Written by Ashwina Yadav of University Five year law college, UOR Jaipur
The preamble of the Constitution of India aims at securing equality and justice, and the directive principles of state policy aims at providing free legal aid, preventing injustice and welfare of the citizens of India. Criminal justice, one of the aspects of justice, means fair and impartial delivery of justice to the victims.
This paper analyses the challenges and issues faced by the women before and during access to criminal justice. In contemporary India, women are the victims of crimes, like rape, harassment at workplace, dowry demands and domestic violence. Women not only face injustice in the society, even in the 21st century we are taking females equal to males in every walk of life still we are not untouched by the molestation and harassment faced by women in judicial custody during the trial in court and after final verdict of court while facing punishment in the gaol. In this era of worshipping Kali and Durga in the homes, woman faces torment, aggressive pressure and intimidation by the man who is her consort, to whom she dedicated herself and surrendered her security.
Indian society needs to reshape women’s role by proper law enforcement and create awareness programmes that ensures women’s rights and access to criminal justice to them.
Rightly did Swami Vivekananda say, ‘Just as a bird cannot fly with one wing only, a Nation cannot march forward if the women are left behind’. Men and women are the two holes of a perfect whole.
Criminal justice is the conviction of justice to those who have committed crimes. It is the system of enforcement of law which tend to attain control of crime, reduction of crime, and the enforcement of penalties for the exercise of crimes, including agencies like police, lawyers, courts etc.
India is a country of different religion, gender, flourishing culture, climate conditions, but its shine is diminishing due to the inefficient administration of criminal justice system. So as to restore the basic principle of justice and equality of the constitution of India, there is need to review and reform the criminal justice system for access to justice.
CHALLENGES FACED BY WOMEN FOR ACCESS TO CRIMINAL JUSTICE
A fair and procedural system is fundamental principle of criminal justice system. The main objective of criminal justice system is to sanction the criminal and to check that the trial is conducted efficiently to punish the criminal and to provide remedy to the victim.
There are various challenges faced by women for access to criminal justice-
- Women are disgraced by the society, even by own family members.
A 2012 UNICEF study found more than half of Indian adolescent males think it is justifiable to beat a wife under certain circumstances.
Many parents treat their daughters and their sons discriminatingly, even discriminated in the terms of providing food to daughter and their sons, also not educate them in the same manner with the boys, and they are only raised or grown to become someone asset or the one who acts as puppet, act as discretion and follow order of her dictator husband. In Indian society girls are seen as financial liability as they bring hefty dowries along with them, after they get married. And after marriage they are scolded and treated like animals. Women and girls who survive rape and other sexual violence often suffer humiliation at hospitals and in their neighbourhood.
In our society Rape is still constructed as women’s shame and there are so many social barriers like fear of being stigmatized, shamed, retribution from family and friends, for women to talk about it.
- Improper Enactment and Enforcement of Legislations.
In India, it takes so long to pass a bill and to make it a law. Bills remains pending in the house of the parliament of India (Lok Sabha & Rajya Sabha). And if it gets approval from lower house then it gets stuck to the upper house of the parliament. This is how it takes many years to transform a bill into an Act.
The case of triple talaq bill, a bill to criminalise Muslim instant divorce practice of ‘triple talaq’, which was passed by Lok Sabha on December 27 last year is still stuck in Rajya Sabha in face of a combined opposition.
After proper enactment the Act and legislations are not enforced by the Executive and Judiciary of India and the provisions of the Indian constitution are not enforced properly to provide criminal justice to women. According to national crime research bureau 2016, 57933 cases of violence against women, 83285 rape cases and 95097 cases of domestic violence were registered in different police stations, 10453 women were assassinated for dowry.
- Improper functioning of judiciary
Judiciary plays a vital role in implementation of rule of law in every democracy. The primary and most important duty of courts is to protect and enforce human rights as well as provide remedy to the victims of the crimes. The present judicial system gives more attention to the rights of the accused than the victim comparatively.
A speedy trial is a constitutional right of every accused under article 32 of Indian Constitution. If accused is guilty, he is to be punished and any delay to punish the guilty would be ineffective in controlling the crime as well as in the investigation of crimes or the haphazard way in which the cases are investigated, greatly contribute to the delay in dispensing prompt justice. In India only about 16 out of 100 people booked for criminal offences are finally convicted.
In the functioning of the Indian judiciary system, the substantial issues like the quality of justice and accountability are not known to the citizens properly. Right to know is a part of freedom of speech and expression, as provided by the Constitution, however, the present system violates this fundamental right.
There is not sufficient no of judges in the courts. One of the primary issues with the Indian judicial system is the pendency of cases. There are many judges who themselves disqualify from the advancing of the criminal justice as they are having fashioned on old justice attitude, and also, they believe in the justice according to the strict interpretation of the law.
- Poor Investigation of Police
Investigation is one of the significant parts of Criminal Justice system and it is the primary phase of accessing to criminal justice. An efficient and timey investigation is inevitable. In India due to the inefficient opaque and delayed investigation innocent has to suffer and the culprit gets the benefit of it.
The supreme court in Baldev Singh vs State Of Punjab stated that the statement recorded under Section 161 of the Cr.PC shall not be used for any purpose except to contradict a witness in the manner prescribed in the proviso to Section 162 (1) and that the first information report is not a substantial piece of evidence.
Scientific methods of collecting evidences and conventional methods of investigation are not used by police in India. Generally, they do not record the statement of witnesses and they write their own statement (Section 161 of Cr. PC). When investigating officer fails to find sufficient true evidences, they try to include false evidences. Investigating officers do not follow the legislative provisions of Cr. PC and do not respect the procedure established by law and by using barbaric and torture methods are used to extract information from accused and in many cases from innocent suspicious person.
women and girls who survive rape and other sexual violence are humiliated at police stations and hospitals. Police are frequently unwilling to register their complaints, victims and witnesses receive little protection.
Human Rights Watch found that police did not always file a First Information Report (FIR), the first step to initiating a police investigation, especially if the victim was from an economically or socially marginalized community. In several cases, the police resisted filing the FIR or pressurize the victim’s family to settle or compromise, particularly if the accused was from a powerful family or community.
- Threat from the side of Offenders
Parents said they feared for their daughters’ safety after filing complaints because the accused received bail easily and then made threats. Police in Lalitpur district in Uttar Pradesh state refused to accept 22-year-old Barkha’s complaint of kidnapping and rape against three men who had attacked her and her husband in their home on January 30, 2016. Barkha and her husband had to flee the village and move hundreds of miles away after repeated threats and harassment from the accused and others in the village.
Kajal, 23, said she and her father were detained, threatened, and beaten up after they filed a complaint of gang rape in Neemuch district in Madhya Pradesh on September 14, 2015.
REFORMS FOR PROPER ACCESS TO CRIMINAL JUSTICE
There is need to create legal awareness programme to inform people about the laws of their benefit so that the moral of the victims of violence will soar and they will get courage to fight against violence. Awareness programs such as Road shows, posters etc. will bring awareness in the society, so that the cases of violence may reduce in number. Women will be cautious towards their legal rights through legal awareness camp, after that they can combated torture and violence against women will be eliminated.
In order to deal with the pendency of cases it is necessary that the courts are open throughout the year and the strength of the judiciary should be increased. In the era of modernization, the court should not be left behind. They need to be fully digitized and a proper infrastructure should be built to provide easy access. There is need to introduce penal of judges, particularly for providing justice to women against heinous crimes at state and central level. These courts were established for expeditious disposal of long pending cases in sessions courts and other courts. The Indian judicial system needs to let go of archaic laws and focus on taking consideration of the present social condition while giving a judgment. The judges should have clear instruction about the kind of cases they can accept in the court. There is need of the judges that they should keep more proactive role in the administrative of the justice. There is need of periodical inspection of Courts. The laws need to be amended timely dependent on the requirements of the society by the parliament. There should be a strong witness protection mechanism. Witnesses should be treated with dignity. The higher courts should have a separate criminal division consisting of judges who have specialised in criminal law. Protection of the witness is the duty of the state and when state fails to protect a witness. There is need to reduce the political influence because, the police Act, 1861 vests the superintendence of the police directly in the hands of the political executive.
CONCLUSION The prominent legislations are not able to provide fair and impartial justice to women in this patriarchal society. Based on the recent data analysis, around 40 complaints of domestic violence, 10 rape cases, 2 assassination cases for dowry are registered in police stations every 24 hours. Judiciary is not able to provide proper justice due to lack of proceedings and improper implementations of laws and judgements. The patricentric attitude of Indians, lack of economic power & jobs, and deprival of education have made women ignorant about their rights, that leads to generate seeds of violence against women.
 AIR 1991 SC 31.
Image courtesy: The Statesmen