Specialization as an Instrument of Normative Change
Arguably, the fast-track courts influence norms simply by existing because they demonstrate state action to address escalating sexual violence against women. Similarly, the passage of stronger legislation also influences norms over time. Combining stronger laws with more effective enforcement is more likely to destabilize the socio-cultural norms that generate sexual violence. However, normative change is notoriously sluggish and is even slower than the lamented pace of criminal trials. Moreover, the fast-track courts are not explicitly supported by national legislation, and normative change is not an explicit objective of the fast-track court system. Without a normative commitment, fast-track courts risk perpetuating--within the very system designed to combat gender-based violence--the same harmful attitudes and norms that pervade society and cause sexual violence against women to begin with.
Although commentators have lauded the Indian High Courts and Supreme Court for their progressive stances towards women's rights, most of India's population only has access to the lower tier of the judiciary. (138) The lower tier courts, such as district and sub-district courts, have overwhelming dockets and inadequate staffing, and are both the first and last resort for most Indians. (139) When sexual assault cases are heard before judges in these courts, the results can be a mixed bag. Well-meaning jurists will attempt to rule, not according to the law and constitutional mandates, but rather in accordance with their perception of prevalent social norms. (140) In contrast, the specialized nature of fast-track courts allow judicial officers and court staff to gain expertise in adjudicating gender-based sexual crimes. The following example demonstrates the importance of training to avoid well-meaning adjudicators from making heavily biased decisions in sexual violence cases.
The Indian judiciary played a key role in the reform of the legal rule that required corroboration of a sexual assault victim's testimony. The basis for the judiciary's activism was the belief that
Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World. It is wholly unnecessary to import the said concept on a turn-key basis and to transplate [sic] it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society, and its profile. (141) In other words, it was inconceivable that an Indian woman would level a false accusation of sexual assault or rape because of the pervasive taboo of any topic dealing with sexuality in Indian society. In more detail, the court listed the many reasons why an Indian woman would be reluctant to bring a charge of sexual assault, much less fabricate a false one:
(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 ostracised 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 and 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 parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12 [sic] 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. (142)
Even though the judiciary's effort to eliminate the corroboration requirement was beneficial to victims of sexual crime, the logic underlying the reform underscored stereotyped notions of femininity.
Another example of judicial initiative that is indicative of societal bias involves a case where a sixteen-year-old girl was raped by a neighbor's son who was then arrested. (143) Subsequently, the parents of both arranged for them to be wed. (144) When bail was requested on the grounds that the young suspect had agreed to marry the girl he raped, the judge realized that the girl would not proceed with the case against her new fiance and decided to grant bail. In so doing, the Judge "warned the boy that ... if he doesn't keep his promise and marry the girl, the court will take action." (145) Critics of such adjudication have said that
Instead of promoting a marital union between the rapist and the victim, the judge should have educated the girl and her family about the criminality of this behavior. He ought to have been at the forefront of protecting the girl's interests and her rights, and should have had the perpetrator arrested and indicted on criminal charges of sexual assault. The judge's actions of encouraging and endorsing a marriage between the two, taken in the name of harmonizing a 'social situation,' only reifies norms of inequality and perpetuates existing discrimination, sexism, and sexual violence. (146) The fast-track courts may mitigate some of the harm done by untrained, though well-meaning, lower court judges by removing gender-based violence cases from the general pool.
Judicial attitudes toward rape reveal that judges conceptualize rape in the same way as the society in which they dwell,
not as a violation of an individual woman's right to bodily autonomy, but rather, in a more traditional and patriarchal discourse, as a violation of a woman's honor. This honor is in turn closely associated with a family's honor, and the honor of the broader community. (147) For instance, in Jugendra Singh v. State of U.P., the Indian Supreme Court reasoned that, "an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one's physical frame is his or her temple. No one has any right of encroachment." (148) Such rhetoric illustrates a regime in which women are not autonomous and where their worth is defined exclusively vis-a-vis their role as wives, mothers, sisters and daughters. Women enjoy basic human rights to the extent that their male family members do. To shed these biases and attitudes, which undermine the goal of empowering and rehabilitating victims, proper training is essential.
In order to achieve meaningful success in the long-term, fast-track courts for sexual violence must issue decisions that espouse the right reasoning and rhetoric; otherwise they risk falling prey to the same weaknesses and prejudices that create sexual violence in the first place. The conclusions and recommendations section of the Justice Verma Report states:
2. Speedy justice is not merely an aspect of the right to life with dignity, but is essential for efficacy of the law and its desired impact, as well as for prevention of its violation.
3. Available personnel of the judiciary and the infrastructure, with a few systemic changes can, at least, reduce half the burden of arrears in courts contributing to delays in enforcing the law of the land. Judge strength can be increased in phases without diluting their quality. Our suggestion of eminent retired judges being appointed as ad hoc judges will solve this problem.
4. More effective control of the subordinate judiciary by the responsibility vested in the High Courts would ensure improved performance of the subordinate judiciary, which is the cutting edge of the justice delivery system. The High Courts have the pivotal role in the administration of justice by virtue of Article 235 of the Constitution. They have to lead by practice in addition to precept. The restatement of values of judicial life is a charter of faith for every judicial functionary at all levels.
9. Practically every serious breach of the rule of law can be traced to the failure of performance by the persons responsible for its implementation. The undisputed facts in public knowledge relating to the Delhi gang rape of December 16, 2012 unmistakably disclose the failure of many public functionaries responsible for traffic regulation, maintenance of law and order and, more importantly, their low and skewed priority of dealing with complaints of sexual assault. (149)
Nevertheless, the initial results of the fast-track courts suggest that the Justice Verma Report's recommendations were only adopted superficially (if at all) and out of context. (150) The problem with staffing fast-track courts with retired judges, for example, is that these judges lack gender-sensitivity training, and are unfamiliar with the appropriate approach to sexual assault trials that would ensure the wellbeing of victims in such trials. In emphasizing the judiciary's inclination to issue harsh sentencing against defendants convicted of sexual crimes, the report indirectly draws attention to several judicial...
Speeding up sexual assault trials: a constructive critique of India's fast-track courts.
|Position:||III. New-Era of Fast-Track Courts B. Specialization as an Instrument of Normative Change through V. Conclusion, with footnotes, p. 85-109|
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