Rape Trial Challenges a Jam in India\'s Justice System

Rape Trial Challenges a Jam in India’s Justice System

Mansi Thapliyal/Reuters

A woman who said she was mindful of her security waited for a ride last week near New Delhi.

NEW DELHI â€" For Sonia Gandhi, India’s most powerful politician, the 23-year-old victim of the fatal gang rape last month “embodied the spirit of an aspirational India.”

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An officer guarded the court where five men are on trial in a fatal rape.

“We will ensure,” Ms. Gandhi pledged in a nationally broadcast speech on Sunday, “that she will not have died in vain.”

Ms. Gandhi’s vow sums up the challenges facing the Indian judicial system. In a South Delhi courtroom on Thursday, arguments are scheduled to begin in a trial for five men accused in the rape, which galvanized the nation and captured the attention of the world. The trial will take place in a “fast track” court for crimes against women that was set up in response to public furor over the assault.

But whether the trial can treat the defendants fairly and provide justice for the victim and her family while laying the groundwork for sweeping changes in India’s judiciary system remains very much an open question. The police say that the rape was a premeditated and vicious attack in which the five men and a teenager, who is being tried separately, raped the victim one by one and then tried to kill her and destroy evidence to cover up the crime. The men are charged with robbery, gang rape and murder, and could be sentenced to death by hanging if found guilty.

All five will plead not guilty, their lawyers said. The news media and outsiders have been barred from the courtroom and from reporting on the day-to-day proceedings, which is common in rape trials in India.

Rare in its reported savagery, the Dec. 16 rape on a moving bus in South Delhi propelled thousands of Indians into the streets to protest. They were outraged over not only the attack but also what many women describe as a pattern of harassment, assault and ill treatment that keeps them bound to a second-tier citizenship even as many increasingly educated and urbanized women are advancing in the workplace. It is a country, they note, where Ms. Gandhi is president of the governing Congress Party, yet hundreds of millions of other women are still trapped in a web of traditional strictures.

The government, by some measures, has responded forcefully. The rape “has left an indelible mark and shaken the conscience of the nation,” wrote India’s chief justice, Altamas Kabir, who in early January called for more fast-track courts similar to South Delhi’s. These cases need to be dealt with “expeditiously,” he wrote, to curb what he described as a “sharp increase” in violence against women. Already, several states have established such courts, and many others are expected to follow suit.

Even though the police are often reluctant to investigate rape and sexual assault allegations, the courts are badly backed up. More than 95,000 rape cases were awaiting trial in India at the beginning of 2011, according to government figures, but just 16 percent of them were resolved by the end of the year. Of the cases that go to trial, about 26 percent yield a conviction, half the rate in the United States or Britain. Women’s rights activists say the process often yields more trauma for the victim than punishment for the guilty.

In one extreme example, legal proceedings against dozens of men charged with the rape of a teenage girl in Kerala in 1995 are still under way. In August 2011, the victim, now in her 30s, asked that the proceedings be stopped, saying she could not bear to relive the crime yet again. The Kerala High Court refused, and the victim is expected to appear in court as a witness in February.

But creating a fast-track system to deal with rape cases like the fatal assault in Delhi highlights the shortcomings of the entire Indian judicial system, critics say, and may even add to the problem.

“Grotesque as this case has been,” said Rebecca John, a New Delhi criminal lawyer with 25 years of experience, “there have been many other grotesque examples.” By creating five fast-track courts for crimes against women, and pulling in judges to preside in them, the government has only increased the burden on other courts, she said.

If included in a United Nations study of 2008 data from 65 nations, India’s ratio of 14 judges per million people would have been the fourth-lowest, besting only Guatemala, Nicaragua and Kenya.

“The Indian judicial system tends to work pretty well, when the process is set in motion,” said Meenakshi Ganguly, South Asia director for Human Rights Watch. “The flaws lie in the delays” in getting cases heard, she said.

On Wednesday, a panel of legal experts formed in response to the protests over the New Delhi rape submitted a 650-page report suggesting, among other things, that stalking and voyeurism be punished by jail terms. Still, the report said poor governance, not poor legislation, was responsible for the shoddy justice delivered to women in India.

Adding more judges in India is a difficult and haphazard process, handled individually by states. “There are various issues that lead to posts of judges not being filled, ranging from budgetary constraints, to the lack of qualified candidates, to just apathy,” said Mrinal Satish, an associate professor at the National Law University in New Delhi.

While some see the Delhi trial as a model for handling crimes against women, it is different in many ways from most cases, lawyers and women’s activists said.

Unusually, there is a witness to the attack. The woman’s companion, 29, told the police what he remembered, but he was unconscious for some of the assault after being beaten with a metal rod that was also used against the woman, who died in a Singapore hospital from her injuries.

Second, the police acted quickly after the attack was reported, in part because of the media attention. They collected DNA evidence linking the five defendants to the attack, the prosecutor in the case said, including blood and semen found on their clothing, on the victim and in the bus.

The attack was also particularly brutal. Bite marks were discovered all over the woman, according to a court document. She was tortured with an iron rod inserted into her vagina and rectum. At one point, according to the police, one of the suspects pulled out some of her internal organs.

The trial will pit an eclectic group of defense lawyers, one of whom has courted controversy by alleging publicly that the rape was the victim’s fault, against one of Delhi’s most trusted public prosecutors, who also happens to be one of the most overworked.

Rajiv Mohan, the prosecutor, is handling about 150 cases, he said in an interview. He often juggles six or seven a day, he said.

Defenses mounted by the five accused will vary, their lawyers and others involved with the trial said. Two of the men, Pawan Gupta and Vinay Sharma, have offered to turn state’s witness, the police said.

A. P. Singh, a lawyer who represents Mr. Sharma and another defendant, Akshay Thakur, said Mr. Sharma was not on the bus when the attack occurred. M. L. Sharma, a lawyer who has publicly stated that “respectable” women do not get raped, is petitioning the Supreme Court to move the case out of Delhi, arguing that his single-named client, Mukesh, will not get a fair trial because of the intense publicity.

Veteran lawyers say the judge, Yogesh Khanna, is considered balanced and is known for trying to avoid unnecessary delays.

He will be tested. The rowdy, sometimes violent protests that shook Delhi included angry knots of citizens demanding hangings, even before the victim died. A hurried trial, followed by a knee-jerk death penalty verdict, would be a mistake, many say.

Reporting was contributed by Sruthi Gottipati, Niharika Mandhana and Malavika Vyawahare from New Delhi, and by Minu Ittyipe from Kochi, India.

A version of this article appeared in print on January 24, 2013, on page A6 of the New York edition with the headline: Trial in Rape Defies Delays That Torment India’s Courts.