Law review

India’s sexual crimes ordinance puts time limits on trying cases. Here’s data on why it may not work

The country’s experience with other laws shows such timelines are unrealistic.

What good is a law that seems perfect in theory but remains ineffectual in practice? The central government’s ordinance on sexual offences has been in the news for many reasons, primarily for introducing the death penalty as punishment for the rape of a child under 12. The ordinance, promulgated in April, flies in the face of Justice JS Verma Committee’s recommendation to amend the Criminal Law Act, 2013. The committee said the “deterrent effect of death penalty on serious crimes is actually a myth”.

But there is another aspect of the ordinance that has not received much public attention: it amends the Criminal Procedure Code, 1973 and fixes timelines for rape cases. For one, investigation and trial must each be completed within two months, and any appeal must be disposed of within six months. Such timelines may appear reformist on paper, but are they realistic?

For an answer, let us examine some of the timelines prescribed in other laws and to what extent they have been followed by the country’s courts.

The Protection of Children from Sexual Offences Act

The POCSO Act of 2012 requires the special courts established under it to complete trial, as far as possible, within a year of taking cognisance of the case. To what extent is the timeline being adhered to? This chart provides an insight.

The chart shows the average time taken to dispose of POCSO cases in four states. In Karnataka and Maharashtra, just about 16% of the cases are wrapped up within a year. Assam fares slightly better at 29% while Delhi tops at 69%. In Maharashtra, as many as 45% of the cases go on for more than two years.

Negotiable Instruments Act

Section 138 of the Negotiable Instruments Act of 1881 makes dishonouring of cheques a criminal offence. Accordingly, Section 143 states that judges should endeavour to dispose of a cheque bounce case within six months from the date of the complaint. But data collected from subordinate courts from across India shows the timeline is followed more in the breach.

The chart shows the average number of years for which cheque bounce cases are pending in the subordinate courts of various states. Nationally, such cases are pending for an average of four years. Among the states where courts take the longest to clear these cases, Gujarat leads with a shade under 10 years. Haryana and Kerala follow with over five years each. Himachal Pradesh boasts the lowest average pendency of around two and a half years, but even there it is far beyond the prescribed limit of six months. It is a stark disparity between statutory expectations and reality.

Case Flow Management Rules

The rules were first recommended in a report by the Justice Jagannadha Rao Committee set up by the Supreme Court. The report was presented in the case of Salem Bar Association v Union of India, 2005, following which the top court directed all states to draft Case Flow Management Rules to ensure smooth and speedy disposal of cases.

Several High Courts have since passed such rules for themselves and their subordinate courts, but there is no evidence they have ever been implemented. The rules divide cases into “tracks”, each with an upper time limit for disposal. The limit varies among states, but is generally fixed at two years. Put simply, all cases, civil and criminal, are expected to be decided within two years. The reality, of course, is depressing.

The chart shows for how long cases are pending in High Courts and subordinate courts across India. More than half the cases in subordinate courts are pending for over two years. The situation is much worse in High Courts, where 77% of the cases are pending for over two years.

Way forward

Clearly, setting arbitrary timelines for disposal of cases does not work, and it would be the same for the ordinance on sexual offences. Those involved in drafting laws should instead analyse the life cycle of a case and the workload of judges to determine more realistic time frames. Such a ground-up approach can help achieve the desired result and enable speedy disposal of cases.

In fact, some High Courts have already launched pilot studies to come up with scientific ways of dealing with cases in a timely fashion. Other courts would do well to follow suit and find methods to ensure that timelines prescribed by law do not remain mere textbook guidelines.

Arunav Kaul is a research associate at DAKSH, a civil society organisation in Bengaluru that works for judicial reform. Kruthika R is an associate editor with Constitutional and Civic Citizenship Project at the Centre for Law and Policy Research, Bengaluru.

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Swara Bhasker: Sharp objects has to be on the radar of every woman who is tired of being “nice”

The actress weighs in on what she loves about the show.

This article has been written by award-winning actor Swara Bhasker.

All women growing up in India, South Asia, or anywhere in the world frankly; will remember in some form or the other that gentle girlhood admonishing, “Nice girls don’t do that.” I kept recalling that gently reasoned reproach as I watched Sharp Objects (you can catch it on Hotstar Premium). Adapted from the author of Gone Girl, Gillian Flynn’s debut novel Sharp Objects has been directed by Jean-Marc Vallée, who has my heart since he gave us Big Little Lies. It stars the multiple-Oscar nominee Amy Adams, who delivers a searing performance as Camille Preaker; and Patricia Clarkson, who is magnetic as the dominating and dark Adora Crellin. As an actress myself, it felt great to watch a show driven by its female performers.

The series is woven around a troubled, alcohol-dependent, self-harming, female journalist Camille (single and in her thirties incidentally) who returns to the small town of her birth and childhood, Wind Gap, Missouri, to report on two similarly gruesome murders of teenage girls. While the series is a murder mystery, it equally delves into the psychology, not just of the principal characters, but also of the town, and thus a culture as a whole.

There is a lot that impresses in Sharp Objects — the manner in which the storytelling gently unwraps a plot that is dark, disturbing and shocking, the stellar and crafty control that Jean-Marc Vallée exercises on his narrative, the cinematography that is fluid and still manages to suggest that something sinister lurks within Wind Gap, the editing which keeps this narrative languid yet sharp and consistently evokes a haunting sensation.

Sharp Objects is also liberating (apart from its positive performance on Bechdel parameters) as content — for female actors and for audiences in giving us female centric and female driven shows that do not bear the burden of providing either role-models or even uplifting messages. 

Instead, it presents a world where women are dangerous and dysfunctional but very real — a world where women are neither pure victims, nor pure aggressors. A world where they occupy the grey areas, complex and contradictory as agents in a power play, in which they control some reigns too.

But to me personally, and perhaps to many young women viewers across the world, what makes Sharp Objects particularly impactful, perhaps almost poignant, is the manner in which it unravels the whole idea, the culture, the entire psychology of that childhood admonishment “Nice girls don’t do that.” Sharp Objects explores the sinister and dark possibilities of what the corollary of that thinking could be.

“Nice girls don’t do that.”

“Who does?”

“Bad girls.”

“So I’m a bad girl.”

“You shouldn’t be a bad girl.”

“Why not?”

“Bad girls get in trouble.”

“What trouble? What happens to bad girls?”

“Bad things.”

“What bad things?”

“Very bad things.”

“How bad?”

“Terrible!!!”

“Like what?”

“Like….”

A point the show makes early on is that both the victims of the introductory brutal murders were not your typically nice girly-girls. Camille, the traumatised protagonist carrying a burden from her past was herself not a nice girl. Amma, her deceptive half-sister manipulates the nice girl act to defy her controlling mother. But perhaps the most incisive critique on the whole ‘Be a nice girl’ culture, in fact the whole ‘nice’ culture — nice folks, nice manners, nice homes, nice towns — comes in the form of Adora’s character and the manner in which beneath the whole veneer of nice, a whole town is complicit in damning secrets and not-so-nice acts. At one point early on in the show, Adora tells her firstborn Camille, with whom she has a strained relationship (to put it mildly), “I just want things to be nice with us but maybe I don’t know how..” Interestingly it is this very notion of ‘nice’ that becomes the most oppressive and deceptive experience of young Camille, and later Amma’s growing years.

This ‘Culture of Nice’ is in fact the pervasive ‘Culture of Silence’ that women all over the world, particularly in India, are all too familiar with. 

It takes different forms, but always towards the same goal — to silence the not-so-nice details of what the experiences; sometimes intimate experiences of women might be. This Culture of Silence is propagated from the child’s earliest experience of being parented by society in general. Amongst the values that girls receive in our early years — apart from those of being obedient, dutiful, respectful, homely — we also receive the twin headed Chimera in the form of shame and guilt.

“Have some shame!”

“Oh for shame!”

“Shameless!”

“Shameful!”

“Ashamed.”

“Do not bring shame upon…”

Different phrases in different languages, but always with the same implication. Shameful things happen to girls who are not nice and that brings ‘shame’ on the family or everyone associated with the girl. And nice folks do not talk about these things. Nice folks go on as if nothing has happened.

It is this culture of silence that women across the world today, are calling out in many different ways. Whether it is the #MeToo movement or a show like Sharp Objects; or on a lighter and happier note, even a film like Veere Di Wedding punctures this culture of silence, quite simply by refusing to be silenced and saying the not-nice things, or depicting the so called ‘unspeakable’ things that could happen to girls. By talking about the unspeakable, you rob it of the power to shame you; you disallow the ‘Culture of Nice’ to erase your experience. You stand up for yourself and you build your own identity.

And this to me is the most liberating aspect of being an actor, and even just a girl at a time when shows like Sharp Objects and Big Little Lies (another great show on Hotstar Premium), and films like Veere Di Wedding and Anaarkali Of Aarah are being made.

The next time I hear someone say, “Nice girls don’t do that!”, I know what I’m going to say — I don’t give a shit about nice. I’m just a girl! And that’s okay!

Swara is a an award winning actor of the Hindi film industry. Her last few films, including Veere Di Wedding, Anaarkali of Aaraah and Nil Battey Sannata have earned her both critical and commercial success. Swara is an occasional writer of articles and opinion pieces. The occasions are frequent :).

Watch the trailer of Sharp Objects here:

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This article was published by the Scroll marketing team with Swara Bhasker on behalf of Hotstar Premium and not by the Scroll editorial team.