Supreme Court initiates review of criminal justice system for sexual offences: In Re: Assessment of Criminal Justice System (18 December 2019)

Introduction

Date of the Judgment: 18 December 2019

Citation: SMW (CRL.) No(s).04 OF 2019

Judges: S.A. Bobde, CJI, B.R. Gavai, J., Surya Kant, J.

Is the criminal justice system effectively addressing sexual offenses despite legislative amendments? The Supreme Court of India, deeply concerned by the persistent high rates of sexual crimes and delays in justice, has initiated a suo motu review of the criminal justice system’s response to sexual offenses. This action comes in the wake of public outcry and a recognition that despite legal reforms, the desired outcomes are not being achieved. The Court seeks to assess the implementation of criminal law provisions related to rape and other sexual offenses, aiming to make the system more responsive and efficacious.

The bench comprises of Chief Justice S.A. Bobde and Justices B.R. Gavai and Surya Kant. The order was authored by the bench.

Case Background

The Supreme Court took suo motu cognizance of the issue due to the alarming statistics of sexual offenses in India, despite amendments in criminal law after the Nirbhaya case. The court noted that the number of rape cases registered in India was 32,559 in 2017, according to the National Crime Records Bureau. The court also observed that delays in these cases have caused public unrest and anxiety.

Timeline

Legal Framework

The Supreme Court is examining the implementation of several key legal provisions:

• Section 154 of the Cr.P.C.: This section deals with information in cognizable cases and the registration of First Information Reports (FIRs). The first proviso to sub-section (1) of Section 154, as amended in 2013 and 2018, mandates that in cases of rape and sexual offenses, the FIR must be registered by a woman police officer or any woman officer. If the victim is mentally or physically disabled, the FIR must be recorded at their residence or a convenient place of their choice, in the presence of a special educator or interpreter, and may be videographed. The police officer is also required to have the victim’s statement recorded by a Judicial Magistrate under Section 164 of the Cr.P.C. as soon as possible.
  
  “Section 154 of the Cr.P.C. provides about the information in cognizable cases and in effect registration of First Information Reports.”
• Section 166A of the Indian Penal Code (IPC): This provision, introduced by the Amendment Act of 2013, makes it a punishable offense for a public servant to fail to record information about sexual offenses as prescribed under Section 154(1) of the Cr.P.C.
  
  “Section 166A made the failure of a public servant to record any information of such offences, as prescribed, under sub-Section 1 of Section 154 of the Cr.P.C., a punishable offence”
• Section 357C of the Cr.P.C.: This section, introduced by the Amendment Acts of 2013 and 2018, mandates that all medical institutions, both public and private, provide free medical treatment to victims of sexual offenses and inform the police of such incidents. Failure to comply is punishable under Section 166B of the IPC.
  
  “Section 357C of Cr.P.C. has sought to fix liability on medical institutions, both public or private to provide medical treatment free of cost to the victims of such offences as prescribed, together with a duty to inform the police of such incident.”
• Section 166B of the Indian Penal Code (IPC): This section makes failure to comply with the provisions of Section 357C of Cr.P.C. a punishable offense.
• Section 164A of the Cr.P.C.: This provision, inserted by the Amendment Act of 2013, outlines the manner of medical examination and guidelines for preparing medical reports in cases of sexual assault.
  
  “Section 164A in this regard, which provides for the manner of medical examination as well as the guidelines for preparation of medical report.”
• Section 53A of the Indian Evidence Act, 1872: This section, inserted by the Amendment Act of 2013, states that the victim’s character or previous sexual experience is irrelevant to the issue of consent.
  
  “the evidence of character of the victim and of such person’s previous sexual experience with any persons shall not be relevant on the issue of such consent or the quality of consent.”
• Section 53A of the Cr.P.C.: This section provides for the timely examination of the accused and guidance for the preparation of medical reports.
• Section 173(1A) of the Cr.P.C.: This section mandates that investigations in cases of offences under Sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, or 376E of the IPC must be completed within two months from the date of recording the information by the police.
• Section 164(5A) of the Cr.P.C.: This provision deals with the recording of the victim’s statement by the Court.
• Section 119 of the Indian Evidence Act, 1872: This section provides for the assistance of an interpreter or special educator in recording the statement of a witness unable to speak but capable of giving evidence in another manner, and mandates that such statements be videographed.
• Section 26(a)(iii) of the Cr.P.C.: This section provides for the trial of sexual offences to be conducted by a court presided over by a woman judge, as far as practicable.
• Section 327(2) of the Cr.P.C.: This section mandates that in camera trials be conducted, as far as practicable, by a woman Judge or Magistrate.
• Section 309(1) of the Cr.P.C.: This section mandates that the inquiry or trial be completed within two months from the date of filing the charge-sheet.
• Section 230 of the Cr.P.C.: This section deals with the preparation of a trial program.
• Section 273 of the Cr.P.C.: This section mandates that the victim should not be confronted by the accused during the trial.
• Section 357A(2) of the Cr.P.C.: This section provides for the award of compensation to victims.

Arguments

The Supreme Court, in its suo motu cognizance, has raised several critical questions and concerns regarding the implementation of laws related to sexual offenses. These concerns can be categorized into the following main submissions:

• Registration of FIRs and Investigation
  • Whether all police stations have a woman police officer to record information from victims of sexual offenses, as mandated by Section 154 of the Cr.P.C.?
  • If the place of the offense is outside a police station’s jurisdiction, whether a zero FIR is being recorded?
  • Whether provisions exist for recording FIRs at the residence of a victim who is mentally or physically disabled, and whether special educators or interpreters are available?
  • Whether police departments have issued circulars for videography of statements and their storage?
  • Whether states have issued Standard Operating Procedures (SOPs) for responding to cases of rape and similar offenses?
  • Whether investigations are being completed within two months as mandated by Section 173(1A) of the Cr.P.C.?
  • Whether sufficient women police officers are available to investigate sexual offenses?
• Action against Public Servants
  • Whether cases have been registered under Section 166A of the IPC against public servants for failing to record information of sexual offenses?
  • Is there a mechanism to complain about non-recording of information, other than at the concerned police station?
• Medical Treatment and Examination
  • Whether advisories or guidelines have been issued to hospitals and medical centers regarding free treatment for victims of sexual offenses, as per Section 357C of the Cr.P.C.?
  • Whether cases have been registered under Section 166B of the IPC for failure to provide free medical treatment?
  • Whether medical opinions are being given in compliance with Section 164A of the Cr.P.C., and in line with the current definition of rape under Section 375 of the IPC?
  • Whether states have adopted the Ministry of Health and Family Welfare’s guidelines or prepared their own?
  • Whether medico-forensic kits are available at all government and local authority hospitals/health centers?
  • Whether the “two-finger test” has been discontinued, and whether medical experts have stopped giving opinions on the victim’s previous sexual experience?
  • Whether lady medical practitioners are available at district and sub-divisional headquarters to conduct medical examinations of victims?
• Forensic Examination and Reporting
  • Whether SOPs or protocols exist for taking samples for forensic DNA, odontology, and other tests?
  • Whether there are adequate forensic laboratories at the division level for DNA and odontology analysis?
  • Whether the Central Government has notified sufficient government scientific experts under Section 293 of the Cr.P.C.?
• Court Proceedings and Trial
  • Whether police are taking victims for recording statements as soon as the offense is brought to their notice?
  • Whether Magistrate Courts and trial courts have interpreters or special educators, and facilities for videography of statements?
  • Whether trials are being conducted by courts presided over by women judges, as far as practicable, as per Section 26(a)(iii) of the Cr.P.C. and Section 327(2) of the Cr.P.C.?
  • Whether sufficient lady judges are available to preside over courts dealing with sexual offenses?
  • Whether courts have the infrastructure for in-camera trials?
  • Whether trials are being completed within two months from the date of filing the charge-sheet, as per Section 309 of the Cr.P.C., and if not, what are the reasons for the delay?
  • Whether sufficient special courts have been established for rape and sexual offense cases?
  • Whether trial courts are preparing case calendars as per the guidelines in State of Kerala v. Rasheed, AIR 2019 SC 721, and ensuring witness attendance?
  • Whether Bar Councils or Associations have issued guidelines for advocates to assist in completing trials within the stipulated period?
  • Whether special exclusive permanent trial courts have been created to deal with cases relating to rape and sexual assaults?
  • Whether any High Court has constituted a special bench for expeditious hearing of appeals in these cases?
• Victim and Witness Protection
  • Whether a policy of victim/witness protection is in place and implemented?
  • Whether police protection is being provided to victims during investigation and trial?
  • Whether there are special waiting rooms for victims/witnesses in court premises?
  • Whether trial courts are ensuring that victims are not confronted by the accused during trial, as mandated by Section 273 of the Cr.P.C.?
• Victim Compensation and Rehabilitation
  • Whether courts are recommending the District Legal Service Authority or the State Legal Service Authority for compensation in appropriate cases, as per Section 357A(2) of the Cr.P.C.?
  • Whether interim or final compensation is being provided to victims in a timely manner?
  • Whether the 2018 Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes or a suitably amended scheme has been implemented?
  • Whether the SLSA or NLSA has formulated schemes for social, medical, and economic rehabilitation of victims?
  • Whether states have prepared policies for counseling, medical, social, and economic rehabilitation of victims?
  • Whether counseling/rehabilitation centers exist for victims of rape?
• Utilization of Nirbhaya Fund
  • How has the Nirbhaya Fund been utilized by the Central or State Governments for its intended purposes?

Submissions

Issues Framed by the Supreme Court

The Supreme Court has framed the following issues for consideration:

1. Whether all the Police Stations have a woman police officer or woman officer to record the information of the victim?
2. In case, an information relating to offence of rape received at a Police Station, reveals that the place of commission of the offence is beyond its territorial jurisdiction, whether in such cases FIR without crime number are being recorded?
3. Whether provisions are available for recording of first information by a woman police officer or a woman officer at the residence of the victim or any other place of choice of such person in case the victim is temporarily or permanently mentally or physically disabled?
4. Whether all the District Police Units have the details of special educator or an interpreter in case of a mentally or physically disabled victim?
5. Whether the police department of states or union territories have issued any circulars to make provision of videography of the recording of statements and depository of the same?
6. Whether any state has published guidelines in the shape of Standard Operating Procedure (SOP) to be followed for responding after receipt of the information relating to case of rape and similar offences?
7. Whether any case has been registered under the Section 166A of IPC against any public servant?
8. Whether there is any mechanism in place to complain about the non-recording of information by the officer giving cause to offence under Section 166A with any other institution/office, other than the concerned police station?
9. Whether any advisory or guidelines have been issued by the authorities to all the hospitals and medical centers in this regard?
10. Whether any case has been registered against any person under Section 166B of IPC?
11. Whether the Medical Opinion in the cases relating to rape and similar offences is being given in compliance with the mandate of Section 164A of Cr.P.C.?
12. Whether the Medical Opinion in the cases relating to rape and similar offences is being given in tune with definition of rape under Section 375 of IPC as it stands today?
13. Whether the states have adopted the Guidelines & Protocols of The Ministry of Health and Family Welfare, Government of India or have they prepared their own Guidelines & Protocols?
14. Whether requisite Medico-forensic kit are available with all the hospitals/health centers run by the Government or by local authorities?
15. Whether the medical experts have done away with the Per-Vaginum examination commonly referred to as ‘Two-finger test’ and whether any directions have been issued by the states in this regard?
16. Whether medical experts have done away with the practice of giving opinion on the previous sexual experience of the victim or any directions have been issued by the states in this regard?
17. Whether lady medical practitioners, if mandated, are available at all district and sub-divisional headquarters to draw up the medical examination report of the victim?
18. Whether there is any Standard Operating Procedure (SOP) or Protocol for taking samples for Forensic DNA, Forensic odontology and other forensics for Medical Practitioners?
19. Whether there are adequate number of equipped Forensic Laboratories at least one at every Division Level to conduct forensic DNA and Forensic odontology analysis regionally?
20. Subject to availability, whether Central Government has notified sufficient number of Government scientific expert other than already specified under Section 293 of Cr.P.C.?
21. Whether police is completing the investigation and submitting the final report within a period of two months from the date of recording of information of the offence and if no, reasons for delay?
22. Whether sufficient number of women police officers are available to conduct investigation into the offences relating to rape and other sexual offences?
23. Whether the police is taking the victim for recording of the statements as soon as the commission of the offence is brought to the notice of police?
24. Whether the Magistrate Courts or the trial courts have the availability of the interpreter or special educator in each Districts?
25. Whether the Magistrate Courts or the trial Courts have the facility of videography of the statements and depository of the same in the Courts?
26. Whether trial of cases relating to rape are being conducted by Courts presided over by a woman?
27. Whether sufficient number of lady judges are available to preside over the Courts dealing with sexual offences and rape?
28. Whether all courts holding trial of cases relating to offence of rape have requisite infrastructure and are conducting in camera trial?
29. Whether the trial relating to cases of rape is being completed within a period of two months from the date of filing of charge-sheet, if not, the reasons for the delay?
30. Whether sufficient number of special Courts have been established to deal exclusively with the cases of rape and other sexual offences?
31. Whether case-calendar as envisaged in the Rasheed case is being prepared by the Trial Courts keeping in mind the time line of two months mandated by Section 309 of Cr.P.C.?
32. Whether the attendance of the witnesses is being ensured by the Prosecution to ensure the examination of witnesses on the fixed dates?
33. Whether any guidelines have been issued by Bar Councils or Associations urging the Advocates to assist the Court in completion of trial within the stipulated period?
34. Whether special exclusive permanent trial courts have been created in the state to deal with cases relating to rape and sexual assaults?
35. Whether any High Court has constituted Special Bench for expeditious hearing of appeal in these cases?
36. Whether any policy of victim/witness protection in the cases relating to rape is framed and implemented?
37. Whether police protection is being provided to the victim during investigation and trial of the offence?
38. Whether there are special waiting room in the Court premises for victim/witnesses of cases relating to offence rape?
39. Whether the trial Courts have taken appropriate measures to ensure that victim woman is not confronted by the accused during the trial as mandated by Section 273 Cr.P.C.?
40. Whether Courts are recommending the District Legal Service Authority or the State Legal Service Authority for compensation in appropriate cases?
41. Whether the amount of interim or final compensation is being provided to the victims in time bound manner?
42. Whether the above-mentioned Scheme of 2018 or suitably amended Scheme, has been implemented by the states for rehabilitation of victims of rape?
43. Whether the SLSA or NLSA has formulated any scheme for social, medical and economic rehabilitation of the victim?
44. Whether any state has prepared a policy with regard to the counselling of the victim and medical, social and in some cases, economic rehabilitation of the victim?
45. Whether there are any counselling/rehabilitation centres in existence for the victims of rape?
46. Utilization of the Nirbhaya Fund by Central or State Government(s) for the purposes envisioned?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Conclusion

The Supreme Court’s suo motu cognizance of the issue reflects a deep concern over the effectiveness of the criminal justice system in addressing sexual offenses. The Court’s detailed examination of various legal provisions and their implementation underscores a commitment to ensuring that the legislative intent behind the amendments is realized in practice. By seeking status reports on various aspects of the system, the Court aims to identify gaps and shortcomings and to take necessary corrective measures. The Court’s focus on victim protection, timely justice, and rehabilitation highlights a holistic approach to addressing the complex issue of sexual violence. The detailed issues framed by the Court indicate a thorough and comprehensive review, which is expected to lead to significant improvements in the criminal justice system’s response to sexual offenses.

The Supreme Court has directed the Registrar General of each High Court to provide a status report on the issues framed by the Court. The Court will then decide on further action.

Flowchart of Criminal Justice Process