How fast are fast-track courts?
One day in November, the 23-year-old woman is waiting, like she has, many times over the past year, outside a fast-track court in Delhi in Tis Hazari.
She is nervous, avoiding eye-contact with a group of people seemingly intent on making eye-contact with her. Among the group is the man who she claims raped her repeatedly for almost a decade.
The case, when it comes up for hearing, is simply adjourned for two-months. Indeed, any progress made, the woman, who wished to remain unidentified, said, is about the case moving from one fast-track court to another.
Fast-track courts were set up in 2000 to accelerate the delivery of justice and reduce pendency in courts. They were established for a limited period and received a few extensions but, by 2011, the 1,734 fast-track courts across the country had more or less wound up. Then on 16 December 2012, the gang-rape and subsequent death of a young physiotherapy student changed everything. People took to the streets in protest. Everyone was talking of speedier trials. And fast-track courts got a new lease of life. The central government said that the courts could continue until March 2015 and even offered Rs.80 crore to pay for the judges’ salaries.
In Delhi, six fast-track courts deal exclusively with cases of sexual assault. As of April this year, 1,374 rape cases were pending in these courts—with new ones being added everyday. While the original concept of fast-track courts envisaged the hiring of additional judges and new infrastructure, including courtrooms, technological facilities and libraries, this has not happened and fast-track courts now function with existing infrastructure and no additional judges.
“It’s a cheap non-solution to the problem of the backlog,” says Nicholas Robinson, a visiting fellow at the Centre for Policy Research.
With just 12 judges for every million people—in contrast to 50 per million in the US— judges hearing regular matters are often pulled aside and asked to preside over fast-track courts. “In other words, perhaps you can speed up the rate of hearing rape cases, but then murder and other cases will be heard more slowly,” adds Robinson.
Others are concerned about a judicial system that prioritizes offences, “Are we trying to differentiate between victims of crime? Are we saying some crimes are of greater relevance?” asks senior advocate Rebecca John.
The amendments to the criminal law, brought in the wake of the December 2012 gang-rape and murder, recommend that trials of rape be completed within two months. The result, say some lawyers, is speedy verdicts that sometimes don’t make the cut. “What is the quality of justice when the judgment comes in seven days only to be overturned by the high court?” asks John.
“Many accused are from the poorer strata. It is problematic for them to engage competent lawyers who can present an effective defence,” adds John. “You need a reasonable amount of time to prepare a legal defence. There has to be thorough research on arguments, questions and other inputs. Fast-track courts can miss these nuances,” she says.
Lawyers also operate with a sense of urgency to finish fast. “It is almost as if there is a sword hanging on one’s head,” says John.
With the quality of legal aid provided, many accused are often unable to defend themselves.
Jawaharlal Nehru University associate professor Pratiksha Baxi’s book, Public Secrets of Law: Rape Trials in India, quotes a case where the fast-track court held the accused guilty of crimes including rape within just six months of the offence. It later emerged that the accused was not provided a legal aid lawyer, despite petitioning the court that he could not afford a lawyer. “Publicity is also organized around fast-track courts with the view to calibrate judicial efficiency and reduction of delay, without regard to the principles of fair trail,” writes Baxi.
Moreover, while proceedings are expedited and often heard on a daily basis at fast-track courts, litigants retain the right to appeal, and that means the usual procedural delays in the higher courts where there is no separate fast-track lane. “Procedural law remains the same,” says S.S. Rathi, officer on special duty at the Delhi State Legal Services Authority, a statutory body which provides free legal aid and awareness to vulnerable litigants. “When fast-track courts were conceived, was any thought given to fast-tracking investigation or providing a special procedure different from the routine procedure? A holistic approach is missing.”
Still, fast-track courts have their pluses.
There is greater flexibility in the way sexual assault cases are being heard and better compliance with Supreme Court guidelines on how rape trials should be conducted—putting up screens in court that ensure victims don’t have to face their abusers, for instance.
“You can extend a degree of comfort on account of being a dedicated court,” says a judicial officer closely associated with fast-track courts.
In these, a judge can ask a person to leave the witness box and sit on a chair, which cannot be done in a regular court packed with litigants and lawyers.
Lower courts in Delhi, including those in Saket and Karkardooma, have been using so-called “vulnerable witness” courtrooms where the evidence of those who have been sexually assaulted is recorded.
There is also a trickle-down effect as the judge serves as an example for the rest of the staff. A presiding judge says that her support staff is better trained now. She says that being placed in a fast-track court gives her the freedom to hold regular meetings with her staff to help them to understand the nature of cases being handled.
“My male staff now very often leaves the courtroom of their own accord to lessen the survivor’s discomfort in narrating the details of the crime,” says the judge.
The solution, says Rathi, may just be better communication between the various stakeholders.
“The criminal justice system comprises the legislature, police, department of prosecution, jail administration and the judiciary. We never meet,” says Rathi. “Amendments in law are brought without asking those who have to interpret the law. At a policymaking stage, we need to communicate.”
Indeed, “you need a conversation between the local courts and the state or national government to determine how best to handle case management in different districts. Having dedicated court rooms for certain kinds of matters might make sense in some areas, but not others”, says Robinson.
There is also the obvious need for more judges and support staff, and better infrastructure.
Meanwhile, for people like the 23-year-old woman, the wheels of justice continue to grind slowly—even in a fast-track court.