Law on Paper v/s Reality of Justice: The Inflexibility in Statutory Application of Law

Author

Maria Spoorthy B is a 1st-year B.A. LL.B. student at Christ Academy Institute of Law.

Introduction

The true power of law in reality does not lie in the severity of its punishment but in the power of its applicability to deliver the JUSTICE that the victim deserves.

How ironical it is that the very same law that should act as a power backup for the people sometimes tie the hands of the judges and force them to delay justice, leaving them helpless.

While Indian law for murder and extreme cases where the victim has lost the life, see the aspect of RAREST OF THE RARE doctrine to give the accused the death penalty, it completely takes away that choice in minor sexual offence cases. Here, the judge cannot take into consideration any kind of relationships between the accused and the victim, the accused will be given a harsh punishment if the victim is underage.

The ultimate irony of these strong laws which are at times inflexible is that it actively backfires against the real victims. Because of these permanent and severe laws they leave no middle ground; therefore, the courts become hyper cautious and demand absolute error-free evidences; and obtaining these evidences becomes the major drawback as it takes many years together and the accused can easily exploit the minor procedural errors and investigation delays using the influence and technology and walk away unpunished.

Therefore, this blog will showcase how the rigid statutory defeats its own protective purpose, it shows why India should give the judges their freedom guided by judicial protocols to ensure that justice is delivered and not just the law is applied.

The blog revolves around a central and most important question that is:

1. How the delays and procedural backlogs turn India’s strict anti-rape and anti-crime laws into an ineffective hindrance by allowing the accused twist and turn their way to get away unharmed?
2. Why did the strict penalties born from Nirbhaya case fail to bring out high conviction rate?

All these issues and questions matter the most in the present legal landscape because in this technological era, law can be and is easily misused and the very strict laws that should be a weapon against crime is becoming a tool to escape easily.

For instance, the minimum years of imprisonment should be reduced so that judges won’t be tied down worrying about imprisoning an innocent, which leads to procedural delays and erasing of evidence leading delayed justice and sometimes denied justice.

Adopting a systematic approach, this blog argues that the meaningful prevention cannot be achieved by merely increasing the statutory punishments, rather the true and fair justice requires a shift from harsh penalties to enforcing strict trial timelines and making sure no victim is denied their justice.

Evolution of Absolute Prevention: Statutory Mandates under POCSO

The statutory doctrines in India governing sexual offenses have changed immensely over time due to the legislative requirement for absolute deterrence. The lawmaker believed that the only way to stop the crime was by making the laws and punishments severely harsh on paper and because the punishment is severe and permanent, it leave no area for mistakes to ensure no escape for the accused, the Indian parliament intentionally limited the freedom of the judges by imposing a strict mandatory minimum sentences, which means a judge no matter what cannot reduce the punishments of the accused below the minimum.

“For MINORS under the age of EIGHTEEN, the statutory rigidity is codified under Section 4 of the POCSO Act, 2012, which prescribes a minimum of ten to twenty years of imprisonment. For ADULTS, the law is codified under Section 64(1) of Bharatiya Nyaya Sanhita (BNS), 2023, which declares a minimum punishment of ten years of imprisonment.”

Beyond POCSO: The Structural Drawbacks in the Adult Rape Judgements

Because the Section 64(1) of BNS declares a minimum of ten years of imprisonment it creates a trap of “either this or nothing” for the judges. When the minimum punishments itself is this intense and permanent, the judges become very cautious and make sure that there is no room for mistakes, because if the local police makes a tiny mistake or if the evidence gathered is slightly messy the judge ends upon a major deciding block where his hands are tied, either he has to choose a massive immense punishment or has to choose complete acquittal.

Because our Indian courts are based on the belief stated by English jurist, WILLIAM BLACKSTONE in 1760s, “It is better that ten guilty persons escape, than that one innocent suffer”. Even though this belief raises many questions, it ultimately should be followed anyways.

The written laws are strong and tough, but the reality of Indian courtrooms is slow and bounded by certain rigid protocols, that even the judges cannot break free from. According to National Crime Records Bureau (NCRB) data, courts faces an overwhelming backlogs of over 2,60,000 rape cases, the delays is because the judges become very cautious and makes sure there is no mistakes in the evidences and the gathering of the absolute evidence takes a lot of time, hence they manage to finish trials in only about 20,500 cases a year. This results in nearly 90% of the remaining cases unsolved and are still struck waiting for a final decision.

The severity of written law sometimes means nothing when a trial takes years to even finish.

This years of delay acts as a direct shield for the actual criminals. During the years it takes for a trial to move forward, powerful or wealthy accused have plenty of time to track down to the victim’s family and threaten them, or bribe them. By the time the case finally reaches a judge, the key witnesses forget the details of the scenes, or get scared and change their story.

Because of the severity of the punishment for the accused the courts asks for an absolute perfect evidence, these delays and investigative errors cause the prosecution’s case to collapse or let the accuse escape with the minimum punishment, leading to India’s abysmally law rape conviction rate of just 24.4%.

Some of the research gap and unresolved aspects surrounding my blog are: the Section 309 of CrPC (now Section 344 of Bharatiya Nagarik Suraksha Sanhita, 2023) it is mandatory that the sexual assault trials should be completed within two months of filing the chargesheet, but in reality these cases take three to seven years to deliver justice and while Supreme Court approved the WITNESS PROTECTION SCHEME, 2018, it only exists on paper for influenced profile cases, because of which the court loses it’s important witnesses.

In 2012, the tragic Nirbhaya case triggered a totally breaking national outrage, that forced the Indian legislature to rewrite the statutory law regarding the sexual violence. Through the landmark Criminal Law (Amendment) Act, 2013, India put forth intolerable uncompromising legal framework where it prescribes the mandatory of minimum life sentence and death penalty according to the extent of the cruelty.

Yet, over a decade since this legal statutory was remodelled, the ‘reality of justice’ is still locked inside a broken mechanism where the conviction rates for rape cases stubbornly remain struck between 27% and 30%. This shocking gap proves that the statutory severity will remain as a fantasy, if the working of the statutory is broken containing a lot of loopholes.

Because of its severity of minimum sentence, the trial goes on for many long years delaying the justice and giving a way out for the accused. Consequently, the harsh laws becomes meaningless if the procedure of these laws has loopholes allowing the accused to escape.

Restoring Statutory Flexibility: Pushing Forward India’s Criminal Justice System

The solution for fixing India’s rape trial failures is not trying to weaken the law, but to stop treating judges like robots. The lawmakers should give back the judges their flexibility to decide the punishments based on the given facts of the case, rather than forcing them to use the rigid and mandatory sentencing laws.

This will allow the judges to look into the unique facts and situation of a particular case and its intensity of crime. If a judge has a concession, they won’t be forced to choose a complete acquittal over some minor mistakes done by the police nor will they have to unfairly ruin a teenager’s life for a consensual relationship.

This solution is also backed up by the top legal experts in the country that is the law commission in the report with the cite Law Commission of India Report No. 283. In this report the law commission has explicitly advised the government to introduce changes in the rigid laws and give them flexibility to adjust sentences based on the reality of each case.

Ultimately this blog also showcases that law is as good as its enforcement. The true prevention comes from the speed and certainty of the punishment enforced rather than the cruelty of the written laws on paper. India must work hard to effectively build a better court infrastructures and assign more judges to wipe out the pending 90% of the court backlogs.

India has to have a shift from “JUSTICE DELAYED IS JUSTICE DENIED” to “JUSTICE HASTENED IS JUSTICE DELIVERED”.

Conclusion

Finally, for the India’s criminal law system to truly protect its citizens and to avoid the increment of criminals it has to work towards and make sure that the letter of law written on the paper has to give way to the reality of justice inside the courtrooms. Justice should no longer be abstract but tangible and concrete.

Citation and References

1. Section 64(1), The Bharatiya Nyaya Sanhita, 2023.
2. Section 4, The Protection of Children from Sexual Offences Act, 2012.
3. National Crime Records Bureau, Ministry of Home Affairs, Crime in India Report, 2024.
4. Law Commission of India, Report No. 283: Age of Consent under the POCSO Act, 2012 (September 2023).
5. Mukesh and Anr. v. State of NCT of Delhi and Ors., (2017) 6 SCC 1 (establishing the “rarest of rare” context and the judicial response to the 2012 gang rape).
6. The Criminal Law (Amendment) Act, 2013, No. 13, Acts of Parliament, 2013 (India).
7. National Crime Records Bureau (NCRB), Ministry of Home Affairs, Crime in India Report.