SC to assess response of justice system to sexual offences, seeks data from states, HCs

Delay in cases like the 2012 Nirbhaya gang rape-and-murder case in recent times has created "agitation, anxiety and unrest" in the minds of people, the Supreme Court said on Wednesday as it took suo motu (on its own) cognizance of assessment of the criminal justice system in response to sexual offences. The top court said post the Nirbhaya case, which shocked the conscience of the nation, despite many amendments introduced in criminal law to redefine the ambit of offences providing for effective and speedy probe and trial in rape cases, the NCRB's 2017 data said 32,559 cases of rape were registered in India.

It asked all states and high courts for the status report on various questions on compliance of procedure laid down by the court and the law including whether medical experts have done away with the controversial Per-Vaginum examination commonly referred to as 'Two-finger test' of rape victims, which was held to be violative of the dignity of woman in 2013 by the apex court. The top court said the Nirbhaya case is not an isolated case where it has taken so long to reach finality and noted that it has been one of the cases where agencies have acted swiftly taking into account the public outrage.

"The delay in such matters (rape cases) has, in recent times, created agitation, anxiety and unrest in the minds of the people," it said. A bench headed by Chief Justice S A Bobde sought response and status report by February 7, 2020 from all the states and High Courts on several aspects including utilisation of the Nirbhaya fund, speedy probe and trial, collection of evidence, forensic and medical evidence, recording of statement and compensation to the victim in such cases.

The bench, also comprising Justices B R Gavai and Surya Kant, said: "We are, therefore, of the view that it is necessary to take stock of the implementation of provisions of criminal law, including the said amendments, relating to rape cases and other sexual offences." The top court appointed noted criminal lawyer and senior advocate Siddharth Luthra, as amicus curiae for assisting it in the matter and asked Solicitor General Tushar Mehta to extend all co-operation.

It said, "It is necessary to call for information with regard to status of affairs at ground level from various duty holders like investigation agencies, prosecution, medico-forensic agencies, rehabilitation, legal aid agencies and also Courts to get a holistic view to make criminal justice system responsive in the cases of this nature". The top court said that the manner in which the medical report of the victim of rape is being prepared is a matter of concern and the Amendment Act, 2013 provided for the manner of medical examination as well as the guidelines for preparation of medical report.

It said that the law provides that the evidence of character of a victim and of such person's previous sexual experience with any persons shall not be relevant on the issue of consent or the quality of consent. "The effect of the provision is that previous sexual experience and in effect the habituation to sexual intercourse is now irrelevant for the purpose medical examination. Still, we come across the medical opinion such as 'the victim is habitual of sexual intercourse' and the opinion suggesting possibility of consent on the basis of her previous sexual exposure", it said.

The top court sought for status report on compliance of law on medical opinion and asked whether the states have adopted the guidelines and protocols of the Union Ministry of Health and Family Welfare. It sought to know "whether the medical experts have done away with the per-paginum examination commonly referred to as 'Two-finger test' and whether any directions have been issued by the states in this regard and whether medical experts have done away with the practice of giving opinion on the previous sexual experience of the victim?.

The bench said that provisions inserted by the Amendment Act of 2013 and 2018 provide for registration of FIR in cases of rape and sexual offences by a woman police officer or any woman officer. It asked the Chief Secretary and Director General of Police and Registrar General of High Courts to furnish status reports with regard to whether all the police stations have a woman police officer.

The top court also sought to know the status of zero FIR and whether States have adopted Standard Operating Procedure (SOP) to be followed for responding in rape and similar offences. The top court sought a status report on fixing liability on medical institutions, both public or private to provide medical treatment free of cost to the rape victims together with a duty to inform the police of such incident.

Similarly, it asked for status report on questions with regard to compliance of other provisions of rape law with regard to recording to statement of victim, collection of evidence, forensic examination, odontology and DNA mapping saying the data play an important role during the investigation as well as trial for linking the culprit with the crime. On speedy trial in rape cases, the top court also questioned and sought to know about the time frame of completion of trial, in-camera trial, number of women presiding judge and special courts for such offences.

The top court also questioned the measures taken for witness protection and compensation for the rape victims and sought to know the status of the utilization of the Nirbhaya fund created in the year 2013.