‘Appellate court-itis’, a disease that has plagued India. The term was recently used by Justice D.Y. Chandrachud, in a webinar, to refer to the growing trust of people in the appellate judiciary.
This, coupled with the relatively lower rate of disposal of cases in subordinate courts, as compared to appellate courts, compels us to ponder upon efficiency of the lower judiciary.
Apart from data regarding number of cases, appeals and disposals, the problem also concerns the way justice is delivered.
The case of Rishiteswari – as an example for the need to revamp the lower courts – shows that although today we have a dedicated legislative framework in place, the subordinate courts often fail to provide justice. The powers that have now been conferred upon courts through the Prevention of Children from Sexual Offences Act, 2012 (POCSO).
Rishiteswari was a student of Bachelor of Architecture at Acharya Nagarjuna University (ANU) who died by suicide on July 14, 2015. She had been a victim of sexual harassment and ragging. Initially, a case had been filed against three of her seniors who were charged under various sections of IPC, POCSO and Andhra Pradesh Prohibition of Ragging Act. A high-level committee was constituted, headed by retired IAS officer Balasubrahmanyam and comprising four other members. Its findings pointed towards the involvement of some other senior students and accused the principal of not taking action, amounting to ‘illegal omission’.
The case was initially heard by the Special Court established under Section 28(1) of POCSO. This section allows for designating a Sessions Court as a Special Court to hear the matters related to POCSO. Section 32 provides for appointment of a special public prosecutor to deal with only POCSO cases.
Though these courts are equivalent to Sessions Courts for some purposes, they have also been conferred power to take cognisance of such cases upon filing of police reports and have authority similar to that of a magistrate. This special framework has been designed to enable speedy justice.
When India ratified the United Nations Convention on Rights of Children, it assumed the obligation to protect children which was fulfilled when POCSO was passed in 2012. Articles 15 and 39 of the constitution allow and encourage formulation of special legislations in interest of children.
When the Investigation Officer was questioned in the Special Court, his reason for invoking POCSO was disregarded altogether.
The judge appallingly refused to take cognisance of charges under POCSO merely because Rishiteswari died as an adult and had failed to report the matter while she was a minor. The charges were subsequently rejected by the fast track court and revision was filed in the high court. Justice Cheekati Manavendranath Roy termed this act of dismissing charges under POCSO as “non-application of mind” by the Special Court judge, utter disregard of the provisions and “defeating the object of the law”.
Section 19 deals with the principle of locus standi mandating the police to register an FIR even if complainant is not the victim. Section 33 allows the Special Courts to take cognisance of the matter even before the accused is committed to trial. Additionally, Section 29 and 30 provide for presumption of a guilty mind, shifting the burden of proof upon the accused to prove that the accused did not possess the required intention.
Considering these provisions, it is certain that the Special Court judge “haphazardly” reached at an “erroneous” conclusion of refusing to take cognisance on the matter, as stated by high court.
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The court disappointed on two counts. First, it is clearly specified through the letter of the law that the provisions of POCSO can be invoked when victim is a minor. It is nowhere mentioned that age of the victim on the day of filing of the case is to be considered. Secondly, if a prima facie case is being made out, the Special Court is bound to take it into consideration. It is a well settled law that sufficiency of evidence is the matter of trial; it could not arise at the stage of cognisance. How can justice be sought when the courts – the temples of justice – commit such blunders even with a lucid set-up in place?
Though this judgment does not explore any specific strand of law or jurisprudence, it does bring to light an obvious flaw in the judicial system that has fractured its capacity to provide justice for a long time. This was definitely not the first case where lower courts have resorted to flimsy and deplorable reasoning while dismissing cases.
September 16, 1979 was the day when this injustice in courts since 1972 came to light. This was the day when four scholars wrote an open letter to the then Chief Justice of India describing in detail the exploitation faced by an adivasi girl Mathura [the court made no attempts to shield her identity] at the hands of trial court and then even at the Supreme Court.
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The trial court refused to believe the story of the victim and instead accuse her for fabricating the facts with a view to save her “honour”. It said she was “habitual to sex”, an argument that was used to acquit the accused and accuse the victim.
The case of Rameeza Bee is even less heard of. She was raped by four policemen after two of them dragged her into a police station at night. Even though the committee headed by a high court judge observed that there was absolutely no reason to tag her as a prostitute, the sessions judge did just that and went further to argue that the sub-inspector could not have allowed three of his juniors to “share the body of that woman”.
Also, the judge relied upon the findings of a doctor and stated that since there was no evidence to show that semen found on her clothes was due to the gang-rape in question.
Also read: How India Can Get Better at Delivering Justice for Children
In 2013, came another incident. POCSO had been passed just a year before. A 16-year-old girl, who was living with her family in the slums of Navi Mumbai, was subjected to toxic skirmish inside the courtroom that ended in issuing directions to initiate charges of perjury upon her.
The female judge of the Special Court shut her eyes to all the evidence and relied upon the sole fact that the victim admitted that she was lying, while dismissing the charges of rape against the father. In an interview with Sukanya, an independent journalist, she narrated the inhuman treatment by the court. Shockingly, the major witnesses, including her mother, were not examined by the prosecution and the defense freely demeaned her in front of the Special Court judge.
Senior criminal lawyer Rohini Salian has said that courts in a few cases have convicted the accused on the basis of evidence even when the victim had turned hostile. Contrastingly, in this case, the judge by holding the victim guilty of perjury relied upon a provision from the draft bill of POCSO which is absent in the current legislation.
This is certainly not the end of the list. The Supreme Court report of 2019 shows that from January to June 2019, trial courts have decided upon merely 4% of the cases that were registered. The police have filed chargesheets in merely 50% of the cases. A survey by Hindustan Times revealed that out of 663 cases, 357 resulted in acquittal because the victim retracted her statement due to pressure from family or police.
Also read: Odisha Police Sacks Cop Over Conduct in Minor’s Rape Case, Apologises to Survivor
Audrey D’mello, advocate and director of a women’s rights forum in Mumbai, stated that the committee set up for Manodhairya scheme in Maharashtra, regularly engaged in moral policing, like it did once by denying the amount to a 14-year-old victim, terming her abuse, consensual sex. Another report by HAQ shows that special provisions like Section 29 of POCSO are rarely used by Special Courts.
A lower court is a most crucial stage in judiciary. It sets the law in motion by creating a base for the case to build itself. The need for qualified and learned lawyers and judges is the most at this stage of trial. But it appears as if the whole system is arranged upside down.
Today, practicing in lower courts is regarded as less dignified. Yet, until the foundation is strong enough, we can never hope to build a robust structure to achieve justice.
Livie Jain is a second year student of B.A., LL.B.(Honours) at National Law University, Delhi.