Justice should now become a fundamental right

This article is authored by Bhuwan Ribhu, lawyer and child rights activist, New Delhi.

“Tareekh pe tareekh” will now forever be etched in the memory of the current generation as the hope and vision expressed by Union home minister Amit Shah on the floor of Parliament while passing the three criminal laws. This hope is that these laws, when implemented and duly enforced, will ensure the pursuit and delivery of justice.

Justice (Getty Images/iStockphoto)

However, justice is a state of equilibrium and when it is done, and seen to be done, it is much bigger than the process of criminal trial alone. Dispensation of justice and the implementation of laws depends on a large number of factors.

Justice delivery in child sexual abuse cases is a relevant case in point. As per data submitted before the Parliament, as of January 31, 2023, the number of pending Protection of Children from Sexual Offences Act (POCSO) cases in our courts stands at a staggering 2,43,237, while only 28,850 cases were disposed of in 2022 (as per National Crime Records Bureau, 2022). At this rate, it will take more than nine years to clear this backlog even if no new cases are added. Moreover, a mere 8,909 of the 2,68,038 POCSO cases (a mere three per cent) under trial resulted in conviction, in 2022. Even this three per cent is not the end of the legal process, and with no data available for pending appeals in higher courts, the long walk to justice continues. This current status is despite there being a robust policy framework and a law which prescribes time-bound completion of trials, infrastructure in the form of fast track special courts, and ample budgetary allocations.

Each of these stark numbers represent a child and a family awaiting justice. And these numbers are also a small drop in the ocean of unreported cases with research suggesting that up to one in four children in India getting sexually harassed or abused. This means that a large number of people are losing faith in the justice delivery mechanism, thus not reporting crimes committed against them, and are miles away from the laws, and the idea and delivery of justice.

As one of the first people who raised the issue of missing children in India in Nithari in August 2006, and who later assisted the Verma Committee on crimes against women and children, and subsequently also appeared before the Supreme Court (SC) for compulsory registration of FIRs in missing children cases, I believe that myopic interpretations of the law by the police and the courts have resulted in justice eluding many women and children in our country.

The police have to act when a crime is reported. A judge should not only be bound to see what is in front of him but has to see where justice and equity lie. In the missing children’s case, in 2013, the SC agreed that in certain situations it should be presumed that a crime has taken place and agreed with my interpretation that every missing child’s case should be treated as one of kidnapping or trafficking until proven otherwise. Before this, like in Nithari, a missing child’s case was not even registered and investigated by the police. This one shift in legal interpretation of the law towards justice led to thousands of traffickers being arrested and over one lakh children being saved annually from being trafficked and going missing. In the last decade, this Doctrine of Presumption of Crime became a cornerstone in the jurisprudence of ensuring access to rule of law.

Yet, for the children of Nithari—no one killed them. The recent case of the acquittal of the accused of the Nithari case after 17 years of painful yet hopeful wait, has left the parents of the victims aghast. This denial of justice leaves a void in society which questions our very notion of who we are.

Legal deterrence lies more in the certainty of punishment, than in the severity of it. The cycle of justice must result in closure for victims (and families), reformation of perpetrators, and deterrence for society. These cases of the children of Nithari and the lakhs that continue to wait in courts, pose more questions than answers.

Time is our greatest asset, as well as our greatest liability. The time taken to register an FIR, for rehabilitation, or compensation, or victim protection, or victim witness relocation or medical or mental health assistance, or time taken to dispose of appeals in higher courts – all form the justice delivery process. The lack of any of these is a perpetual crime of omission against a victim. This status of continued delays and denial of justice is re-victimisation of the victims and a violation of their rights.

It begs the question whether the citizen is a passive recipient of justice that is being provided to her/him as a responsibility of the State, or is justice an inalienable right of every citizen. If it is the latter, then a lack or denial of it, is a collective responsibility and failure of everyone, including the State. Therefore, this notion ought to change from the citizen being a recipient of justice as a State duty, to the citizen possessing the right to justice, in the form of a constitutional amendment that will explicitly define ‘a Fundamental Right to Justice’ (which is not an inherent part of other rights).

Justice as a fundamental right, that is not only an interpretation found in judicial orders, not only limited to a value or promise as enshrined in the Preamble of Constitution, or a duty of the State under Article 39, but as the basis of the notion of our society, and from which all the other Fundamental Rights, duties and laws follow, and are enforced.

The smallest outcome of this would be that victim is reintegrated in mainstream society, and the trial process is not limited to crime and punishment alone. Also, in the cases where the culprits are not convicted, these cases do not become dead and if a crime is committed, even if there is an acquittal, the case continues (or is reinvestigated) with the State having to ascertain that a crime does not go unpunished and an acquittal does not mean the closure of a case.

Today, India is well on its way to emerging as a global superpower. The Constitution of 1950, written and adopted immediately after Independence, was driven by the necessities of a newly formed Republic. It laid the platform and direction and brought us into the 21st century. But, today, when we are well on the path to becoming a ‘vishwaguru’, the time has come for us to look at the next 75 years as India’s time. And to have a ‘vision for the year 2100’ for India in the 22nd century as a global leader and a nation that ensures equality, freedom, growth and safety for all its citizens, with justice as the cornerstone of this vision.

This article is authored by Bhuwan Ribhu, lawyer and child rights activist, New Delhi.