Nirbhaya Act Unimplemented, Nirbhaya Fund Unused! : Criminals should fear, not women

While cruelty against Disha and killing of four unarmed suspects in custody led to complex problems to the police and the administration in Telangana, the Jagan Mohan Reddy government in Andhra Pradesh introduced a forward-looking legislation - AP Disha Bill 2019 and AP Special Courts for Specified Offences Bill 2019, which has certain practical issues.

Now it is the turn of the KCR government in Telangana to think of strengthening criminal administration system with solid improvements.

The euphoria and hero-worship of the police in Telangana are subdued with three probes into the so-called 'encounter' by the Supreme Court, the High Court and the National Human Rights' Commission.

The people who showered flowers, offered milk-bath, flooded the police officers with bouquets are now thinking what went wrong in the system.

The overwhelming support to the police' illegal action reflects people's frustration caused by inordinate delays and ultimate denial of justice to the victims of crimes.

Its anger against system, grief for victims and protest inefficiency of police and weaknesses of judicial system.

The criminal justice in India focuses on the fair trial of the accused with a strong suspicion against the abuse of police power and presumption that the accused is innocent and totally ignores the victims. This is the major defect.

Presumption of innocence is the baseline of the fair trial mechanism universally, which cannot be negotiated. The evidence law since 1872 presumes that the police officer will use third degree methods to extract a confession from the suspect.

Hence prescribed a prohibition of admission of confession given to police officer. Legal luminary and wizard of Evidence Act, late Vepa Partha Saradhy, (90-year-old former colleague of this columnist at NALSAR University) used to explain that the purpose of this prohibition was to encourage the accused to give complete information to the police during interrogation without fear and to stop the police from resorting to third degree, which rarely happened.

Criminal law deals with justifiable procedures for trial of accused. Hence it is basically law for criminals and there is little in it to secure interests of the victim.

The victimology is not part of criminology. The governments must do something to protect the victims and secure their rights.

Nirbhaya Fund remains unspent

There was a hue and cry after the ghastly crime against Nirbhaya was committed in December 2012, against the weak policing and justice that failed to punish the criminals within a reasonable time.

Justice JS Varma Commission recommended several reforms such as constitution of Nirbhaya Fund to help victims and Nirbhaya Act to speed up the investigation and trial.

Meaning of Nirbhaya is fearless, and these are meant for making woman fearless. But the ills of the system are so strong that they failed miserably.

The government allotted Rs 10,000 crore to ensure safety of women under Nirbhaya Fund. Under this scheme, the Centre gives money to the States to spend on programmes to ensure women's safety.

The Union Women and Child Development Ministry is the nodal agency that approves the State proposals and recommends the Department of Economic Affairs to allocate funds. It releases money under four heads including the Mahila Police Volunteer Scheme.

A total of 12 States were allocated fund under this scheme. From Nirbhaya Fund, Rs 2,050 crore was allocated to various States. Rs 1,656 crore was released in the last five years to States and Union Territories.

But only about 20 per cent of the fund was spent by the States. The States could submit utilisation certificates of less than 9 per cent money released under Nirbhaya Fund - Rs 146.98 crore of Rs 1,656.71 crore, respectively, in the past five years.

Data tabled before Parliament on November 29, 2019, shows that six States and UTs - Maharashtra, Manipur, Meghalaya, Sikkim, Tripura and Daman & Diu - have not spent a single rupee from the Nirbhaya Fund allocated by the Union Home Ministry.

Maharashtra, one of the big States which was under the BJP rule for five years, from 2014 to 2019, has recorded 4,306 incidents of assault on women in 2017 – the fourth highest in the country; second highest cases of kidnapping of women and sixth highest number of rapes.

But it has spent nothing for the safety of woman. Not only the BJP-ruled States, even the other ruling parties had no plans to utilise the total fund.

One such example is the State of Telangana, where Disha was gangraped and murdered. It could spend only Rs 4 crore out of the Rs 103 crore allocated to it by the Union Home Ministry, for 13 programmes including the Emergency Response Scheme.

The police should have been trained to behave like human beings first and friends next. There is no positive and proper response to complaints of missing of women or children.

In Disha incident, the police abused the victim's parents and a police officer said, 'she might have eloped with someone'.

Is it not verbal sexual assault on women? If somebody writes it now on Facebook, he will be arrested under Disha Act and IT Act, but the police are not prosecuted.

Their inaction, refusal to register the FIR on the excuse of jurisdiction through Zero FIR should have been possible but delay in taking up the case has complicated the issue.

It is also apprehended that the police, in the wake of disreputation and media banging, resorted to 'heroic' act of gunning down the unarmed suspects in their own custody.

And their trick worked, as sheepish mob showered flowers of appreciation on police. The Facebook mediocre mob including some senior 'intellectuals' abused the human rights activists as dogs. The flock should understand that human rights need watchdogs.

Nirbhaya Act unimplemented

Aiming at speedy investigation and fast trial, the Nirbhaya Act, 2013, has created new offences like non-registration of FIR in sexual assault case to be punished with two-year imprisonment.

The Telangana police suspended the officers, but were they booked under Nirbhaya Act? This Act also clearly laid down the timelines such as two months each for investigation and for prosecution.

Can any State in this country including Telangana and Andhra Pradesh show that they could complete the trial of any sexual assault case within four months?

The Nirbhaya Act was not implemented and Nirbhaya Fund was not utilised by the State governments. Instead of making woman fearless, the mis-governance plus worst governance or no-governance has made the accused fearless.

The horrific gangrape and murder of a woman in Telangana, and similar incidents in UP, Bihar, Rajasthan and Karnataka indicate that women are as unsafe and fearful today as they were on the eve of Nirbhaya gangrape and murder case. Disha is the daughter of a system that killed Nirbhaya.

Without implementing the Nirbhaya Act, the Andhra Pradesh introduced Disha Act 2019, according to which, the judgment should be pronounced in 21 working days from date of offence in crimes of rape provided there is substantial conclusive evidence.

The investigation shall be completed in seven working days and trial shall be completed in 14 working days. For this, amendments have been made to Section 173 and Section 309 of the Code of Criminal Procedure Act, 1973 and via the introduction of additional clauses in the Act.

The question is with 58 per cent vacancies in subordinate judiciary and 25 per cent vacancies in police officers, can Andhra Pradesh government complete any trial in 21 days?

Courts without judges

The AP government has carved out special courts in each district, without allocating a single rupee or creating a single new post.

Similarly, it has constituted special police teams from out of the existing strength, without adding a single post of police. With one-fourth vacancies, the police cannot perform any skilful or speedy investigation.

The Cr P C mandates filing of charge-sheet in 90 days, which rarely happens. An accused/suspect arrested will surely get bail after 90 days.

If he is a criminal, he would be a free man in streets and commit some more crimes. In UP, the accused on bail have burnt the victim while on the way from court of law. The accused must fear, not women.

(The writer is former Central Information Commissioner and Professor at Bennett University)