Violation of Principles of Fair Trial in Rape Cases – Part I

By: Bipasha Kundu

[This article is a part one of the two part series]


Rape is one of the most heinous offences; unfortunately, the principles of fair trial are violated in such cases due to various factors. The occurrence of such cases leads to enormous public outrage. Such outrage often finds its way into the judicial process of dealing with the accused and may lead to violation of the principles of a fair trial. For example, in the recent Disha rape case, the four accused were killed in an encounter. Such encounters may seem to be a way of serving “instant justice,” but does such justice come without a price? Or is it actually justice in the first place? It’s not only the accused who are susceptible to their rights getting violated; the victims may also have to bear the brunt of myths, taboos, and misogynistic insensitivity, which often creep into the judicial process. This paper tries to analyse these issues in light of two cases that shocked the conscience of the country – the Nirbhaya rape case and the Disha rape case. In the Nirbhaya case, the execution of the convicts was delayed due to procedural issues like exhaustion of all remedies given to the convicts, which gave the impression that the judicial system of India is accused-centric. On the other hand, the accused in the Disha rape case did not get a chance to defend themselves by means of a trial, as they were killed in an encounter that was popularly celebrated as “instant justice.” The aim of the paper is not to comment on the veracity of the encounter, but it does seek to analyse the repercussions of “instant justice.” The paper also seeks to analyse the violation of the right to a fair trial of the victim as well.


The concept of Fair Trial means that in any criminal case, the proceedings ought to be conducted by a court that is competent, independent, and impartial. It has multiple aspects like the presumption of innocence of the accused, right to open trial, right to free legal aid, prohibition on double jeopardy, right against self-incrimination, etc. In the case of Zahira Habibullah Sheikh & ors. v. State of Gujarat & ors., the Supreme Court had observed that denial of a fair trial is not only injustice meted out to the accused, but also the victim and to the society itself. The right to Fair Trial is available to every accused, regardless of how heinous the offence might be.

As per the report of the National Crime Records Bureau, 32033 cases of rape were reported in 2019 alone, which roughly translates to 88 cases per day. The offence of rape is codified in s. 375 of the Indian Penal Code. Rape cases naturally give rise to outrage and shock in society; coupled with the frequent delay which occurs in the trial, the judicial system is often said to be “accused-centric.”  Rape cases are also subject to a huge amount of media attention, often resulting in a parallel media trial, which often leads to infiltration of biased opinions in the formal process of a criminal trial. The accused is not the only one who may face the negative consequences of such factors. The entrenched patriarchal values in members of society, including counsels and judges, often works against the victim and force her to undergo repeated humiliation and a trial herself in the form of obscene questions or regressive verdicts.

As per the National Family Health Survey (NFHS) 2015-16, rape cases in India are severely underreported; around 99.1% of cases go unreported. On top of that, the conviction rate of rape cases stands at a menial 23%. In the light of the introductory remarks, I contend that there have been repeated instances of violation of the Principals of Fair Trial in the context of rape cases. This paper aims to understand the violation of the Principles of Fair Trial of both the victim and the accused in the context of rape cases and is divided into two parts.

The present part of the paper deals with the influence of the principles of fair trial in the Nirbhaya Rape case. The second part discusses the violation of fair trial principles in the recent Disha rape case, along with the adverse impact of rape-myths and stereotypes on the rights of the victim.

I.                   Influence of Principles of Fair Trial in the Nirbhaya Rape Case

The Mukesh & Anr. v. State for NCT of Delhi & Ors., popularly known as the Nirbhaya rape case, shocked the nation in 2012. A female physiotherapy student and her friend had boarded a private bus on the night of 16th December 2012, after returning from a movie. The bus had six people (including the driver. One of the crew members was a juvenile). They had robbed a carpenter before the student, and her friend had boarded the bus. The six members beat up the friend and then proceeded to violently rape the student. They tortured the student and assaulted her by inserting iron rods in her private parts, which led to very serious internal injuries. After that, they threw the student and the friend out of the bus and escaped.

In this case, the convicts used the procedure in a manner so as to defer the death penalty to a later date multiple times. As per the Supreme Court Rules, 1966, a convict may choose to file a review petition within 30 days of the passing of the death sentence. The convicts of the Nirbhaya case chose to file the petitions at different dates. After the dismissal of review petitions, the accused again filed the curative petitions not at the same time but consecutively. This was done to take advantage of the fact that there was a negligible chance of allowing separate execution of the convicts because in case few convicts are executed, and subsequently, the death sentence of the remaining convicts is converted to a life sentence, the convicts who were already executed would have lost out on the benefit. It is important to note that the Right to Speedy Trial is an alienable principle of Fair Trial. As per the case of Rattiram v. State of M.P, this right is not exclusively given to the accused. The Right to Speedy Trial of the victim was recognised in the case of Hussainara Khatoon v. Home Secretary, State of Bihar. It should be ensured that the accused has the opportunity to take advantage of the remedies and benefits given to him by the law, but it doesn’t mean that blatant abuse of the procedure can be allowed so as to harm the victim.

Another aspect that needs to be considered in this regard is excessive media attention. The term “Media Trial” means the impact of exhaustive coverage of details of the criminal proceedings by the media. Because of extremely stiff competition between cable channels, the media often labels the accused as guilty even before the trial has concluded, and it has the potential to impact the accused’s right to a fair trial adversely. For example, in the recent case of Utsav Kadam v. State of Assam, several prominent news portals reported that the rape accused in this case was granted bail because he is “talented” and a “future asset” to the nation as he is an IITian. The headlines have the potential to evoke an extremely negative response from the readers, but in fact, they completely missed the point of the bail order and cherry-picked the facts to present it in a misleading manner. In actuality, the court had granted the bail because the accused could not possibly tamper with the evidence if given bail. Justice Santosh Hegde had observed, in the case of MP Lohia v. State of West Bengal, that publication of a one-sided report, or a “half-baked” truth by media on a sub-judice matter, can potentially adversely affect the administration of justice.

The court in the case of RK Anand v. Registrar held that there is no place for a parallelly conducted media trial in the justice system of India and that it gives rise to a conflict between the right to free speech and the right to a fair trial. In the case of Hamdard Dawakhana v. Union of India, the court pointed out that maintaining a balance between the freedom of the press and other laws is necessary to uphold the value of democracy enshrined in the Constitution.  The case of Sanjeev Nanda v. The State is an instance of excessive media interference in the judicial proceedings. Some media channels conducted “sting operations” to expose instances of bribery of the witnesses, all while the matter was sub judice; according to the High Court, there was a likelihood of the judicial system becoming a “laughing stock” due to such uncalled for media attention. The right to freedom of speech and expression is enshrined in Article 19(1)(a) of the Constitution of India, and like other rights, this right is not absolute either. Reasonable restrictions on this right are codified in Article 19(1)(2) of the Constitution. In the case of Perspective Publications v. State of Maharashtra, the court opined that if any publication by media gives rise to an “anxious opinion” in the minds of the public, it puts the integrity and impartiality of the judge at stake, the act would amount to contempt of court.  

However, it would be incorrect to say that media intervention affects the judicial process only negatively. It acts as a bridge between common people and the courts, which in some ways increases its accountability. In the case of Manu Sharma v. State of Delhi (“Jessica Lal case”),the prime accused was the son of an influential politician. He had shot the victim, who was a bartender, which led to her death. All the witnesses subsequently turned hostile. The trial court acquitted all the accused. The media exposed the manipulation of trial by the accused, and public sentiments soon mounted enough pressure so as to lead the Delhi High Court into starting a suo moto reinvestigation of the case. Subsequently, the accused were convicted. In this case, undoubtedly, the media played a significant role in getting the victim justice. Hence, it can be concluded that media can act as a watchdog to the judicial process, provided that it doesn’t overstep its boundaries and conduct a parallel trial. 

[Bipasha Kundu is a second year student at National University of Juridical Sciences, Kolkata.]


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