New Delhi: Eighteen years ago, the Supreme Court had laid down guidelines for trial courts for dealing with rape cases in a "sensitive manner" but experts say the norms for holding in-camera proceedings and avoiding unnecessary probing questions are not being followed strictly.
Some Delhi-based prominent women lawyers said while the degree of sensitivity in dealing with rape cases varies in different trial courts in the capital, the scenario is precarious in small cities and towns where a total go-bye is given to the apex court`s 1996 judgement in this regard.
The views expressed by senior advocate Geeta Luthra and counsel Meenakshi Lekhi and Rebecca John were reflected in a Delhi High Court judgement this year in a case relating to the rape of a 10-year-old girl in which the trial court had recorded the minor`s statement.
"This court strongly deprecates the approach adopted by the learned judge, who recorded the testimony of the child victim in a most insensitive and offensive manner," the High Court said while setting aside the acquittal of the accused and convicting and sentencing him to 10 years in jail.
While John and Lekhi said trial courts do not strictly adhere to these norms not only in the capital but also across the country, Luthra said pendency of cases also compels judges to give a go-bye to these guidelines on sensitivity.
"The apex court`s guidelines are rarely followed in smaller districts and in remote corners of the country. Even in Delhi where more awareness is expected regarding the guidelines, there is no consistency in their implementation.”
"These guidelines are being flouted and there is a serious gap between their implementation and the spirit behind them," John said.
Lekhi said while there was no strict adherence to the guidelines in the rest of the nation, courts in Delhi follow these norms only due to intervention by the Delhi High Court.
"Guidelines were not being strictly followed (in Delhi courts) till a year ago, but now consistency has been imposed by a recent Delhi High Court verdict," Lekhi said.
Luthra, however, said the guidelines are being adhered to by Delhi courts and that any lack of sensitiveness in handling these cases is due to a huge backlog of cases.
"You need more courts for judges to handle the cases sensitively," she said.
The apex court`s guidelines, laid down in a 1996 judgement on a rape case of 1984, stipulated that the courts "must deal with such (rape) cases with utmost sensitivity.
"The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case."
The apex court had also said, "The court, therefore, should not sit as a silent spectator while the victim of crime is being cross-examined by the defence. It must effectively control the recording of evidence.”
"While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime."
The apex court had also referred to section 327 of the Criminal Procedure Code, which deals with right of an accused to an open trial, and said the law casts a duty on the court to conduct the trial of rape cases etc invariably in camera.
"It (in camera trial) would enable the victim of crime to be a little comfortable and answer the questions with greater ease in not too familiar surroundings.”
"Trial in camera would not only be in keeping with the self-respect of the victim of crime and in tune with the legislative intent but is also likely to improve the quality of the evidence of a prosecutrix because she would not be so hesitant or bashful to depose frankly as she may be in an open court, under the gaze of public.”
"The improved quality of her evidence would assist the courts in arriving at the truth and sifting truth from falsehood," the court had said.
"Trial of rape cases in camera should be the rule and an open trial in such cases an exception," it had added.