Speaking for the voiceless:

Speaking for the voiceless: (Indian Express, Editorial) A need to redefine the process of criminal justice

Context:

• An analysis of rape cases of minors reveals that nothing has changed even after the enactment of the Protection Of Children from Sexual Offences (POSCO) Act in 2012.
• The Criminal justice process would benefit from more elements of inquisitorial system.

The drawback:

• In most cases when the medical examination of minor victims is not granted by their guardians then more emphasis needs to be laid on oral evidence.
• But it has been found that comparatively less importance is given to the uncorroborated oral evidence in cases where the consent for medical examination is withheld.
• The adversarial system of dispensing justice had not worked satisfactorily in India and some beneficial features of the inquisitorial system should be incorporated.
• As for example:

o In an inquisitorial system, as applicable in China, Russia, Japan, Scotland, etc judicial magistrates investigate criminal offences and search for the truth. o In Germany, a breach of the judges’ duty to actively discover truth would amount to a procedural error which may provide grounds for an appeal. o Italy uses a blend of two systems.

• Having a separate law like the POCSO Act does not seem to be sufficient to dispense justice to a spectrum of victims who are not even capable of comprehending the trauma of sexual violence.

Suggestion:

• Investigative powers can be given to the judicial magistrates in cases of rape of children under 12 years of age.
• The investigative judicial (woman) magistrate could be assisted by a female medical doctor and an expert in child psychology.
• The report of such magistrate could be treated as a final piece of evidence and the accused may be given an opportunity to state and defend his version.