Tag: #amendment

Applicability of Fundamental Rights to the Constitution in Light of Article 368

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S.noContents
1.Introduction
2.Constant Turbulence Between Article 13 and Article 368
3.The Parliament’s Comeback
4.The Conflict Between the Judiciary and Former Prime Minister Indira Gandhi: 39th Amendment
5.The Contextual Constitution
6.Conclusion

The Preamble, which is incorporated into the basic structure of the Constitution, demonstrates the relevance of Article 368[1] even to the present day. Recent amendments to the Constitution concerning fundamental rights are made by Parliament. The Constitution, including its fundamental rights, was initially drafted in response to the socio-political requirements deemed necessary at the time. These requirements may not be sufficient or appropriate for the rapidly expanding socio-economic, technological, and legal climate of today. As a result, it is always necessary to amend the Constitution. 

For instance, the 86th Amendment to the Constitution in 2002 made the right to education a fundamental right. In a similar vein, Articles 19(f) and 31 of the Constitution were struck down by the 44th Amendment in 1978, rendering the right to property non-essential. The extent of Article 368’s authority to modify fundamental rights has been interpreted by higher  Indian courts. 

In Sajjan Singh v. State of Rajasthan[2], for instance, the dissenting opinion stated that Article  368 did not grant the Parliament absolute powers and could not be used indiscriminately to usurp citizens’ fundamental rights. Even though there is a lot of literature on how to look at  Article 368 from the point of view of changing the basic structure as a whole, very few recent cases have focused on specifically changing fundamental rights from a legal point of view.  Therefore, I as an author want to fill that knowledge gap. 

From Shankari Prasad v. Union of India[3] in the First Constitutional Amendment Act of 1951 to Waman Rao v. Union of India[4], I will aim to trace the path. I will sincerely put efforts into determining the reasoning behind the bench’s various decisions challenging or upholding certain Parliamentary amendments to fundamental rights, as well as include their own opinion on the subject in the analysis section. I will be using doctrinal methods for in-depth research, also I will address the principles of the law and the constitution, as well as provide a sociopolitical context for the decisions made. 

Introduction

The basic structure of the Indian Constitution includes the fundamental or essential elements that run throughout the document or serve as its foundation. It joins significant arrangements of our Constitution, without the ground standards is outlandish. 

Because of its goal of achieving equity, for instance, the 2019 Constitution (One Hundred and  Third Amendment) Act, which makes reservations for economically disadvantaged groups,  has implications for Article 14 of the Constitution, which is the first fundamental right.

Additionally, on February 4, 2022, the Rajya Sabha debated K.J. Alphons, a BJP Kerala MP,’s proposal to amend the Preamble of the Constitution with a private member’s bill. This was gone against by the RJD MP Manoj Jha and MDMK MP Vaiko in December 2021, on the grounds of abusing the standard in the Kesavananda judgment which was that law and order are essential for the fundamental construction of the Indian Constitution. 

As a result, Parliament would be unable to alter any aspect of the Constitution’s fundamental structure. Fundamental rights are included in the Constitution’s fundamental structure in Part III. According to A.V. Dicey, a nation is said to adhere to the rule of law only if it upholds citizens’ liberties. Article 368 of the Constitution both grants and restricts Parliament’s powers to amend specific sections of the Constitution. 

Constant Turbulence Between Article 13 and Article 368

First Constitutional  Amendment According to Article 13 of the Indian Constitution[5], the Parliament cannot enact laws that restrict, infringe, or violate the fundamental rights outlined in Part III. In contrast,  Parliament is empowered to amend specific sections of the Constitution by Article 368. There is still no answer to the question of whether the two articles can coexist harmoniously. 

The fundamental rights, Preamble, basic structure, and other elements necessary to regulate the three organs of governance and the Indian people are all encapsulated in the Constitution,  according to many. The amount of power Parliament has under Article 368 to amend the  Indian Constitution is symbolized by the scissors used to cut or change the cloth into something else. 

The Constitution only contained seven fundamental rights when the 1st Constitutional  Amendment Act of 1951 was enacted, including the right to property under Articles 31A and  31B[6], which was later eliminated by the 44th Constitutional Amendment. 

The introduction of this right at the time of independence was motivated by two reasons: first and foremost, to boost agricultural production; secondly, to provide farmers, cultivators, and the rural population, who were oppressed by the pre-independence zamindari system, with opportunities, land, and job security. 

They used socialist-welfarist methods and set limits on how much land a person could own to prevent too much land and power from being concentrated in a few hands; a term that is comparable to constitutionalism. In addition, the State was permitted to legally seize someone’s property instead of providing compensation for rehabilitation following displacement. 

A revolutionary policy of the Indian National Congress later led to the establishment of such an exploitative structure to close the gap between the widespread inequality in land ownership. Further changes were set up by the ideological group through the Agrarian Changes Council with Administrator J.C. Kumarappa, overcoming the need to keep the right to property as a key right in a free India.

The 9th Schedule and reasonable restrictions stipulated in Article 19(1)(g)[7] were also included in the First Amendment Act, making it possible for the government to completely or partially acquire the person of any individual. Many citizens were dissatisfied with this Act because it reduced the scope of the most important aspect of the Constitution—the fundamental rights— and gave the Centre too much power to interfere with their lives. 

They filed a case against this Amendment Act in the Supreme Court of India because the Parliament did not have the authority to change fundamental rights. This case became known as Shankari Prasad v. Union of India[8], which was a landmark decision. 

The Supreme Court held that Article 368 allowed Parliament to amend any of the fundamental rights through Constitutional Amendments and that the changes made by the first Constitutional Amendment stand. This proportion smothered the fight for control between the lawmaking body and the legal executive since they explained that Article 13  simply applied to common privileges and not Protected Revisions. 

Numerous state governments incorporated their respective Land Reforms Acts into the 9th Schedule of the Constitution as a result of this decision. This had a significant impact because, normally, any law that violates fundamental rights would be invalidated; however,  by including it in the 9th Schedule, the laws would not be invalidated regardless of whether they violate fundamental rights. 

In Sajjan Singh v. State of Rajasthan[9], this provision of the 17th Constitutional Amendment was challenged. With a 3:2 vote, the five-judge bench decided that the 17th Constitutional Amendment Act does not fall under Article 13. Chief Justice P.B. Gajendragadkar looked into the deeper intentions of the people who wrote the Constitution and concluded that they didn’t want to protect fundamental rights completely because they didn’t put in place a clause that said fundamental rights couldn’t be changed. As a result, both Shankari and Sajjan appeared to favour Article 368 over Article 13. 

The disagreeing assessment given by Equity M. Hidayatullah and Equity J. R. Mudholkar set forward the inquiry with regards to whether changing an essential element of the Constitution would be considered as a revision or as a revamping, and thus, whether the ability to roll out this improvement was presented by Article 368. 

This reexamining of the composers’ aim drove the Court to allude the case to a bigger seat,  forming it into the Golaknath v. State of Punjab[10], which tested the Sajjan choice. By the majority’s decision in Sajjan, the 11-judge bench ruled that the parliamentary powers granted by Article 368 were not absolute and that the Parliament cannot curtail fundamental rights because they are included in Part III, giving them a transcendental status outside of the  Parliament’s purview. In addition, it stated that any amendment violating a fundamental right granted by Part III is unconstitutional, restricting the Parliament’s authority and requiring a  judicial review. 

Golaknath, in contrast to Shankari and Sajjan, prioritized Article 13 over Article 368 because the Supreme Court ruled that Parliament can enact a Constitutional Amendment. This decision by a larger bench of the Supreme Court effectively overturned its previous two decisions and sided with those who opposed amending fundamental rights. 

The Parliament’s Comeback

The 24th Constitutional Amendment, which removed the right to property as a fundamental right that had been included in the 1st Constitutional  Amendment, was challenged in the courts shortly after Golaknath by a large number of cases brought by the general public. The Supreme Court had to clarify that Golaknath would apply retroactively to previous amendments to prevent all of this chaos. 

The Golaknath case narrowed the scope of Parliament’s powers, while the first constitutional amendment restricted the scope of fundamental rights. The decision to enact the 24th Constitutional Amendment, which effectively added a fourth sub-clause to both Articles 13 and 368, was made by Parliament to expand its power to amend. 

The 24th Amendment stated in Article 368(4) that if Parliament enacts another Constitutional  Amendment, it will not apply to Article 13, whereas Article 13(4) stated the opposite to reverse the Golaknath decision. As a result, following the passage of the 24th Amendment  Act, the position was that Parliament could alter any section of the Constitution, including fundamental rights. 

Following the 24th amendment, additional constitutional amendments were enacted to repeal previous amendments that restricted citizens’ rights. The 29th Amendment introduced land reforms, while the 25th Amendment restricted property rights. In 1947, the Privy Purse, a  payment made to ruling families to give up their powers and merge their princely states, was made obsolete by the 26th Constitutional Amendment. In Kesavananda Bharati v. State of Kerala[11] and Golaknath’s position as well, the 24th, 25th, 26th, and 29th Constitutional Amendments were challenged. 

The Supreme Court made it clear that Parliament has the full power to change fundamental rights even before the 24th and 26th Amendments to the Constitution. The 24th Constitutional Amendment, which clarified parliamentary powers, was also upheld by the  Court. In this instance, the issue of how much power the Parliament has over the applicability of fundamental rights came up once more. The Court decided to take a balanced approach in support of a harmonious interpretation, which is referred to as the basic structure doctrine. It did not investigate whether Article 13 or Article 368 is more powerful. 

The Conflict Between the Judiciary and Former Prime Minister Indira Gandhi: 39th Amendment

On the twelfth of June 1975, Allahabad High Court set out a verifiable choice wherein they suppressed the discretionary triumph of Indira Gandhi’s administration, referring to proof of constituent misrepresentation. They also decided that no one in her cabinet could hold an election office position for six years as punishment. 

After that, Indira Gandhi appealed to the Supreme Court. Just one day before the hearing, she enacted the 39th Constitutional Amendment Act and declared a national emergency on the grounds of internal unrest.

The 39th CAA resulted in the addition of Article 329A and the elimination of Article 71. The dispute over the election was still before the Court at this point. According to Article 329A,  an independent body would handle all electoral disputes involving the Speaker of the Lok  Sabha, the Prime Minister (at the time, Indira Gandhi), the President, or the Vice President. 

Because of the death of this CAA, the forthcoming legal dispute against her could as of now not be active. As a result, the 39th CAA’s goal was clear: to allow Indira Gandhi to continue serving as India’s Prime Minister without interference. The constituent outcomes incidentally showed that Janata Dal Party won the political decision overwhelmingly, making Morarji  Desai the new State head. 

As a result, Indira Gandhi was forced to resign from her position reluctantly. The ruling party then decided to remove Article 329A, which was found to be unconstitutional in the case of  Indira Gandhi v. Raj Narain[12], applying the principles of the Kesavananda case, to undo everything the previous government had done wrong, including the 39th CAA and the unsolicited national emergency. Article 71 was likewise brought back, which offered back the powers to attempt constituent questions to the High Court. 

The Contextual Constitution

After the emergency period under Indira Gandhi’s rule in  1975, the 42nd Amendment to the Constitution made a significant number of changes to prevent similar power abuses from occurring again. It underwent two significant modifications: To begin, it added sub-clause 4 to Article 31C, which discusses property rights; Second, it added paragraphs 4 and 5 to Article 368. 

Article 368(4) stated that Parliament can amend, alter, or remove any fundamental rights under Part III and cannot be subjected to judicial review like Article 31C(4). On the other hand, Article 31C(4) stated that any law could be put in Part IV under the Directive Principles of State Policy (DPSP), even if it violates fundamental rights under Part III. This made it immune to even someone challenging it before the courts. 

As a result, Parliament can add or change any provision in Parts III and IV. The Parliament was granted absolute amending powers by Article 368 (5). Since the legal powers were diminished and the decent methodology in Keshavananda, the 42nd Established Alteration was tested in Minerva Mills v. Union of India and Ors[13]. 

Conclusion

The petitioners in Minerva owned the Bombay Minerva Mills company, which the government occupied under the guise of nationalization. In this case, the Supreme Court  ruled that the 42nd Amendment and all of its amendments were unconstitutional because of  the following three fundamental characteristics: 

First, judicial review, in which rights granted by courts of law are regarded as fundamental  features and cannot be suppressed through an amendment by Parliament; 

Second, Parliament’s limited amending power, which means that Parliament cannot use its limited amending power to expand its capabilities; Thirdly, the balance between Parts III and IV must be maintained so that DPSPs and fundamental rights do not conflict.

All the Established Alteration Acts after the Kesavananda essential regulation case were tested in Waman Rao v. Union of India[14], where the most relevant issue that emerged under the watchful eye of the court was regardless of whether these alterations sabotaged the fundamental construction. 

The Court provided an odd solution to this question by stating that the Kesavananda-based basic structure test will be applied in future amendments and laws. As a result, the Court made it clear that any amendment to the Constitution made after April 24, 1973, can be challenged if it does not adhere to the basic structure doctrine. 

As a result, this case reaffirmed the significance of the Kesavananda rule by allowing  Parliament to alter a portion of the fabric—representing the Constitution—but not the entire fabric. Even though Parliament had the power to change any part of the Constitution,  including the Fundamental Rights, this did not mean that the Constitution’s fundamental structure could be changed even by a Constitutional Amendment. This shows how strong the  Constitution still is in the social and political context of today. 

Endnotes

  1. The Indian Constitution, Article 368
  2. Sajjan Singh v. State Of Rajasthan, 1965 AIR 845, 1965 SCR (1) 933
  3. Shankari Prasad v. Union of India, AIR. 1951 SC 458
  4. Waman Rao v. Union of India, (1981) 2 SCC 362
  5. The Indian Constitution, Article 13
  6. The Indian Constitution, Article 31(A) and Article 31(B)
  7. The Indian Constitution, Article 19(1)(g)
  8. Ibid 3
  9. Ibid 2
  10. Golak Nath v. State of Punjab, AIR. 1967, SC 1643
  11. Kesavanand Bharti v. State of Kerala, AIR. 1973 SC 1461
  12. Indira Gandhi v. Raj Narain, AIR 1975 S.C. 2299
  13. Minerva Mill Ltd. v. Union of India, (1980) 3 SCC, 625
  14. Ibid 4

This article is written by Shaurya Sharma, a third-year law student from Fairfield Institute of Technology and Management.

The Taxation Laws (Amendment) Bill, 2021

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Introduction

The Taxation Laws (Amendment) Bill 2021 was presented after India lost retrospective tax demand proceedings against Cairn Energy Plc. and Vodafone. The Taxation Laws (Amendment) Bill, 2021, was introduced in the Lok Sabha on August 5, 2021, by Nirmala Sitharaman, the Minister of Finance. Both the Income Tax Act of 1961 and the Finance Act of 2012 are amended by this bill.  The IT Act was revised in 2012 to impose a retrospective tax liability on income derived from the sale of shares of a foreign company. Effective 2021, this retrospective basis for taxation will be eliminated through the Taxation Amendment Bill. As part of the bill, any demand for “indirect transfer of Indian assets” made before May 28, 2012, are to be withdrawn or provide an undertaking to withdraw pending litigation, as well as an undertaking that no claim for cost, damages, interest or other compensation is to be made with the enactment of the bill. The proposed Taxation Laws (Amendment) Bill 2021 would also allow companies exposed to retrospective tax demands to be refunded the amount paid without interest thereon.

Background

What is retrospective taxation?

An enactment of retrospective taxation is government-enacted legislation that taxes specific products, items, or services, as well as deals, and collects money from businesses even before the legislation is enacted. Governments frequently amend tax laws retrospectively to clarify existing legislation, which can hurt businesses that misinterpreted the rules. Businesses that have taken advantage of loopholes in past laws have been taxed retrospectively in many countries, including the United States, the United Kingdom, the Netherlands, Canada, Belgium, Australia, and Italy.

The Vodafone – Hutchison Case

Vodafone paid $11 billion for a 67 percent share in Hutchison Whampoa in May 2007. This comprised Hutchison’s mobile telecommunications business as well as other Indian businesses. A demand was made by the Indian government initially of Rs 7,990 crore in capital gains and withholding tax from Vodafone in September of that year, claiming it should have deducted the TDS (Tax at Source) before making the payment to Hutchison. The demand notice was contested at the Bombay High Court, but the judges favored the Income Tax Department. Later, Vodafone Group challenged the judgment of the High Court in the Supreme Court, which ruled in 2012 that Vodafone’s interpretation of the Income Tax Act of 1961 was correct, thus preventing the company from paying taxes. Therefore, the question of taxation of gains arising from the transfer of shares of foreign companies, also known as “indirect transfers of Indian assets”, was the subject of protracted litigation. In 2012, the Supreme Court further stated and observed that the gains deriving from the indirect transfer of Indian assets are not taxed under the Income Tax Act’s current provisions.

Amendment to Finance Act, 2012

A retrospective amendment to Section 9 was enacted by the Finance Act of 2012. Explanations 4 and 5 were added to Section 9 (1) (i) of the Finance Act, with retrospective effect from the date of January 1, 1962. Gains deriving from the transfer or sale of shares or interest in a foreign firm are taxable in India if such shares, directly or indirectly, derive their value substantially from assets positioned in India, as per the amendment.

The Supreme Court pointed out in Vodafone’s case that the word “through” in section 9 does not indicate “as a result of.” Explanation 4 was added to address these concerns by clarifying that the term “through” in section 9 (1) (i) should mean and include “utilizing,” “in consequence of,” or “because of,” and shall be regarded to have always meant the above contentions.

A capital asset or asset situated in India is considered to have been disposed of in India, while income arising from such a transfer is deemed to be accrued or derived in India following explanation 5 to section 9 (1) (i) if;

  1. If the capital asset or asset is a share or of interest to the company incorporated outside India;
  2. The shares derive their value from the assets located within India; and
  3. The values may be derived from the assets situated within India both indirectly and directly

Analysis Of The Taxation Laws (Amendment) Act, 2021

CONSEQUENCES ON PENDING ASSESSMENT

The fourth proviso to Explanation 5 (also known as indirect transfer of assets) of Section 9 (1) (i) states that the provisions of Explanation 5 (indirect transfer of Indian assets) do not apply to income accruing or derived from indirect transfers of Indian assets made before May 28, 2012. When assets seated in India are indirectly transferred before the 28th of May 2012, Explanation 5 of Section 9 (1) (i) would not apply retrospectively. As a result, income derived from or originating from such an indirect transfer of Indian assets or capital assets is not taxable in India with effect to the Amendment. Thus, all the pending litigations concerning assessment or rectification relating to computation of income derived from indirect transfer of assets would be concluded despite any specific additions.

CONSEQUENCES ON CULMINATED ASSESSMENT

When assets situated in India are transferred indirectly before 28 May 2012, the retrospective effect of Explanation 5 to Section 9 (1) (i) is excluded. As a result, income derived from or originating from such an indirect transfer of assets or capital assets which are Indian is not taxable in India with effect to the Amendment. In the Sixth Proviso, if any amount becomes refundable to such a person, the person will be refunded, but no interest will be paid under section 244A.

Only those assessees’ who meet the following criteria will be granted relief in scenarios of completed assessments:

  1. In the event, the assessee has filed an appeal or writ petition before an appellate authority or the High Court or the Supreme Court against any order in reference to such income, he shall make a withdrawal or submit an undertaking for  withdrawal such appeal or writ petition;
  2. As per any law currently in force or under any agreement India has entered into with any other country or territory out of India, where the said participant has initiated an arbitration, conciliation, or mediation proceeding, or has given any notice thereof he must withdraw or furnish an undertaking to withdraw any claim he may have made in such proceedings or notice;
  3. An undertaking shall be provided by the mentioned person waiving any right that would be available to him otherwise under any law currently in force, or under any agreement entered into by India with any such country or territory outside India;
  4. Any other conditions as may be prescribed

Amendment To Section 119 Of Finance Act, 2012

Section 119 of the Finance Act of 2012 inserted a validation clause to validate all demands raised/notices sent in association with the indirect transfer of assets, stating that any decision of any Court, Tribunal, or other body, including the Supreme Court’s decision in Vodafone’s case, holding such indirect transfer to be outside the purview of section 9 (1) (i), will be disregarded.

By the introduction of the proviso to Section 119 of the Finance Act of 2012, the Act proposes a consequential adjustment to the aforesaid provision. It states that if a person meets specific circumstances, such as withdrawing or submitting an undertaking for the withdrawal of existing litigation and making a promise that no assert for costs, damages, or interest will be made, this section will no longer apply to them.

Conclusion

The government announced the repayment of about Rs 8,100 crore in levies collected while enforcing the 2012 amendment. In all circumstances where the demand for the tax was made for transactions conducted before May 28, 2012, the demand will be “nulled on fulfillment of specified requirements.” The 2012 amendment drew substantial criticism, particularly from international sectors, because it violated the principle of tax certainty by having a retrospective effect. With the application of the Amendment Act of 2021, to eliminate retrospective taxation the repercussions would be a huge boost to the investment ecosystem and to ensure the element of certainty in taxation. 

The present article is written by Aathira Pillai, the 5th year BLS LLB student of Dr. D. Y. Patil College of Law.

The present article is edited by Shubham Yadav, the 4th year Law student of Banasthali Vidyapith.

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Speedy Trial In Rape Cases: Its Importance and Prevalent Loopholes

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The present article has been written by Prateek Chandgothia, pursuing BA. LL.B. (1st year) from the Rajiv Gandhi National University of Law, Punjab.

India witnessed one of the gravest rape cases in December 2012 which shook the national capital and subsequently the whole of India. Wide-spread protests broke out through the country demanding the justice of the rape victim, who was designated with the title of Nirbhaya for the level of mental toughness and endurance portrayed by her. Various legislations were passed in the aftermath of the incident as the four accused were awarded the death penalty and were hanged to death on 20th March 2020. The 8-year long wait for justice paints a disturbing picture of the Indian criminal justice system and indicates the necessity of speedy trials in rape cases.

Legislative Analysis of Rape Laws

The Indian Penal Code criminalizes rape as a sexual offense under Section 375-377. Rape is defined under Section 375 of the IPC as “sexual intercourse with a woman against her will, without her consent, by coercion, misrepresentation or fraud or at a time when she has been intoxicated or duped or is of unsound mental health and in any case if she is under 18 years of age.” The Criminal Law (Second Amendment) Act was enacted in 1983 which marked a paradigm shift like the rape laws in India by strengthening the position of women in such cases. Section 114A was introduced in the Indian Evidence Act of 1872 which stated that it must be presumed that there is the absence of consent in certain prosecutions of rape if the victim says so. Furthermore, Section 228A was introduced in the IPC which makes it punishable to disclose the identity of the victim of certain offenses including rape. 

In the aftermath of the Nirbhaya Rape Case, The Criminal Law (Amendment) Act 2013 was enacted. It expanded the scope of rape by including offenses like the use of criminal force on a woman with intent to disrobe, voyeurism, stalking, use of unwelcome physical contact, words or gestures, demands, or requests for sexual favors, showing pornography against the will of a woman, or making sexual remarks. Along with the extension of the scope of rape, the punishments were also increased significantly through this amendment. The act increased jail terms in most sexual assault cases and also provided for the death penalty in rape cases that cause the death of the victim or leaves her in a vegetative state. The punishment of gang rape was increased to 20 years to life imprisonment from 10 years to life imprisonment. The punishment of stalking was set at imprisonment for 3 years and punishment for the acid attack was set at 10 years of imprisonment. The amendments were not confined to the Indian Penal Code as the 172nd Law Commission report led to amendments in the Indian Evidence (Amendment) Act of 2002 which further strengthened the position of women in rape cases. The new provision barred putting questions in the cross-examination of the victim as to her general ‘immoral character’ in rape or attempt to rape cases. However, the effect of these legislations has been negligible in terms of statistics as according to the National Crime Record Bureau, a woman is raped every 16 minutes and 88 rape cases are recorded daily. In 2019 alone, 32,033 rape cases were recorded. Therefore, these legislations have not deterred the occurrence of rape cases in India.

Fast Track Courts: A Reality Check

Fast Courts have been a part of the Indian legal system since 2000 which gained significance after the Nirbhaya Rape Case in 2012. The main objective of these courts was to deal with the crime against women, child trafficking under POCSO Act, crime against senior citizens, crime against the disabled, and other heinous crimes. As quoted by the 11th Finance Commission of 2000, the fast-track courts are recommended: “to substantially bring down, if not eliminate, pendency in the district and subordinate courts over the next five years”.

However, various statistics indicate an entirely contrasting situation. According to the NCRB data, trials in fast-track courts take longer than trials in regular courts. It is reported that out of more than 28,000 trials completed in India’s fast-track courts in 2018, only 22% took less than a year to complete. This is the lowest percentage among all kinds of courts including SC/ ST courts, Additional Session Judge Courts, District/ Session Judge Courts, POCSO Court, Sub-Judge Courts, Special Courts, and Special Judicial Magistrates. Furthermore, around 42% of the total trials took more than 3 years to complete, while 17% took more than five years to complete. These statistics indicate that the fast-track courts have failed in achieving the very objective for which they were established.

It is essential to note that the mere establishment of fast-track courts is not sufficient in countering the inadvertent delays in the trial of the rape cases. Various inefficiencies have infested the working and establishment of the fast-track courts. Fast-track courts have been established under the centrally sponsored scheme of allocation of funds which is overseen by the Department of Justice. The scheme was established in 1993 stating that 60% of the funds must come from the center and 40% of the funds must come from the states. In 2020-21, Rs. 767 crores were approved for the construction of 1,023 fast-track courts under The POCSO act, 2012 based on the centrally sponsored scheme. The particular scheme leads to disparity in fund distribution among states which was evident when the Maharashtra Government sanctioned the construction of 138 courts with the expected cost of Rs. 100 crores. This extracts Rs. 60 crores as the share from the center leaving only on an average, a sum of Rs. 26 crores for the other states. 

Various veterans in the field of criminal law have pointed out various flaws in the mechanism of fast-track courts indicating that they are similar to the regular courts, if not worse. It is stated that the nomenclature of ‘fast-track’ courts exists just in the name and not in the functioning of the courts as the judges and the procedure are identical in nature. Various procedural inefficiencies have been pointed out like the witnesses not coming on time, lawyers not turning up and while the judges don’t have the power to discipline them, the bar councils don’t take any action against them. Recording of evidence is a major stage in a trial that concerns grave violations and plays a significant role in the delay in the delivery of judgment. The longer duration of trials in special fast-tracked courts has been justified by the serious and complicated nature of the cases they deal with as they require recording of more evidence than regular cases.

Effective legal assistance is an important factor missing from the remedies provided to sexual assault victims. The Ministry of Health and Family Welfare issued guidelines for medico-legal care for survivors of sexual violence intending to standardize healthcare professionals’ examination and treatment of sexual assault survivors. The guidelines provide scientific medical information and processes that aid in correcting pervasive myths. However, under the federal structure of India, health is a state subject and therefore, the states are not bound to follow the said guidelines. The Hon’ble Supreme Court in a 1994 case ruled that police should provide sexual assault victims legal assistance and keep a list of legal aid options which do often not conform to. 

Moreover, victimization of the aggrieved is still prevalent at great lengths in the Indian Legal system and the social fabric of the country. The delay in judgment delivery often leads to the promotion of speculations which encourage issues like victim-blaming, dilution of passion towards a goal, increased mental agony for the victim and their family. Therefore, it is the need of the hour to recognize these flaws and implement corrective measures to ensure speedy trials in rape cases.

Conclusion 

Despite the progressive development in legislations and specialized fast-track courts, the main objective, which is a speedy trial, remains unachieved to this day. Various state and center initiatives have fallen through mainly because of the lack of monitoring mechanisms and frameworks. In view of this article, in order to ensure the implementation of speedy trials in rape cases can be a reality only if an efficient mechanism that involves suitable procedural laws and specialized judges, is implemented.  

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