FUTURE HOPE: (Above) Ruchika Girhotra is yet to get justice. (Top) Her alleged molester S.P.S. Rathore in Chandigarh

Exactly a year ago, on January 27, 2009, a Chandigarh court sentenced five men to life imprisonment for raping a German tourist. The court gave its verdict within eight working days of the trial. Remarkably, it wasn’t even a fast track court.

“We went about it in a very professional manner. We relied on scientific evidence and solid witnesses to prepare a watertight case. In fact, it was the Chandigarh police that asked a normal court to fast track the case so that it would set an example,” says Madhur Verma, superintendent, city and crime, Chandigarh police. Verma was the supervising officer in the investigation.

However, considering that thousands of cases of rape and molestation languish in Indian courts for years, the Chandigarh case is an exception rather than the rule. The Ruchika Girhotra molestation case — involving S.P.S. Rathore, a former director general of the Haryana police — that has been going on for nearly two decades is a perfect example of the inordinate delays that take place when it comes to resolving such cases.

Following the public uproar in the Girhotra case, the Union law ministry is now proposing a new law to set up special courts to fast track the investigation and trial of such crimes. Called the Sexual Offences (Special Courts) Bill, 2010, the proposed law sets a time limit to the trial, and also makes character evidence illegal. Furthermore, it makes all sexual offences cognisable, empowering the police to arrest an accused without a court warrant.

On the period of the trial, the draft Bill says, “The trial under this Act of any sexual offence shall be concluded as expeditiously as possible and every endeavour shall be made to complete it within six months.”

“It’s a very positive step. I know many cases that have dragged on for years, prompting even the victims to withdraw their complaints. Even the witnesses turn hostile when the trial takes this long. If a time limit is set, everybody involved will act fast and justice will be delivered,” says Verma.

But there are those who doubt the effectiveness of the law given the experience of the fast track courts already in operation. “Currently, the so-called fast track courts take years to give decisions. Some states, like West Bengal, have only one fast track court. It is as good as having none at all,” says Manabendra Mandal, executive director, Socio-legal Aid Research and Training Centre, Calcutta.

What’s more, Mandal is not sure how effective the police will be if asked to solve cases quickly. “The police are neither sensitive enough nor well equipped to solve the cases. For instance, West Bengal has only one forensic laboratory. We cannot expect the district police to present a tight case to the courts,” he says.

The enormity of the problem can be gauged from the fact that West Bengal alone witnessed 4,904 cases of rape and molestation in 2008 (Source: West Bengal Crime Records Bureau).

The Sexual Offences (Special Courts) Bill also proposes amendments to some sections of the Indian Penal Code related to rape and molestation, and to the Indian Evidence Act, 1872. On “unlawful sexual contact”, the Bill calls for the insertion of Section 376E in the IPC. One of the sub-sections under this says, “Whoever, with sexual intent, touches, directly or indirectly, with a part of the body or with an object, any part of the body of another person, not being the spouse of such person, without the consent of such other person, shall be punished with simple imprisonment for a term which may extend to two years or with fine or with both.” This is in sharp contrast to the current law that defines sexual assault as non-consensual penile penetration of the vagina.

The third sub-section, which seems to be there on account of the Girhotra case, says, “Whoever being in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency, touches, directly or indirectly, with sexual intent, with a part of the body or with an object, any part of the body of such young person, shall be punished with imprisonment of either description which may extend to seven years and shall also be liable to fine.”

Of course, the law ministry is still discussing the Bill with the Union home ministry, and if both reach a consensus, the Bill will be presented during the Budget session of Parliament.

While welcoming the law ministry’s move, several women’s organisations have also slammed it for not “doing enough”. Recently a group of women’s organisations, including the Centre for Women’s Development Studies (CWDS), and the All India Democratic Women’s Association (AIDWA) asked the law ministry to make further changes to the Bill before presenting it in Parliament.

In a letter addressed to Union law minister Veerappa Moily, the activists say, “Unless the definitional and substantive aspects of the rape law and associated set of laws... are amended, the proposed law to fast track sexual violence cases will remain historically a hollow gesture.”

“While fast tracking cases is a good step, a patchwork to the rape laws will not do. The government has to bring in comprehensive changes to the laws related to sexual assault. Otherwise women will continue to suffer,” says Ranjana Kumari, director, Centre for Social Research, New Delhi.

“We have serious problem with expressions like ‘outrage of modesty’ and other such terms in our laws. The government has to define sexual assault without any ambiguity,” says Pratiksha Baxi, assistant professor, Centre for Law and Governance, Jawaharlal Nehru University, Delhi.

Character assassination and uncomfortable questioning of the victim in court have been the main weapons that defence lawyers have often resorted to. For instance in the Yad Ram vs the State of Rajasthan case in 2008, the victim was allegedly asked by the defence lawyer to lie on a bench in the trial court to demonstrate the position in which she was raped. To protect the victims from such situations, the Bill proposes amendments to the Indian Evidence Act, 1872.

The new amendment will read, “In a prosecution for an offence under sections 354, 376, 376A, 376B, 376C, 376D, 376E or for attempt to commit any such offence, where the question of consent is in issue, it shall not be permissible to adduce evidence or to put questions in the cross- examination of the victim as to her general immoral character, or as to her previous sexual experience with any person for providing such consent or the quality of consent.”

“The laws are also silent on the protection of victims and witnesses. Many victims like Girhotra commit suicide because of lack of psychological support. It is very important that this aspect is also looked into when implementing this new law,” says Anita Abraham, a Delhi-based lawyer.

According to Kumari, a good beginning for the government would be to read the 172nd Law Commission’s report on rape laws and the Latika Sarkar Committee Report on changes to laws on women.

But there are those who feel that the government should exercise caution before making the laws stringent. “The government should strike a balance. The laws shouldn’t get so stringent and lopsided that people start taking advantage of them and trap innocent people,” says Majeed Memon, the criminal lawyer based in Mumbai.

Still, if the new law does come into effect, it will please most people as it will address the burning issue of molesters getting off scot free all because our legal system is too slow to deliver justice.