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.
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.