Support for this petition will go a long way to change the procedures and practices followed in rape trials in Indian courts.
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Supreme Court of India Chief Justice of India
The Honourable Chief Justice of India,
Supreme Court of India,
Honourable Chief Justice of India,
This is a sincere and heartfelt appeal to the Supreme Court of India to take the lead in responding to the issues that have followed the dastardly sexual assault and murder of the 23-year-old medical student in Delhi on 16 December 2012, by instituting specific measures to the rid the judiciary of sexism, sexual harassment and other forms of gendered humiliation. This, we believe, cannot come only by judicial training measures, although these remain critical. We would urge the Supreme Court of India to take concrete steps in recognising a range of discriminatory practices against women and sexual minorities as instances of crimes of prejudice. We believe that the Supreme Court has a special duty in this time of despair and anger. We believe that it is within the power of the Supreme Court to make the changes recommended, which does not require legislative reform. Rather the reformulation of the existent code of conduct already in place as commended by the Indian Chief Justices Conference. It is imperative for such a conference to hear the voices of women judges and lawyers by organising a national level consultation to recommend how courtroom cultures and legal procedures may be changed to make the judiciary more gender just.
It is one month since the 23 year old was assaulted, and many more women have been sexually assaulted and/or killed during these thirty days. It is with great hope that we write to you. We do hope that the honourable Supreme Court will take concrete steps in changing the procedures and culture of the courts in India, which aid and abet sexist and misogynist practices, through an active process of auditing, reviewing and accountability. This would assure all survivors of sexual assault, and indeed the people of India that the judiciary mourns with us, by issuing "practice directions" as per recommendations given below, in the interest of complete justice and upholding women’s rights as enshrined in the Constitution of India.
1. Institute sexual harassment committees, for lawyers when faced by harassment by a fellow lawyer, a judge or any other person in the course of their practice, following the Vishaka judgment. Similarly, such committees must be constituted for women judges, with adequate representation of women judges.
2. Appointment of more women judges, women senior counsel and law officers at every level of the judiciary is urgently needed.
3. All efforts must be made to ensure that court buildings are well lit, planned and safe workplaces for women professionals. An internal helpline for women who may face any form of sexual harassment or sexual violence must be instituted. Build bathrooms for women and transgendered people in all courts. Put together a task force to make courts and courtrooms disability-friendly. Build crèches for children of women lawyers and staff to facilitate the right to work.
4. Set up special courts.
5. Allow the survivor to have a friend or relative, well wisher, social workers or lawyer to be with her throughout the proceedings and negotiate on her behalf with all state agencies. The person can help the survivor to refresh her memory and also be present in court during deposition. This person must be informed about all developments in the case so that the same can be communicated to the survivor or her relatives.
6. Create a distinct cadre of trained para legals, who are accredited. This cadre of para legals should keep the survivor informed of the progress of the case and acquaint the survivor and other witnesses with court procedures and related issues.
7. If special prosecutors are appointed, they must undergo a mandatory course that will qualify them to be special sexual assault prosecutors.
8. There should be a special waiting room for survivors in the special court. The waiting room should be away from the public entrance to the courtroom and the survivor must enter the courtroom from the special entrance meant for judges.
9. The requirement of a screen should be strictly followed so that the victim does not face the accused.
10. Record the oral testimony in the language that the rape survivor is fluent in and not in summary translation by non-native speakers of the language. Institute a court translator scheme in consultation with the National Translation Mission and the Centre for Indian Languages, for the accreditation and certification of court translators.
11. Instruct trial courts to examine disabled survivors of sexual assault and record their testimonies with the help of independent special educators or sign language interpreters.
12. Develop protocols on the nature of questions, and procedures to be followed in the case of cases affecting mentally challenged women.
13. Instruct Judges to intervene in humiliating cross-examination or examination-in-chief, prevent defence lawyers from asking irrelevant questions or badgering the witness—be this the survivor, the complainant or other expert witnesses.
14. Instruct Judges not to admit any medical evidence that claims to read past sexual history or penetrability of the vagina through gynaecological examination such as old tears or the unscientific and degrading finger test indicating how many fingers passed and how difficult or easy it was.
15. In the instance of mass crimes, insurgencies and other forms of collective violence, it should be assumed that women are at greater risk of sexual assault, and therefore, access to justice cannot be stationery.
16. In the instance, sexual violence has been established as torture, the custody of the woman must be divested from those accused of such torture—be this the police, army or any other security force. Such a woman must be given immediate medical attention. If she is charged with any offences, she should not be sent back to the custody of the very policemen who sexually tortured her. Rather, special arrangements, under the supervision of the court, should be made to ensure safety in judicial custody.
17. It should be mandatory for any case of custodial rape, sexual assault during communal violence, by army or any such security agency or sexual assault as a form of torture to be reported to the Supreme Court so that a monitoring procedure is set in place immediately. In other words, every such case must be treated as worthy of judicial monitoring.
18. There is an urgent need to improve the quality of trial court adjudication in rape cases. This requires reviewing and monitoring mechanisms, which go beyond simply measuring the numbers of cases handled by a particular judge.
Reviewing and monitoring mechanisms are needed to ensure that any preventative and protective legislation for women is implemented as per the letter and spirit of the law.