S. Mohan, M.N. Venkatachalliah, S.B. Majmudar
- What are the steps that can be taken for preventing the psychological and mental trauma that sexual assault victims have to endure?
- What role can the National Commission for Women play to cater to the sufferings of the victims during the proceedings?
- What are the parameters for conducting expeditious trial and/or investigation procedures so as to protect the rights of the victims under Articles 14 and 21 of the Constitution?
- On 10th of February, 1993, six women namely Usha Minz, Shanti, Josephine Kerketta, Rosy Kerketta, Nilli and Lilli, working as domestic servants in Delhi, were travelling by a moving train between Ranchi to Delhi through Muri Express.
- They were sexually assaulted and raped by eight army personnel on the commuter train. On their objection, the army personnel threatened the victims that in case they make any hue and cry they will kill the victims by throwing out of the running train.
- The petitioner forum filed the present writ petition before the Supreme Court of India seeking compensatory relief and rehabilitation in order to ensure justice to victims of such crimes.
- The writ petition was filed under Article 32 of the Constitution of India by the Delhi Domestic Working Women’s Forum on the grounds of indecent sexual assault which was subjected on four domestic servants by army personnel while all the six women were travelling through Muri Express train from Ranchi to Delhi.
- An appropriate scheme should be framed by the National Commission of Women to provide the required compensation and rehabilitation to the victims of such heinous crimes.
- Speedy trial is one of the essential requisites of law. In a case of this character such a trial cannot be frustrated by prolongation of investigation. Therefore, this Court has to spell out the parameters of expeditious conduct and investigation of trial; otherwise the rights guaranteed under Articles 14 and 21 of the Constitution will be meaningless.
- The respondent Nos. 2 and 4 filed a counter-affidavit stating, on the statement of Kumari Lili, FIR No. 042/93 was registered under Sections 376-B read with Section 34 , Indian Penal Code . Accused Dhir Singh was arrested and sent to judicial custody. On 13th August, 1993, the case-report under Section 173 CrPC was filed in the Court of the Chief Judicial Magistrate, Aligarh against the accused persons, namely Dhir Singh and Mikhail Heranj. The trial is pending before the District and Sessions Court, Aligarh.
- They mentioned that apart from these two accused, others could not be identified and two other accused namely Pharsem Singh and B. Kajoor were discharged. Three other police personnel, namely, Head Constable Ranjeet, constable Naresh Singh and constable Shiv Sarup Singh were arrested as they were on guard duty in the Muri Express train at the time of incident and failed to provide necessary protection to the tribal women/victims. The prosecution is in progress and it is stated that the case is likely to be committed.
- The respondents argued that considering the functions of the National Commission of Women set out in Chapter III of the National Commission for Women Act, 1990 the prayer that the commission must engage themselves in framing any appropriate schemes and measures were beyond the mandate given to the National Commission of Women.
The Hon’ble Supreme Court held that rape transgressed the fundamental right to live with dignity under Article 21 of the Constitution. The court mandated the National Commission of Women to prepare a scheme for the rehabilitation of the rape victims and also set up a board for compensating the victims. The apex court directed the Government of India to take the necessary steps to implement the scheme at the earliest. The court further indicated the bbroad parameters in assisting the victims of rape. The apex court for the first time pronounced its judgment keeping in mind the interests of the rape victims. The Court framed new requirements for police dealing with rape victims, including that victims be provided with legal representation, psychiatric counselling or medical assistance informing the rape victim of all her rights prior to the phase of questioning her, and protecting the anonymity of the victim during trial.
In this background, we think it necessary to indicate the broad parameters in assisting the victims of rape.o:p>
(1) The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well-acquainted with the criminal justice system. The role of the victim's advocate would be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but also to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counseling or medical assistance.
(2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.
(3) The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed. A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.
(5) The advocate shall be appointed by the court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorized to act at the police station before leave of the court was sought or obtained.
(6) In all rape trials anonymity of the victim must be maintained, as far as necessary.
(7) It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board.
(8) Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape.