised to either post the case for delivering judgment in open court or withdraw the case and post it for disposal before an appropriate Bench.”  “10. Under the prevalent circumstances, in some of the High Courts, I feel it appropriate to provide some guidelines regarding the pronouncement of judgments which, I am sure, shall be followed by all concerned, being the mandate of this Court.  Such guidelines, as for the present, are as under:

(i)   The Chief Justice of the High Court may issue appropriate directions to the Registry that in a case where the judgment is reserved and is pronounced later, a column be added in the judgment where, on the first page, after the cause-title, date of reserving the judgment and date of pronouncing it be separately mentioned by the Court Officer concerned.

(ii)  That Chief Justice of the High Courts, on their administrative side, should direct the Court Officers/Readers of the various Benches in the High Courts to furnish every month the list of cases in the matters where the judgments reserved are not pronounced within the period of that month.

(iii)On noticing that after conclusion of the arguments the judgment is not pronounced within a period of two months, the Chief Justice concerned shall draw the attention of the Bench concerned to the pending matter.  The Chief Justice may also see the desirability of circulating the statement of such cases in which the judgments have not been pronounced within a period of six weeks from the date of conclusion of the arguments amongst the Judges of the High Court for their information.  Such communication be conveyed as confidential and in a sealed cover.

(iv)Where a judgment is not pronounced within three months from the date reserving it, any of the parties in the case is permitted to file an application in the High Court with a prayer for early judgment.  Such application, as and when filed, shall be listed before the Bench concerned within two days excluding the intervening holidays.

(v)  If the judgment, for any reason, is not pronounced within a period of six months, any of the parties of the said lis shall be entitled to move an application before the Chief Justice of the High Court with prayer to withdraw the said case and to make it over to any other Bench for fresh arguments.  It is open to the Chief Justice to grant the said prayer or to pass any other order as he deems fit in the circumstances.

 11. We hope and trust that the above guidelines shall be strictly followed and implemented, considering them as self-imposed restraints.”

Regarding the aspect of delay in pronouncing judgments after a conclusion of arguments, Thomas J reiterated the above guidelines for providing added emphasis to them.  It has been clarified that the above enumerated measures are intended to remain only until such time as Parliament would enact measures to deal with the problem. 

The financial cost to be incurred by the litigants as a result of releasing a case after it has been heard over a long period and judgement has been reserved compounds not merely the delay but also expense for parties to incur to engage a counsel for a fresh round of hearing/s which is an aspect deserves serious consideration.

We may note at this point that the Constitution of India remains unexpressed regarding the contingency when Supreme Court and High Court Judges do not pronounce judgments promptly. It is necessarily for the obvious reason that the founding fathers of the Constitution reposed great trust and confidence on the sense of responsibility and accountability of the Supreme Court and High Court Judges occupying the seat of justice in discharging their constitutional obligations. The Judges will have to hold to the trust and confidence reposed on them and are all the more accountable for delivering judgments with promptitude.

Article 226(3) of the Constitution lays down that when a party against whom an ex parte interim Order is made and that party makes an application to the High Court for the vacation of such Order, the High Court shall dispose of that application within a period of two weeks from the date on which it is received or from the date on which the copy of the such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim Order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated. Article 226(3) is confined to ex parte interim Orders only and does not cover cases where ex parte interim Order is not initially granted. A provision unprovided for in the Constitution fixing a time-frame between the date of final hearing of a case and the date of delivery of the judgment arouses much public concern and disconcert to the litigants. It is for the Parliament to exercise constituent power to provide a suitable provision in the Constitution to ensure that delay in justice delivery system is not caused. Unreasonable delay in handing down judgment every so often makes the final decision of the Court completely unpredictable wild card.

Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking that the Judges might have acted with unwarranted casualness and indifference. Sometimes, the Judges themselves forget points of vital importance and points of details argued at the time of hearing and the arguments developed brick by brick become obliterated by passage of time. The lessons made manifest by experience are that the Judges forget the details of the facts and niceties of the legal points advanced when the interval between the date of hearing of the case and the date of judgment is too long.  The judges have prodigious deal of time for delivery of judgments at their disposal.  And yet, reserved judgments continue, in the words of the Supreme Court itself, to “remain consigned to hibernation.”   

The blighting effect of reserving judgements to an undated future was considered by the Arrears Committee constituted by the Government of India on the recommendation of the Chief Justices’ Conference. The Committee in its Report (1989-1990) published by the Supreme Court of India-1990 recommended:  RESERVED JUDGEMENTS – STATUTORY LIMIT FOR PPRONOUNCEMENT – “8.27 Reserved judgment should ordinarily be pronounced within a period of six weeks from the date of conclusion of the arguments.  If, however, a reserved judgment is not pronounced for a period of three months from the date of the conclusion of the arguments, the Chief Justice may either post the case for delivering judgment in open court, or withdraw the case and post it for disposal before an appropriate Bench.  It is desirable than appropriate rule or statutory provision is made in this behalf.” 

Indubitably, pronouncement of judgments promptly is an essential attribute of speedy justice. Constant delay and equivocation affect the judicial business which should be dispatched with swiftness. High Courts and Supreme Court are untrammelled by any rule or law regarding the period for pronouncement of judgments or orders but is only trammelled by judicially evolved rules of conscience in the absence of a provision in that behalf in the Constitution.

This desideratum is feasible provided Parliament vest with the constituent power under Article 368 of the Constitution to amend the Constitution add a provision prescribing time-limit for delivery of judgement since the date the case is reserved for judgement after final hearing of the case. The necessity to deliver judgments immediately after the hearing is over, is sine qua non of   the concept of the rule of law.

 It’s high time for the Parliament to exercise its constituent power to amend the Constitution to meet the situational needs and to provide for the particular situation to ensure just delivery of justice.  It is the responsibility of the legal system to provide its seekers justice, in letter and spirit and that the delivery of justice should be reasonable, quick and just but never without quality.  It is indispensable for the system to survive and to go on.

Foot Notes:

1.  State of Orissa v. Binapairi Dei (1967 KLT OnLine 1228 (SC) = AIR 1967 SC 1269).

2.  R.C.Sharma v. Union of India  (AIR 1976 SC 2037).

3. Bhagwandas Fatechand Daswani v. HPA International (2000 (1) KLT SN 50 (C.No. 56) SC = (2000) 2 SCC 13).

4. Anil Rai v. State of Bihar (2001 (3) KLT SN 15 (C.No. 21 (SC) = (2001) 7 SCC 318). 

Aim at the Stars; For there are Plenty of them

(By Kaleeswaram Raj, Lawyer, Supreme Court of India)
E-mail : kaleeswaramraj@gmail.com,  Mob. 9446360675

(Edited text of the Keynote Address Delivered at the Convocation Ceremony for the Graduated Students of 2024 - 25 Batch of Government Law College, Ernakulam held on January 4,2025, at Kochi)

Dear Principal Dr.Bindu M.Nambiar, Honourable Judges -- JusticeA.K. Jayasankaran Nambiar, Justice Sophy Thomas, Justice Abdul Hakhim, Justice Syam Kumar and Justice Easwaran and other dignitaries on and off the dias, my Dear Students, for whom today’s function is intended, and all the Teachers, Staff Members, Friends, Brothers, and Sisters,

It gives me immense pleasure to engage with the students and teachers of this legendary institution that was established in 1874 which celebrates its 150th anniversary. I thank the organisers of the event as well as the institution for this  benevolent gesture.

This function reflects something special for the students. It demonstrates the persistent care and concern of the teachers at the college for the future of the outgoing students. The fine qualities of the conventional legal education in India are yet to be properly identified and encouraged. I had an intense personal relationship with Prof. N. R. Madhava Menon, who, by way of National Universities, motivated the whole nation to take legal education more seriously. But even according to Prof. Menon, in the field of litigation, lawyers from conventional colleges are often as good as those from the so-called premier institutions in terms of ability and professional success in litigation.  The reasons behind this phenomenon are worth exploring, with a critical approach, to improve our means further.

Let me also put it bluntly: The students from the conventional law colleges do well in the courts in India, ranging from the trial courts to the Supreme Court. They are successfully competing with their colleagues from the National Law Universities and other similar centers of excellence. I believe that the conventional virtue of the traditional system offers a lot in understanding the realities of life and the society around us. The sense of freedom in these institutions and the humane and organic relations cultivated here make us   better students of law and life. These institutions help to develop the instincts in the students to know the client, the opponent, the judge, and the society, in a much better way.  Going by what David Pannick said, “the task of the advocate is to be argumentative, inquisitive, indignant or apologetic-as the occasion demands-and always persuasive on behalf of the person who pays for his voice”(Advocates, Oxford University Press, 1993). I dare to supplement Pannick by saying that many of the conventional law colleges help developing these traits in the youngsters abundantly and  the courts in India tender an empirical evidence for this statement.

I welcome you to the magnificent world of law. I would particularly welcome you to the area of litigation, the most dynamic manifestation of a person’s life in law. You might read Learning the law by Granville Williams (Thomson Reuters, South Asian Edn 2022) which is always regarded as a beginner’s classic across the globe, that would guide you to the multiple career options based on your legal acumen. Yet, this is a work primarily in the British context. I would prefer to give you some Indian tips for a splendid career in litigation.

 • You are in the process of learning and evolving every day. Do the hard work which is at the most solid and reliable foundation for your career.

• Money is only a bye - product of the profession, not its aim. Vincent van Gogh famously said – “Your profession is not what brings home your weekly paycheck, your profession is what you are put here on earth to do, with such passion and such intensity that it becomes spiritual in calling”.

• Respect the judges, yet please do not be afraid of them! You get the confidence based on your homework. That equalises you with the Bench. That facilitates a dialogue in court, that enhances the quality of judicial democracy. Be bold. As Jurist H.M.Seervai was usually to say, courage is the greatest virtue in lawyering, for without courage, there is no truth. Let the boldness be grounded on surer foundation of learning and erudition. It should not be the shallow enthusiasm of an upstart. Be thorough with the facts; be updated in law. Have a photographic assimilation of materials placed before the court. And also, place everything relevant in court.

 • You are doing not merely a job. Your position is between the State and the citizen. You do the emancipatory function of uplifting the citizen from the clutches of an aggrandising State. Recalcitrant executive of modern times, across the world, make the lawyer’s job pivotal.

• Never think that the constitutional law manifests only in the higher judiciary. A criminal trial or bail plea necessarily involves issues of liberty and other fundamental rights. In the broad sense of the phrase, every lawyer is a constitutional lawyer. When Article 22 of the Constitution speaks about the arrested person’s right to be consulted with/defended by a legal practitioner, it indicates the fundamentality of the profession.

• Choose your first office wisely. Ensure that you get opportunities to learn and to grow up. Reasonable remuneration is not a bounty for a junior lawyer. Create your space in the office and make yourself indispensable for the firm that accommodates you. Discover that wonderful reciprocity! Let your life and career be useful not merely to yourself and your family, but for the institution of judiciary and the society at large.

• Concentrate on quality research. Find out the knack for legal drafting. In the Supreme Court, very often it is the draft of the Special Leave Petition that decides its fate during the admission hearing, rather than the legal arguments by the counsel. Pleadings make the foundation of the case for either side. An omission to deny an averment in the plaint could be fatal. This, I learnt 35 years ago. Even today, quite frequently, across the country, courts are told about lack of denial of certain plaint averments.  This means that the first principles are eternal. Learn them, follow them, evoke them, and practise them.

• Read the classics. They have the potential to transform you. When I did not have anything worth doing during my initial days, I asked my senior to give me some tasks. He gave me the Posthumous work by P. R. Sundara Aiyar titled “A Treatise on Malabar and Aliyasanthana Law” (1922) to read.  Though it did not fascinate me much, since it was suggested by my senior, I read it almost fully without any instant advantage in any Lis. Yet slowly I realised that it helped me to delve into the unique matrilineal system and its various facets, ranging from management of Tharavad to inheritance under the joint family system. It helped me understanding the depths of civil law, though not fully learning it. Civil law, according to my senior, is like classical music. Learn the classical music first, so that you can learn the light music in a lighter way quite easily and quickly. Go to the trial court and draw up your professional foundation. Let your journey start from the earth so that you grow up to the sky. And you can grow yourself only on the ground and not in the sky. Read a lot. Expand your horizons by expanding your reading. Literature, Philosophy, Art, Science or History- nothing is alien to a lawyer. A lawyer is not a technocrat. And technocracy in the legal realm is a horrible stuff.

• Learn from your mistakes. Your initial days could have certain follies either due to inadvertence or ignorance. Learn from them, for those can teach you immensely.

• Mind your language. I recall a platform at Kozhikode that was shared by Justice Krishna Iyer and Justice K.T.Thomas. It was about 30 years ago. Krishna Iyer’s diction is synonymous for a lawman’s creativity. On the other extreme, there could be simple straight forward language in law. I recall Justice K.T.Thomas describing Denning’s language as Telegraphic language. He compared it with Gandhi’s language. It was an authentic speech. My request to you: write and speak in your own language. It is unique; as unique as you. Be proud of it. Yet, improve it every day.

• Mange your time, also help managing of your office. Let me disclose a truth to you: Many of the busy lawyers in India find it difficult to manage their office or litigation firm. It is a tragedy that office management is not taught in our law colleges. So, help your colleagues and seniors in putting the office in order.

• Do not be book worms, either. It is a tragedy that the selection to the trial judiciary is still based on memory test as done by way of written exam. This method is quite outdated and even irrelevant in the age of Google. It makes sense if the candidate is tested with her ability to analyse the pleadings or evaluating the evidence, after furnishing her the copies of plaint/written statement or deposition during the examination. Such an assessment of merit will attract more creative people to the trial judiciary. It might improve the quality of our trial courts as well.

• You are in a different judicial ecosystem. The online courts have altered the lawyers’ professional landscape. By sitting at Ernakulam, you argue before a trial court in a small town in the state and immediately thereafter you address the High Court or even the Supreme Court. Richard Susskind has, in his famous work on online courts
(2019), predicted that physical courts will turn obsolete soon. Online courts have been the biggest revolution in Indian judiciary post-independence, thanks to the efforts by former Chief Justice D.Y.Chandrachud. It is a great equalizer, in a profession that still carries traits of elitism and plutocracy. Use the tremendous potential of digitisation to your advantage and the citizen’s advantage.

And finally: Thrive for excellence in whatever you do. Try to get rid of the mediocrity that the system might try to impose upon you. Remember the poetic admonition by Kahlil Gibran- “It is a pity you cannot sit upon a cloud”. Aim at the stars, for there are plenty of them.

There are, of course, other avocations in law including teaching, administration, journalism, academic research etc. Each one of these is as important and significant as litigation. It is a matter of choice that depends upon one’s aptitude. Remember that a law graduate has thousands of options. He can live thousands of lives. So don’t be disappointed when you fail in some small battles. You are here ultimately to win the war!

With a very short personal account I may wind up. I will not claim anything extraordinary in my career. Yet, I should tell you that a different way is possible even for the most ordinary among us, the humblest among us. I am a first-generation lawyer, who started in the mofussil town of Thalasseri and Payyanur. It is this profession that gave me a life when I found myself in miseries during my young age. I learnt from my Gurus. They include the legends like V.R.Krishna Iyer, his favourite junior M.P.Govindan Nambiar, under whom I started my practice. I have tried to learn from my colleagues, judges, seniors, and the academics across the world. I have also learnt from my clients. As Jiddu Krishnamurti said, every human being is a universe and therefore, every person might teach you a lot. Observe every lawyer in court good or not so good and try to learn or unlearn from him constantly. He might teach you how to argue or sometimes how should not be an argument!

 Let the ultimate power of the Universe help you in your avocation and take you to greater heights. To each among you, I may say something personal: In the famous work The Road, Cormac Mc Carthy , American author, wrote-“You have to carry the fire……it is inside you. It always was there. I can see it.”

God Bless you all. Thank you !

Need for Revamping Sections 63 and 64 of the Bharatiya Nyaya Sanhita, 2023

(By Sajeer H., Law Officer, Principal Directorate, Local Self Government Department,  Thiruvananthapuram)
E-mail : advsajeer@gmail.com  Mob. 7012156758

The punishments for individuals convicted of rape are inadequate and ultimately fail to deter such heinous crimes. This ongoing indifference has led to a troubling rise in these offenses. To combat this alarming trend, we must decisively enhance the punishment framework established in Section 64 of the BNS 2023.

Very recently, a doctor was gruesomely murdered after committing rape and inflicting bodily injury,especially her private parts, in RG Kar, New Delhi.  The culprit cruelly treated a poor hapless lady by attacking like a mad dog, brutally biting her neck and her body. The reports say that the quantity of sperm recovered from her body signifies the criminals maybe two or more. But later the police concluded the investigation by implicating a single man, alone. 

Days ago, we were all sad and shocked to hear about the Delhi Nirbhaya incident, where a juvenile among the others brutally treated her. Our judicial system “set him at liberty” due to the benefit granted to him under the Juvenile Justice Act, only after giving him a three-year term. These liberal attitudes ignite similar incidents all over the country.

 Recently we heard that a girl’s father and relative brutally raped the sister of a man whom the girl eloped with. The newspapers and media frightens every day and every moment with similar news, and we fear to touch the newspapers that fall on the dawn of the day in our house premises, fearing to see who will be the next today.  

We know Jyoti Singh, a 22 year old physiotherapist intern, who was tortured while traveling with her male friend. There were six others on the bus, including the driver, all of whom raped the woman and beat her friend. She succumbed to her injuries two days later. 

All the accused were arrested and charged with sexual assault and murder. One of the accused, Ram Singh, died in police custody from possible suicide. The rest of the accused went on trial in a fast-track court. All of them, except one Juvenile, were sentenced to death.

The juvenile Mohammed Afroz, who was the most ferocious ‘man’(word supplied instead of Juvenile) who caused gruesome cruelties to her abdomen, intestines, and genitals by using a jack liver. He was convicted of rape and murder and given the maximum sentence of three years imprisonment in a reform facility, as provided in the Juvenile Justice Act.

It is quite unusual to learn about the rehabilitation and mainstreaming efforts for Afroz. Rehabilitation Management Committees were established before his release, and in December 2015, a ‘post-release plan’ was submitted to the Delhi High Court. According to the report, the juvenile had acquired skills in cooking and tailoring while residing in the reform house. It further stated that Afroz would require a tailoring shop, a sewing machine, and other tailoring equipment to support his reintegration. The report recommended a one-time grant of ₹10,000 from the government to assist him initially. The Department of Women and Child Development (WCD) indicated it would provide the funding and arrange the equipment through an NGO. Unfortunately, Afroz’s family had ostracized him due to his crime and refused to accept him back. However, after his release, it was reported that he found employment as a cook.

In Kerala, in the year 2011, Soumya, a 23 year old lady on a passenger Train was brutally murdered and raped by the nomadic Tamilnadu native, Govindachami @ Charley Thomas. He was arrested and underwent trial.In the verdict he was sentenced to death by the Sessions Court and the sentence was confirmed by the Hon’ble High Court, in its 359 page Judgement. But later in appeal the Supreme Court in its full bench decision, set aside murder charges and altered to rigorous imprisonment for seven years under Section 325 IPC and life imprisonment for 376.  It held that: “The death of the deceased was occasioned by a combination of injury no.1 and 2, and complications arising therefrom including aspiration of blood into the air passages, resulting in anoxic brain damage. The same, in the opinion of the doctor, had occurred because the deceased was kept in a supine position for sexual assault. We are of the opinion that the liability of the accused for Injury No.1 would not require a re-determination in view of the evidence. However, so far as Injury No.2 is concerned unless the fall from the train can be ascribed to the accused on the basis of cogent and reliable evidence, meaning thereby, that the accused had pushed the deceased out of the train and the possibility of the deceased herself jumping out of train is ruled out, the liability of the accused for the said injury may not necessarily follow.

On going through the above, it is pertinent to note that the criminals those who are committing brutality against poor and hapless ladies, were provided shelter and rehabilitation by utilizing the public fund. We know that the People are not born criminals; rather, circumstances make them so. But if a criminal became a threat to the public and the lives of poor girls, he must be extinguished, castrated, or branded before the public, for identifying other people about his presence and for deterrence.

If we hadn’t spared him in 2012, we could have saved the lives of hundreds of poor girls across the country.

One year later, before healing the wound of the Delhi incident, in August 2013, a 22 year old photo journalist, who was interning with an English magazine in Mumbai, was gang-raped by five persons, including a juvenile, in the deserted Shakti Mills Compound in south Mumbai. Just after two years, a 71 year old nun was gang-raped by six men in West Bengal. Immediately after one year, a 17 year old Dalit daughter was raped in Bikaner. After one year, in 2018, a shocking event to humanity and human culture, Asifa, an eight year old minor, was brutally raped in Jammu and Kashmir. In Unnao, a 17 year old girl was raped by the lawmaker. There have been incidents of mass rape in Jammu and Kashmir by the armed militants of Islamic militants and Indian armed forces in retaliation.

Why are the vulnerable daughters suffering from such severe conditions? The answer lies in the loopholes within the investigative processes and the scrutiny of the judicial system.

The legal process for punishing a rapist can be quite complicated. The law operates under the principle that an accused person is presumed innocent until proven guilty by a competent court. Unfortunately, this principle is often interpreted in favour of the accused rather than the victim.

A concerning report from the National Crime Records Bureau reveals that in 2022, a total of 31,000 cases were reported in India. Although this represents a slight decrease compared to 2021, it still indicates that culprits are roaming free, looking for their next victims. The police and the law seem to chase after them rather than proactively addressing the issue.

Why does this keep happening day after day? These incidents cannot be considered isolated or remote. According to a report from the Crime Records Bureau, every minute, one girl or woman in India is either raped or abused. This issue is not due to a lack of laws or shortcomings in trained investigators, but rather because of the cumbersome criminal procedures and the adversarial system we have in place.

Let us examine the stand of foreign countries regarding convictions for rape convicts.

In India, the punishment shall be rigorous imprisonment for a term that shall not be less than 10 years but extend to imprisonment for life.

In France, imprisonment for a term that shall not be less than 15 years but extends to 30 years.

In China, castration. In Saudi Arabia, public beheading after administering sedatives.

 In North Korea, they punish the accused by firing at them within 4 days.

Afghans were shot in the head or hanged to death within 4 days from the date of the incident. The death sentence shall be awarded to the culprits.

 Iran was also awarded a death sentence or stoning by the public.

 Israel only awarded a 16-year term, and they included this offense among other sexual offenses.

 America only granted imprisonment for life and, in some cases, for the remainder of the life term of the accused.

 Russia awarded imprisonment for 3 to 20 years depending upon the gravity of the offense.

 Norway granted not less than 4 years but may extend to 20 years. It is intriguing to note that the Norway prison is the nicest in the world.

 On going through the above, it can be seen that most of our neighboring countries are awarding death sentences for the culprits, and castration and stoning are the last methods for their punishments. 

It can be seen that most of our foreign countries awarded death sentences, stoning, and castration; We alone have awarded life imprisonment, but this only happens after four to eight years of judicial scrutiny. During this period, the court often grants bail or parole.It allowing the accused to commit similar crimes again. In some cases, the government provides substantial financial assistance to these accused individuals under the guise of rehabilitation, even when victims receive no compensation whatsoever. This approach encourages young people to commit similar crimes in the future.

To reduce or eliminate these types of atrocities against humanity and to protect the lives of girls who suffer throughout their lives, it is important to revise Sections 63 and 64 of the Bharatiya Nyaya Sanhita, 2023, as follows:

In Explanation 2 of Section 63 of the Sanhita, the words “Consent means an unequivocal, voluntary agreement when the woman, by words, gestures, or any form of verbal or nonverbal communication, communicates willingness to participate in the specific sexual act” are to be omitted. If this explanation persists, the victim must prove that she did not provide any gestures or words to the culprits. This may also create a loophole that allows the culprit to skim over the law.

In the penal provision envisaged in Section 64 (1) of the Sanhita, for the words “punished with rigorous imprisonment for either description for a term which shall not be less than 10 years but which may extend to imprisonment for life, and shall also be liable to fine,” the term “shall be punished with death or with imprisonment for life, and his known movable and immovable properties shall be attached and confiscated. The proceeds of such properties shall be given to the victims” may necessarily be incorporated.    

Section 64(2) of the Sanhita, for the words “shall be punished with rigorous imprison-ment for a term that shall not be less than ten years but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life and shall also be liable to fine,” the words “shall be punished with death, imprisonment for life with castration, and his known movable and immovable properties shall be attached and confiscated. The proceeds of such properties shall be given to the victims“ may necessarily  be incorporated.  

Besides,

In cases of rape, the courts must start a trial within twenty days from the date of taking cognizance. Furthermore, all trials related to rape and assaults on women and children are required to be concluded within three months.

 The trials will be conducted on a daily basis. If unforeseen circumstances happen, the trial exceeds the time limit, it will be completed promptly after such event.

If any court proceedings exceed the stipulated period or if the trial is not completed as stipulated, the responsible Judicial Officer shall undergo compulsory training, to be organized by the Judicial Academy.

After completing the trial within the specified period, a hearing shall be conducted and concluded within three days. The judgment in thesecases must be pronounced within 15 days from the date of reserving orders.

No adjournments will be granted for hearings under any circumstances; the specified time is mandatory and not merely a guideline.

If the appeals are preferred with delay petitions, they should contain adequate explanations. Appeals that do not provide proper explanations shall not be admitted.

Appellate courts are not permitted to issue blanket stay orders for rape cases. A stay may only be granted in matters of exceptional importance, especially those that raise significant questions of law.

The appeal will be heard, and a final decision will be made within one month after both parties appear. In every appeal, the accused shall deposit the entire fine amount before the lower court as a condition precedent.

If any minor commits a crime such as assaulting a woman, participating in gang rape, causing the death of the victim in connection with the act, resulting in the victim being left in a vegetative state, or inflicting serious injuries, that minor will be treated and tried as an adult. They will be tried with other accused after undergoing an ossification test. If the act is proven with solid evidence, then the accused must be castrated and sentenced to death. 

No accused person, involving these cases,  shall be granted bail until the trial is complete. The standard principle that “bail is the rule and jail is the exception” shall not apply in these cases.

“Any police officer who investigates a case and causes evidence to go missing, or who is influenced by another person to intimidate a witness into withholding relevant information, shall face the same penalties as those that could be imposed on the accused.

Furthermore, if any individual in a position of authority within an institution intentionally delays reporting a case of rape involving a woman or child, they will face the same punishment as someone convicted of that offense.”

Implementing these types of penalties may deter potential offenders and reinforce accountability within institutions. This ensures that those responsible for protection and reporting, do not ignore such serious offenses. By establishing clear consequences for negligence, society can foster a culture of responsibility and support for victims seeking justice.

Commission Report and Survey plan is theReal Protractor in a Civil  Litigation

(By Adv.S.Balachandran (Kulasekharam), Thiruvananthapuram)

1) The real fight in a civil case restarts between the plaintiff and defendant when the commission report and survey plan come into picture. Everything was going smoothly without any timelag,till pleadings are over .Framing of issues are consuming much time, may be due to the pressure of work of the Judicial Officers. Reading of Written statement is very important to frame issues. Hence framing of issues are prolonging in the suits, other than money suits. Now a day’s number of money suits is decreasing day by day due to realization of huge court fees at each and every stage of the litigation. Litigants used to opt Section 138 of Negotiable Instruments Act, for vindicating their grievances other than institution of moneysuits. If we go through the reported decisions under the Negotiable Instruments Act, now a days, all the decisions are based on Sections 138,139,141 and 142 of the said act alone.

2) In property dispute cases, after filing the Commission Application, it will take much time to pass an order in it. Normally the prayers in the Commission Application are to measure and demarcate the Plaint schedule property in accordance with the plaint description, based on documents or based on survey plans. The courts usually pass an order like parrot tutored, that Commission Application is allowed. A junior most member of the Bar will be usually appointed as Advocate Commissioner. That Advocate Commissioner may be,for the first time, coming across to read the schedule of property and its description etc., after their college education. Most probably it may be the maiden appointment of that  Advocate as Commissioner.

3) The entire tragedy will start from that point. Almost all the Advocate Commissioners are unaware of the basic principles of Survey. They don’t know anything about the survey.
The courts are not giving any enabling directions to the surveyor or Advocate Commissioner, from which point survey has to be started, how that point has to be ascertained,what are all the properties to be measured to determine the exact boundary ,based on what documents survey has to be done etc etc. Then the surveyor will become the Master of Arts and he will decide from which point, the survey to commence. Usually at that time, if Advocates of the parties are also present in the spot, conflict of starting point of survey will arose and in some of the cases there will occurs cubble between the parties,and assault of Advocate Commissioner and opposite counsel will also be a common phenomena. Then police protection will be ordered .Then the police and surveyor will lead the entire matter.

4) According to the present lie of the Plaint schedule property, most of the survey will be completed, in most of the cases. The surveyor will file the plan stating that Plaint schedule property is having a lesser extent and the remaining property is encroached by the defendant and he fill spot the area of property in the survey plan to be recovered from the defendant to satisfy the area of the Plaint schedule property. The surveyor may be under the impression that, if the plaintiff is having not that much of extent of property in his possession, as covered by his document, the defendant has to supply the same to fill up the deficiency. The Advocate Commissioner used to remain as an onlooker and he/she  has no voice, because she/he is unable to provide any ideas to the surveyor or to lead the surveyor, how to start the survey. The Advocate Commissioner used to prepare reports based on the survey plan, prepared by the surveyor, unknowingly whether the survey plan is correct or not.

5) When the Commission Report and survey plan is produced before the court, the real battle will start for a decade. Then the litigation, will twist either between the plaintiff and survey plan or the defendant and survey plan. The 1^st step is to set aside the survey plan, prior to starting of Evidence .Most of the reported decisions in civil litigations are based on the validity or invalidity of the survey plan ,appointment of second Commissioner etc. in a civil suit.The trial courts and High Courts are spending the valuable times on that point and decisions based on survey plan are in majority, compared to settlement of other issues. The above process will go on years together and will drag the litigation for  decades in the first stage. Then it will be taken up before the High Court, prior to the passing of final Judgments. It will drag years together in the High Court. After the verdict of High Court invoking Article 227, there will not end the matter. The final hearing of the suit is also based on the defects in the Commission Report and plan. The other contentions will become insignificant. In the first Appeal, in the  second appeal and in the special leave petition also, the main contest is with regard to the validity of the survey plan. It will go on for more than three decades. In most of the cases,the plaintiffs will not get any relief during their life time.

6) No deficiency can be attributed to the parties of the suit ,since no  responsibility can be attributed to them in the preparation of report and plan. The report and survey plan is prepared as per the order  of the courts. No trainings are given to the Advocates regarding the basic principles, how to conduct survey. The role of an Advocate Commissioner in the preparation of survey plan is big zero. The surveyors are having qualification of SSLC and a certificate course in survey alone and hence no compliance of legal formalities can be expected from the surveyor, who is responsible for these anomalies. It is, high time to find out a solution to minimize the defects in the Commission Report and plan at the earliest stage.

7) If the following procedures are followed, prior to the appointment of Commissioner and surveyor, large extent of time of the courts, litigations and time of parties can be resolved.

8) Mere passing of an order that Commission Application is allowed and Commissioner and surveyor are appointed in a routine manner is to be deprecated. Prior to allowing survey Commission Application, in a mechanical way, the courts shall call upon the parties to the litigation to give suggestions that, which point to be ascertained first after plotting a fixed point, from which points survey has to be commenced, what are all the properties to be measured to locate the Plaint schedule property, how the Plaint schedule property can be ascertained, what are all the documents to be referred for measuring the property etc.

 9) If there is no consensus between the parties, the Commissioner and surveyor may be directed to furnish two different plans based on contentions of the plaintiff and defendant. Then after considering entire Evidence, the court can accept any one of the plan or with any modification of any of the plans, based on Evidence emerged in the suit. If the courts are giving such specific directions, the Advocate commissioner can give effective directions to comply the above formalities and he/she shall not be a total stranger to the proceedings and he/ she can give directions to the surveyor. Then the challenge against the Commission Report and plan will be minimized and the precious time of the courts and litigants can be saved.In most of the cases, dispute is in connection with a small area of property. Ante mortem of Commission Report and plan is better than post mortem of Commission Report and plan.