Last month's rape
of a physiotherapy student on a moving bus and her death on December 28
in hospital triggered a national debate about how to better protect
women in India, where official data shows one rape is reported on average every 20 minutes.
Many women's rights
groups are cautiously hopeful the protests and outrage that followed
the crime can be channeled into real change - fast-track courts for sexual offences and a plan to hire 2,500 new women police in Delhi are measures already in the works.
But legal experts
and some feminists are worried that calls to make rape punishable with
death and other draconian penalties will cramp civil liberties and are
unconstitutional. They say India needs better policing and prosecutions,
not new laws.
"If there are not enough convictions,
it is not because of an insufficiency of law, but it is the
insufficiency of material to base the conviction on," said retired Delhi
High Court judge R.S. Sodhi.
Five men have been
charged with the student's rape and murder and will appear before a New
Delhi court later on Monday. They are due to be tried in a newly formed
fast-track court in the next few weeks. A teenager also accused will
likely be tried in a juvenile court.
Ahead of Monday's
court appearance the five still had no defense lawyers - despite
extensive interrogations by the police, who have said they have recorded
confessions - after members of the bar association in the South Delhi
district where the case is being heard vowed not to represent them.
GROUNDS FOR APPEAL
The men will be
assigned lawyers by the court before the trial begins, but their lack of
representation so far could give grounds for appeal later should they
be found guilty - similar cases have resulted in acquittals years after
convictions.
"The accused has a
right to a lawyer from point of arrest - the investigations are going
on, statements being taken, it is totally illegal," said Colin Gonsalves, a senior Supreme Court advocate and director of Delhi's Human Rights Law Network.
Senior leaders of
most states on Friday came out in support of a plan to lower to 16 the
age that minors can be tried as adults - in response to fury that the
maximum penalty the accused youth could face is three years detention.
A government panel is considering suggestions to make
the death penalty mandatory for rape and introducing forms of chemical
castration for the guilty. It is due to make its recommendations by
January 23.
"The more you
strengthen the powers of the state against the people, the more the
possibility you create a draconian regime," said Sehjo Singh, Programme
and Policy Director with ActionAid in India and an expert on Indian women's social movements.
"We want to raise the bar of human rights in India, we want to raise the standards, not lower them."
The Indian Express newspaper warned against "knee-jerk"
reaction and said any change to the juvenile law "must come after
rigorous and considered debate. It cannot be a reaction to a fraught
moment".Courts are swamped with a backlog of cases in the country of 1.2 billion people and trials often take more than five years to complete, so the launch by Chief Justice Altamas Kabir of six fast-track courts in the capital to deal with sexual offences was widely greeted as a welcome move.
Several other states including Tamil Nadu and Maharashtra are now looking at following Delhi's example.
But Gonsalves says while the courts are a good idea on paper, similar tribunals in the past delivered dubious verdicts and put financial pressure on the rest of the justice system.
FAST TRACK COURTS
India set up 1,700 fast-track courts in 2004, but stopped funding them last year because they turned out to be costly. The courts typically work six days a week and try to reduce adjournments that lead to long delays in cases.
"The record of the fast-track courts is mixed," Gonsalves said. Conviction rates rose, he said, but due process was sometimes rushed, leading to convictions being overturned.
"Fast-track courts were in many ways were fast-track injustice," he said.
The real problem
lie with bad policing and a shortage of judges, Gonsalves said. India
has about a fifth of the number of judges per capita that the United
States has.
Indian police are
often poorly trained and underpaid, and have sometimes been implicated
in organized crime. Rights groups complain the mostly male officers are
insensitive to victims of sexual crimes.
Resources for, and
expertise in, forensic science is limited in most of the country's
police forces and confessions are often extracted under duress. The
judiciary complains it is hard to convict offenders because of faulty
evidence.
Human Rights Watch
said reforms to laws and procedures covering rape and other sexual
crimes should focus on protection of witnesses and modernizing support
for victims at police stations and hospitals.
The rights
organization has documented the continued use of archaic practices such
as the "finger test" used by some doctors on rape victims to allegedly
determine if they had regular sex.
"Reforms in the
rape laws - these are needed. But not in terms of enhancing punishment,"
said Meenakshi Ganguly, South Asia Director of Human Rights Watch.
"Why they are not
investigated, why there are not enough convictions, those are the things
that need to be addressed."
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