An acquittal with no good, but the bad and the ugly
Why in News
- The criminal justice system must observe the basics of a proper investigation, judicial fairness, and the survivor’s rights.
- The recent judgment of a trial court acquitting Tarun Tejpal, a former editor of a newsmagazine, who was charged, in 2013, of having sexually assaulted an employee.
- This case has created a furor and raised many questions about the law.
Key changes
- Back in 2002, based on the recommendations of the 172nd report of the Law Commission of India, two major changes were made in the Evidence Act:
- first, the Act was amended to prohibit the defence counsel from asking questions to the prosecutrix in a rape case about her general character to impeach her credibility.
- Second, the defence was not permitted to put questions to a witness in the cross-examination about the general immoral character of the prosecutrix and adduce evidence.
- Even if it is hypothetically assumed that the survivor had had sexual relations with someone, it does not give any person the license to sexually assault her.
- The Supreme Court of India has repeatedly said that the purpose of crossexamining a survivor of rape is not to humiliate her but to get to the truth of the case. Therefore, questions about the past sexual life of the survivor should not have been permitted to be asked by the defence counsel as they violated the survivor’s right to a fair trial.
- The law does not permit the character assassination of a victim any more.
Stereotypical evaluation
- The conduct of a survivor of sexual assault cannot be cast in a straitjacket formula. Every individual behaves differently under the given circumstances.
- It would be too stereotypical and patriarchal to expect a survivor to be seen traumatised all the time in front of everyone.
- The Supreme Court, in Aparna Bhat and Others. vs the State of Madhya Pradesh & Others. (2021) specifically said that courts should desist from expressing any stereotype opinion, in words spoken during proceedings, or in the course of a judicial order’ about women.
- Stereotyping excludes any individualised consideration of a person’s actual circumstances and their abilities. It affects women’s right to a fair trial. Therefore, the judiciary must be careful not to create inflexible standards based on preconceived notions.
Details and omissions
- Every omission does not amount to a contradiction; omission which by necessary implication leads to conflicting versions between the statements made before the police and the court would amount to contradiction.
- It is trite law that the previous statements of the prosecutrix and witnesses can be used to shake their credibility.
- However, it is quite natural for a survivor to share the incident in different words and details to different individuals.
- She is not expected to share the same graphic details of the sexual assault on her to every individual she meets or wishes to reveal the details to.
- Therefore, if the statement given during the trial is substantially consistent with the statement given to the police and judicial magistrate during the investigation, the difference of details given to other individuals through email or otherwise in the form of written statements, cannot be rejected by terming them as untrustworthy.
- The High Court, therefore, must clarify on this vital question of the law keeping in view the nature of the offence.
Protection of identity
- The Indian Penal Code was amended in 1983 and disclosure of identity of the survivor of rape by anyone was made punishable under a newly added Section 228A.
- The publication of name or any matter which may make known the identity of the survivor since then is thus prohibited.
- The Supreme Court in State of Punjab vs Ramdev Singh (2003) held that the name of the victim should not be mentioned in the judgments, be it of that Court, High Court or lower court, and she should be described as ‘victim’ in the judgment.
- It therefore implies that anything such as the survivor’s husband’s name, her email address, etc which could reveal her identity, should not have been mentioned in the judgment. It is against the spirit of the law.
- Sensitisation is a must. It is true that the investigation must be unbiased, honest, just and in accordance with the law.
- The entire emphasis on a fair investigation has to be to bring out the truth of the case before the court. However, some lapses in investigation and ignorance about technical terms such as ‘hash value’ with regard to electronic evidence, should not lead to a total rejection of the prosecution case.
Conclusion
- Many amendments have been made in the criminal laws since 1983 with regard to crimes against women.
- The police must pull up their socks to improve investigation skills, and the application of the law should not elude justice due to a lack of proper sensitization among other stakeholders in the criminal justice system.
Where the crucial G7 summit failed
Why in News
- The much-awaited G7 communique from Carbis Bay is long on rhetoric and short on substance.
Failure of G-7 Summit 2021
- The communique itself runs into 70 paragraphs, covering, as it were, the three Cs: Covid-19, climate and, of course, China.
- For good measure, it also provides important clues into the thinking of G7 countries on issues such as trade, democracy, human rights, multilateralism and post-Covid-19 global economic recovery.
- On Covid-19, G7 is right to focus on vaccinating the world. After all, it is now conventional wisdom that no one is safe until everyone is safe.
- The trouble is that even assuming that can eventually take care of themselves (itself a tall order), at least three billion people in the rest all G7 countries, India and China of the world remain to be vaccinated. By providing for a paltry one billion vaccine doses over the next year, G7 has effectively indicated that even by the end of 2022, not everyone on this planet will be vaccinated.
- More importantly, G7 ignores the three immediate actions recommended by the Report of the Independent Panel on Pandemic Preparedness and Response led by Helen Clark and Ellen Sirleaf, published in May. The three actions included:
- One billion vaccine doses by September 2021 and two billion doses by end of 2022;
- Waiving intellectual property rights (IPR) if voluntary action does not occur quickly; and lastly,
- Committing 60% of the $19 billion required for Access to Covid-19 Tools (Act) Accelerator in 2021 for vaccines, therapeutics, diagnostics and strengthening of health systems.
- G7 falls short significantly on all three counts. On climate, the question before the Cornwall Summit was not whether G7 countries would commit to net-zero emissions by 2050. That was the basic minimum that they were expected to do, and which they have done.
- The real question related to climate finance — how will the world’s richest countries meet their Paris Accord commitment of $100 billion every year to finance the energy transition in developing and least developed countries? Here again, the communique comes up with the vaguest of language, referring to increasing and improving climate finance to 2025 and reaffirming the developed countries’ goal to mobilise $100 billion.
- China gets a full paragraph by way of attention. While saying they wish to cooperate with China on issues such as climate, G7 countries call on it to respect human rights in Xinjiang and autonomy for Hong Kong.
- Taiwan gets a mention, perhaps for the first time, with G7 countries underscoring the importance of peace and stability across the Taiwan Strait.
- This is certain to roil the Chinese. G7, it must be said, has made a valiant attempt to counter the Belt Road Initiative with its Build Back Better for the World (B3W) plan that aims to orient development finance towards resilient infrastructure, health systems, digital solutions and advancing gender equality and education.
- On the issue of gender equality, a target has been set for getting 40 million more girls into education with funding of $2.75 billion for the Global Partnership for Education.
- The biggest signal for China is perhaps the “Open Societies Statement” signed by G7 and guest countries comprising India, South Korea, Australia and South Africa.
- The statement spells out the unconditional commitment of these countries to human rights for all, both online and offline, democracy, social inclusion, gender equality, freedom of expression and rule of law.
How should India read the G7 Summit?
- First, Prime Minister (PM) of India stated that India is a natural ally of G7, with an emphasis on its civilisational commitment to democracy, freedom of thought and liberty, will be welcomed by India’s friends all over the world.
- Second, on climate finance, India has a mountain to climb. India will come under pressure at the COP 26 meeting in Glasgow to commit to net-zero emissions by 2050.
- The communique appears to endorse the idea of “carbon leakage” and hence gives implicit approval to the European Union’s idea of a carbon border tax.
- Finally, the communique harps on “fair trade” much more than it does on “free trade”. Fair trade, by definition, stresses labour and environmental standards and the communique says as much.
- Similarly, G7 also endorses plurilateral initiatives at the World Trade Organization (WTO), something India hitherto has studiously avoided.
- Things will come to a head at the 12th Ministerial Conference of the WTO in December.