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Speeding up sexual assault trials: a constructive critique of India's fast-track courts.

B. Specialization as an Instrument of Normative Change

Arguably, the fast-track courts influence norms simply by existing because they demonstrate state action to address escalating sexual violence against women. Similarly, the passage of stronger legislation also influences norms over time. Combining stronger laws with more effective enforcement is more likely to destabilize the socio-cultural norms that generate sexual violence. However, normative change is notoriously sluggish and is even slower than the lamented pace of criminal trials. Moreover, the fast-track courts are not explicitly supported by national legislation, and normative change is not an explicit objective of the fast-track court system. Without a normative commitment, fast-track courts risk perpetuating--within the very system designed to combat gender-based violence--the same harmful attitudes and norms that pervade society and cause sexual violence against women to begin with.

Although commentators have lauded the Indian High Courts and Supreme Court for their progressive stances towards women's rights, most of India's population only has access to the lower tier of the judiciary. (138) The lower tier courts, such as district and sub-district courts, have overwhelming dockets and inadequate staffing, and are both the first and last resort for most Indians. (139) When sexual assault cases are heard before judges in these courts, the results can be a mixed bag. Well-meaning jurists will attempt to rule, not according to the law and constitutional mandates, but rather in accordance with their perception of prevalent social norms. (140) In contrast, the specialized nature of fast-track courts allow judicial officers and court staff to gain expertise in adjudicating gender-based sexual crimes. The following example demonstrates the importance of training to avoid well-meaning adjudicators from making heavily biased decisions in sexual violence cases.

The Indian judiciary played a key role in the reform of the legal rule that required corroboration of a sexual assault victim's testimony. The basis for the judiciary's activism was the belief that

   Corroboration may be considered essential to establish a sexual
   offence in the backdrop of the social ecology of the Western World.
   It is wholly unnecessary to import the said concept on a turn-key
   basis and to transplate [sic] it on the Indian soil regardless of
   the altogether different atmosphere, attitudes, mores, responses of
   the Indian Society, and its profile. (141)

In other words, it was inconceivable that an Indian woman would level a false accusation of sexual assault or rape because of the pervasive taboo of any topic dealing with sexuality in Indian society. In more detail, the court listed the many reasons why an Indian woman would be reluctant to bring a charge of sexual assault, much less fabricate a false one:

(1) A girl or a woman in the tradition bound non-permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance. With a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12 [sic] The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent. (142)

Even though the judiciary's effort to eliminate the corroboration requirement was beneficial to victims of sexual crime, the logic underlying the reform underscored stereotyped notions of femininity.

Another example of judicial initiative that is indicative of societal bias involves a case where a sixteen-year-old girl was raped by a neighbor's son who was then arrested. (143) Subsequently, the parents of both arranged for them to be wed. (144) When bail was requested on the grounds that the young suspect had agreed to marry the girl he raped, the judge realized that the girl would not proceed with the case against her new fiance and decided to grant bail. In so doing, the Judge "warned the boy that ... if he doesn't keep his promise and marry the girl, the court will take action." (145) Critics of such adjudication have said that

   Instead of promoting a marital union between the rapist and the
   victim, the judge should have educated the girl and her family
   about the criminality of this behavior. He ought to have been at
   the forefront of protecting the girl's interests and her rights,
   and should have had the perpetrator arrested and indicted on
   criminal charges of sexual assault. The judge's actions of
   encouraging and endorsing a marriage between the two, taken in the
   name of harmonizing a 'social situation,' only reifies norms of
   inequality and perpetuates existing discrimination, sexism, and
   sexual violence. (146)

The fast-track courts may mitigate some of the harm done by untrained, though well-meaning, lower court judges by removing gender-based violence cases from the general pool.

Judicial attitudes toward rape reveal that judges conceptualize rape in the same way as the society in which they dwell,

   not as a violation of an individual woman's right to bodily
   autonomy, but rather, in a more traditional and patriarchal
   discourse, as a violation of a woman's honor. This honor is in turn
   closely associated with a family's honor, and the honor of the
   broader community. (147)

For instance, in Jugendra Singh v. State of U.P., the Indian Supreme Court reasoned that, "an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one's physical frame is his or her temple. No one has any right of encroachment." (148) Such rhetoric illustrates a regime in which women are not autonomous and where their worth is defined exclusively vis-a-vis their role as wives, mothers, sisters and daughters. Women enjoy basic human rights to the extent that their male family members do. To shed these biases and attitudes, which undermine the goal of empowering and rehabilitating victims, proper training is essential.

In order to achieve meaningful success in the long-term, fast-track courts for sexual violence must issue decisions that espouse the right reasoning and rhetoric; otherwise they risk falling prey to the same weaknesses and prejudices that create sexual violence in the first place. The conclusions and recommendations section of the Justice Verma Report states:

2. Speedy justice is not merely an aspect of the right to life with dignity, but is essential for efficacy of the law and its desired impact, as well as for prevention of its violation.

3. Available personnel of the judiciary and the infrastructure, with a few systemic changes can, at least, reduce half the burden of arrears in courts contributing to delays in enforcing the law of the land. Judge strength can be increased in phases without diluting their quality. Our suggestion of eminent retired judges being appointed as ad hoc judges will solve this problem.

4. More effective control of the subordinate judiciary by the responsibility vested in the High Courts would ensure improved performance of the subordinate judiciary, which is the cutting edge of the justice delivery system. The High Courts have the pivotal role in the administration of justice by virtue of Article 235 of the Constitution. They have to lead by practice in addition to precept. The restatement of values of judicial life is a charter of faith for every judicial functionary at all levels.


9. Practically every serious breach of the rule of law can be traced to the failure of performance by the persons responsible for its implementation. The undisputed facts in public knowledge relating to the Delhi gang rape of December 16, 2012 unmistakably disclose the failure of many public functionaries responsible for traffic regulation, maintenance of law and order and, more importantly, their low and skewed priority of dealing with complaints of sexual assault. (149)

Nevertheless, the initial results of the fast-track courts suggest that the Justice Verma Report's recommendations were only adopted superficially (if at all) and out of context. (150) The problem with staffing fast-track courts with retired judges, for example, is that these judges lack gender-sensitivity training, and are unfamiliar with the appropriate approach to sexual assault trials that would ensure the wellbeing of victims in such trials. In emphasizing the judiciary's inclination to issue harsh sentencing against defendants convicted of sexual crimes, the report indirectly draws attention to several judicial decisions wherein the judge demonstrates explicit bias and prejudice against female rape victims. (151)


Devoting resources, albeit on an ad hoc basis, to create specialized courts focused on violence against women demonstrates that sexual crime will not go unpunished and its victims will not be overlooked. (152) However, from a normative standpoint, it is imperative to also consider the training of the "specialist" judges and staff to handle their cases. The success of specialized courts, albeit outside the fast-track context, is based on certain best practices which should be incorporated in India's fast-track courts at an early stage to "develop model protocols that guide all further coordinated intervention to prevent and address sexual assault." (153) This is particularly critical as the fast-track courts rapidly proliferate across India.

Perhaps the best-known, if not most similar, (154) iteration of specialized courts focused on gender violence that pre-date the Indian fast-track courts are the Problem-Solving Courts introduced in the United States in 1946 by Judge Anna Moscowitz Kross in the New York City's Magistrates Court system. (155) A longtime women's rights activist, Judge Kross began by campaigning against the New York Women's Court, which handled cases involving sex workers. (156) Then, using the existing framework of the Magistrates' Courts, she created a new venue, called the Home Term Court Part for the prosecution of non-felony domestic violence. (157) This precursor to modern criminal domestic violence courts was problematic because it reinforced heteronormative, white, upper-class values and also downplayed the safety and security of victims while emphasizing rehabilitation for defendants. In other words, it reinforced conceptions of women "as wives, mothers, and homemakers"--that is, relative to their male family members. (158)

Decades later, spurred by the rapid increase in domestic violence cases and the decline in resources, the prosecution of such crimes was revised to include the creation of specialized courts. (159) The district court in Quincy, Massachusetts opened in 1987 and was the first venue to offer specialized processing of criminal domestic abuse prosecutions in the modern era. (160) Unlike the Home Term Court, it focused on empowering victims and offering an integrated approach towards combating domestic violence in the court system. (161) The system was deemed successful when the number of deaths from battering declined in 1991. (162) Future courts, including the Dorchester Domestic Violence Court--which is the only existing specialized court in Massachusetts--learned from the Quincy example and addressed flaws such as the confusion between criminal and civil matters and the resulting "web of jurisdictional limitations." (163)

Following the trend of "problem-solving" courts, the first full-fledged domestic violence court was established in Brooklyn, New York in 1996. (164) This court, which later served as the model for similar courts across the country, "featured a single presiding judge, a fixed prosecutorial team, and a court staff who received special training in domestic violence issues." (165) Important elements of the court included special training not just for court personnel but a broader educational campaign to "change the way the criminal justice community viewed domestic violence." (166)

Contemporary iterations of specialized courts combine the following best practices that can guide fast-track courts: (1) Better information made available to judicial staff through training and efficient delivery of comprehensive information from the investigative process (including information about the physical and psychological health of defendants and victims, their education, employment, health, mental illness, and other issues for justice officials); (2) Community engagement with the public to encourage trust and cooperation between the judicial system and the general public; (3) Collaboration between legal officials (judges, prosecutors, attorneys), social service providers, victim groups, and schools to ensure consistency and avoid redundancy; (4) Individualized focus on justice to ensure victims' privacy and willingness to testify, as well as to ensure victims are receiving social services and support to aid in their recovery; (5) Ongoing outcome evaluation to measure the relative success of the specialized courts against their non-specialized counterparts, to measure cost versus benefit and to ensure adaptability based on changing needs. (167) Each is discussed below in more detail.

A. Training

Judges in the fast-track court system in India are asked to play an active role in the proceedings, stepping in for the prosecutor to elicit the truth and ensure justice. Therefore, that fast-track judges are carefully chosen and properly trained is at least as important as reducing docket sizes. (168)

In addition to gender training, judicial officers in the fast-track court system must receive training regarding caste issues. Some commentators argue that an affirmative action program known as the government reservation system should be extended to the judiciary to ensure that there are low-caste judges in the system. (169) The hope is that including low-caste judges will minimize and eventually eliminate the implicit and explicit caste-centric biases that are present in judicial decision making. (170)

While the pool of retired judges earmarked for the earlier iteration of non-specialized fast-track courts may present an accessible option for staffing the specialized fast-track courts, their selection process must be carefully articulated to mitigate the dual threats of inherent bias and lack of oversight. Judges must be carefully vetted to ensure an unbiased and open-minded approach to adjudication. This can be accomplished through review of judicial decisions issued during the tenure of the judge. The selected judges should undergo mandatory training that consists of gender-sensitization and exposure to sexual assault scenarios. In this way, the biases that have historically been present in Indian judicial decision-making will be minimized.

Recognizing the need for judicial training in cases relating to women, India's National Commission on Women created a training manual and sponsored a workshop called "Gender-Sensitization of Judicial Officers." (171) The National Commission for Women has a constitutional and statutory mandate and was established in 1992. (172) Headed by a Chairperson appointed by the President of India, the Commission is empowered to investigate and ensure compliance with laws relating to women. Under the leadership of Chairwoman Vibha Parthasarathy, the Commission rolled out this training program for judicial officers at all levels in June 2001. The training workshop covers topics ranging from gender equality in the workforce to the treatment of women prisoners and includes a section devoted entirely to the crime of rape and violence against women more generally.

The training emphasizes the need for gender-sensitizing trainings for judges in part because they are members of the same society that produces other actors in the criminal justice system. Therefore, "they also cannot be entirely free from the value system, the prejudices, the biases and stereotypical views." (173) The goal of gender-sensitizing programs is to prevent the judges' biased views from being reflected in the evaluation of evidence and formulation of judgments. (174)

Moreover, training judges on implementing victim or witness protection programs and providing holistic support to the victim over the course of the trial can also reduce the likelihood of victim withdrawal. Engaging with the judicial system can either prove cathartic for victims and aid in rebuilding their lives, or result in further victimization and agony:

   Perhaps the most agonizing experience for victims involves dealing
   with the criminal justice system if and when an offender is
   apprehended. At this level, the crime is considered to have been
   committed against the state, and victims become witnesses to the
   crimes. This procedure is very difficult for the crime victim to
   understand and come to terms with, because in the victim's mind, he
   or she is the one who has suffered emotionally, physically,
   psychologically and financially. At this stage of the process, a
   victim can sometimes feel that he or she is losing complete control
   because he or she is not directly involved in the prosecution or
   sentencing of the offender. However, participation in the criminal
   justice system can aid victims in rebuilding their lives. If
   victims are kept well-informed about the criminal proceedings and
   feel that they have a voice in the process, they will feel that
   they are a part of a team effort. This added effort enables victims
   to understand the judicial process and helps to return to them a
   sense of control to their lives and circumstances. (175)

Judicial training can help ensure that victims have a positive experience with the criminal justice system. As a result, victims will be more likely to participate in the deterrent impact that fast-track courts are intended to have on crime.

The concept of judicial training with respect to women's issues is not new to India. Between 1996 and 2002, a British-Indian initiative called The Indo British Gender and Law Education for the Judiciary project was undertaken to provide gender education of lower-level judges. (176) Thirty-one male and twelve female District and Sessions court judges from all over India were selected to participate by their respective High Courts. (177) The main objectives of this educational project aimed to:

   Facilitate discussion of gender issues by using both national and
   international research and experience; to develop suitable training
   materials which would be used initially to train a core of key
   judicial staff and be modified thereafter for incorporation into
   the common curriculum for judicial officers being developed by the
   National Judicial Academy [an institution set up pursuant to the
   Indian Supreme Court's ruling in judges Association v. Union of
   India (1991)]. (178)

The British director of the project, Ann Stewart, later interviewed the participants who said the training had proved invaluable and opened their eyes to a host of issues relating to gender in their courtrooms. For the first time, judges could

   identify inequalities being faced by women which they now
   recognised they had ignored as 'mere routine behaviour' before.
   This new understanding translated into actions such as trying to
   compensate for procedural delays and 'adopting procedures and
   methods which enable women, children and infirm persons to come
   forward and give evidence to their satisfaction.' They took a fresh
   approach to the appreciation of evidence recognising that the way
   in which the evidence is given can have a crucial bearing on the
   weight given to it. They reported that they were less concerned
   with 'minor omissions and contradictions' in witnesses' evidence in
   rape cases. They suggested that they are able to understand how
   difficult it is to give evidence in such cases. 'I realise that
   before the training I was stereotyping the witness expecting her to
   respond as I would. Now I appreciate evidence from the victim's
   position.' They were much more vigilant in ensuring that cross
   examination of victims was 'restricted and to the point.' They are
   more aware of the gender context and take care to avoid
   stereotyping. (179)

The Justice Verma Report has also urged the government to enact judicial reforms to ensure that "properly sensitized judges" conduct rape trials in fast-track courts. (180) The Justice Verma Report recommends that the Chief Justice of the High Court select judges to serve on these courts and that their workload be conscientiously allocated. Above all, in-camera trials must aim to create a friendly and non-hostile environment for a victim who must not be made to re-live the trauma of rape due to judicial negligence or insensitivity. While the Justice Verma Report is somewhat heavy-handed in prescribing involvement by the judiciary in several areas, the recommendation that High Courts issue appropriate guidelines for incamera proceedings in sexual assault cases is well placed. (181)

Based on the experiences of the specialized domestic violence courts and related mechanisms, a combination of specialized training for judges and court staff, and an effort to educate the public about sexual crime within the justice system will ensure the efficacy and long-term success of the Indian fast-track courts. Training and increased judicial sensitivity must be hallmarks of these fast-track courts, which engage judges or teams of judges to hear cases about sexual crime exclusively or as their primary assignment. These specially trained judges will not only relate better to victims but will also have the ability to better sanction perpetrators. As in the domestic violence context, greater judicial oversight in rape cases will give victims and members of the public greater faith in the justice system overall.

Fast-track judges have already seen the benefits of enhanced training when provided. "There is also a trickle-down effect as the judge serves as an example for the rest of the staff." (182) One presiding judge in Delhi observed that, "being placed in a fast-track court gives [a judge] the freedom to hold regular meetings with her staff to help them to understand the nature of cases being handled." (183)

B. Community Engagement

Traditionally, courts maintain distance from their local communities in order to maintain impartiality. The U.S. specialized problem-solving courts consciously deviated from this model to focus on community engagement because communities are a source of valuable information. By fostering trust in the system, community engagement made members of the public more likely to support and participate in court proceedings. (184) Similar considerations caused nascent judicial bodies in transitional or post-conflict states to focus on community engagement as well. (185) Community engagement for the fast-track courts is critical, particularly in rural parts of the country.

This is due to the strong community-based informal justice system that pervades rural India and poses significant challenges to the normative progress and other benefits that fast-track courts can render. Informal justice systems play an integral role in the socio-legal fabric of many legally pluralist societies. In India, these informal legal systems often predate formal courts of law, and are unlikely to cease their traditional practices, many of which involve long-held beliefs about the inferiority and vulnerability women. As a result, these systems can pose significant obstacles for normative change.

India's informal system of justice is comprised of "caste panchayats," (186) a traditional, community-based system of governance that co-existed with more formal, colonial-style national governance institutions. Today, "[t]hough not formally recognized by law, India's 'caste panchayats,' each made up of influential men from a particular caste or village, function like alternative courts." (187) At best, panchayats offer victims of sexual violence a more--or even the only--accessible avenue for redress. At worst, panchayats are an unregulated and unreliable source of "justice" that runs counter to the judicial principles and legal theories espoused by formal courts.

Panchayats are generally more accessible than typical courts of law, particularly in areas with large rural or transient populations. They are also less resource-intensive, and therefore more sustainable in areas with limited judicial budgets. In India, such informal justice systems are thriving and often represent the first and last resort for victims of crime. (188) In a system where social norms leading to gender violence have yet to catch up with laws on the books banning it, informal justice--which operates in places where social norms thrive unchecked, information dissemination is irregular, and the force of law is unreliable--is a thorny counterpart to the formal justice system. Informal systems are not equipped, as things stand, to address the socio-cultural impetus for gender violence that is endemic or inherent to the society.

Moreover, when addressing gender violence, India's informal justice system oscillates between radically divergent systems of (1) retribution, focused exclusively on punishing the offender to exact revenge rather than deter future crime, (189) and (2) distorted "restorative justice," focused effectively on "restoring" the offender through forgiveness. (190) These objectives underscore the cultural and social norms that accept gender inequality and undermine the potential for fast-track courts to deter sexual crime by changing these norms.

Indeed, this understanding of restorative justice, or custom of "forgiveness" which pervades the informal justice system in India, has come under fire from women's rights quarters even in the context of two of the most renown transitional justice regimes--namely in post-conflict Sierra Leone and post-apartheid South Africa. In Sierra Leone, the transitional justice regime granted blanket amnesties for horrific crimes of gender violence in the belief that it was necessary for the sake of peace and reconciliation. Instead, amnesties reinforced a culture of impunity and encouraged future crimes; indeed, brutal acts of violence continued unabated. (191) Critics of South Africa's Truth and Reconciliation Commission--a restorative justice response to address widespread human rights violations in the aftermath of the apartheid regime--have contended that "restorative justice unfairly tars legitimate demands for retribution as atavistic vengefulness and thus short-changes victims." (192) Like the victims in Sierra Leone and South Africa, the victims of sexual violence in rural India may feel "pressured" by their communities and the informal justice system to "forgive offenders before they are psychologically ready to do so." (193) By actively engaging with the informal justice system, the fast-track courts can mitigate some of this harm. Through their association with the undeniably well-established informal justice system, the fast-track courts will also gain visibility and perhaps appear more accessible to victims.

C. Collaborative Partnerships

A spokesperson at Delhi State Legal Services Authority, a statutory agency that provides indigent legal aid in Delhi, remarked that "When fast-track courts were conceived, was any thought given to fast-tracking investigation or providing a special procedure different from the routine procedure? A holistic approach is missing." (194) Collaborative partnerships address these concerns in two ways. First, fast-track courts should incorporate the relevant actors into their daily operations. A thoughtful collaborative approach would minimize the distance between law enforcement investigators, prosecutors, victims' advocates, and even defense attorneys in order to reinforce the speed and underlying efficiency of fast-track trials. Second, fast-track courts should approach community engagement from a collaborative perspective--in other words, the previously discussed community engagement between fast-track courts and informal justice systems should be a bilateral effort, with give and take on both sides.

In terms of incorporating relevant actors into their daily operations, the U.S. specialized problem-solving courts achieve this by building on the central position that courts occupy in a complex system that involves many actors. As with community engagement, the goal of collaborative partnerships is information exchange and building trust. (195) Collaborative partnerships can target specific individuals or agencies rather than a community as a whole.

Borrowing from this model, fast-track courts should conscientiously create avenues for law enforcement investigators, health care providers, social workers, prosecutors, and defense attorneys to work together in the day-to-day administration of the fast-track courts. In addition to facilitating information exchange and building trust in the courts, collaborative partnerships offer benefits on behalf of victim autonomy, fundamental human rights, and physical security. (196) Collaborative partnerships also serve the interest of speeding up prosecutions by streamlining the judicial process.

Adopting a collaborative approach to address escalating sexual violence can also appease concerns over the feminist-police/judicial power alliance, which focuses on the criminal system as a remedy for sexual assault and negatively impacts women's agency by casting them as victims. (197) As one scholar has argued, "rape reform's myopic focus on women as victims runs counter to a thick view of female autonomy." (198) Although most scholarship has addressed the American criminal justice system, arguably the most punitive in the world, the same critique holds true in India. (199) That said, perhaps it is true that the benefits of heavy criminalization of rape and strengthening state-involvement in sexual behavior outweighs any negative effects on agency and autonomy. (200) Moreover, it is also possible that criminal law can punish rapists "without relegating women survivors to the status of objectified child-like victims." (201)

The specialized domestic violence court in Brooklyn showed marked success in just five years, according to the Urban Institute's Justice Policy Center, (202) and has served as a model for nearly thirty other domestic violence courts in other New York jurisdictions. (203) In addition to providing special training to all court staff, the domestic violence courts have made a concerted effort to provide more comprehensive and holistic responses to domestic violence crimes. (204) They have done so by coordinating with so-called court "partners,"--i.e. other agents of civil society who could positively influence the problem of domestic violence, namely, judges, court personnel, victim advocates, prosecutors, defense attorneys, probation and parole officers, representatives from batterers programs, and social service agencies. (205) Such a collaborative approach can also be transposed to the Indian fast-track system and may serve to further alleviate the burden on the judiciary's limited resources.

In the United Kingdom, reformers have recognized the need to speed up the process of criminal trials for domestic violence cases. (206) Indeed one of the main goals for implementing specialized courts is to accelerate the process from initial charge to final appearance. The length of time has decreased significantly with the advent of such special courts. (207) Additionally, some good practices can further aid in reducing the duration of trials and to minimize delays--whether induced by defense tactics designed to make a victim withdraw or stemming from legitimate causes. (208)

In India, communication between the various stakeholders in the prosecution of sexual crime is muddled. A government spokesperson involved with Delhi's sexual crime fast-track courts has admitted that the various criminal justice agencies involved "never meet ... we need to communicate." (209) Some best practices that Indian fast-track courts can implement to minimize delays include: First, the presence in court of a specialist police officer able to respond quickly to the court's requests for information and action. Requests might include initiating risk assessments, or tracking down missing evidence. (210) Second, increased cooperation between the police and victims' advocates facilitates information sharing and ensures that the court has immediate access to the most accurate information. (211) Third, court clerks must maintain clear and detailed logs of court proceedings and keep track of anv related parallel proceedings in civil courts. (212)

D. Collaborative Community Engagement

With respect to the community engagement aspect of collaborative partnerships, fast-track courts should actively integrate informal justice systems, or at least certain elements, into the formal, fast-track system. Members of the fast-track court system can look to Sierra Leone as an example of a developing nation where formal and informal justice systems worked in tandem for the common goal of reducing sexual violence against women.

Like India, Sierra Leone has a bifurcated legal system--a formal system based on the laws of the former colonial master, and an informal system based on "customary" norms derived from traditional approaches to justice. (213) Formal courts are concentrated in the nation's capital and only a handful of magistrates and high court judges sit in courts in rural areas. Access to justice in the countryside is therefore scarce, and made worse by the fact that there are only one hundred practicing lawyers in the country. (214) As a result, rural "chiefdoms" commonly take justice into their own hands by resolving disputes through "customary" courts. Although these courts are required by law to reserve serious crimes carrying longer sentences and higher monetary fines for the formal courts, this jurisdictional boundary has not always been respected. (215) Moreover, the few remaining lawyers in Sierra Leone are forbidden from practicing in customary courts at the chiefdom level. (216) Consequently, the country's rural system of justice--administered primarily through informal courts--exhibits draconian tendencies. (217)

Inspired by the success of paralegal services programs in rural South Africa, Timap for Justice--a well-established community-driven NGO in Sierra Leone--implemented a rural paralegal program to improve access to justice in poor, rural communities at the chiefdom level. (218) Timap for Justice has enjoyed anecdotal success. (219) The rural paralegal program trains "local lay people with access to lawyers for advice and support. As locals, they understand community dynamics and have the flexibility to work for community-wide solutions as well as serving individual needs." (220) Timap enjoys wide acceptance and legitimacy even though it is independent from the government and the judicial branch. (221) "Such community-driven legal services are not new. They have emerged in various forms in Bangladesh, Botswana, Malawi, Mozambique, South Africa, and the Philippines. In some cases, they are sanctioned by the courts and funded by the government as community-based extensions of government services, while in other scenarios, they are independent and raise funds through donors or small fees." (222)

Knowing that fast-track courts will likely be inaccessible to many, these courts may consider collaborating with rural communities by similarly training local lay people who then work under the general supervision of judicial officers and staff from the fast-track courts to provide access to victims of sexual crime. Rather than being independent of the judiciary and affiliated with a rural paralegal training program, the training here would be provided directly by the fast-track courts, which have developed expertise in the subject matter. In engaging with the "local lay people" in parts of rural India, the fast-track court staff and judicial officers will gain greater insight and understanding of local norms and values which they can then address as necessary.

E. Individualized Justice for Victims

Fast-track courts with their specialized focus are well-suited to address and accommodate the needs of victims in the immediate aftermath of a sexual crime and during the pendency of a trial--typically when victims are most in need of comprehensive services. Although the Justice Verma Report recommended the holistic provision of services to victims, (223) it is unclear whether the fast-track courts have implemented the recommendation in practice.

Again, the U.S. example provides some useful lessons. Some problem-solving courts in the United States act as one-stop-shops for the centralized provision of multiple services that make it easier for victims to access the help they need. (224) While specialized courts such as drug and mental health courts that involve victimless crimes focus primarily on serving offenders, specialized domestic violence courts provide services to victims, including access to basics like shelter, safety planning, and advocacy. (225)

Incorporating the individual needs of each victim into the daily operation of the fast-track courts prevents or minimizes "re-victimization" or "the sense that victims are abused twice: once by the batterer and again by the system." (226) Moreover, it increases the likelihood of the victim's involvement in the case and shields them from external pressure to remain silent. (227) This means that fast-track courts should be removed from other court facilities and thoughtfully designed with amenities such as separate waiting areas for victims and even separate "camera rooms" to shield victims from testifying in front of the perpetrator. (228)

Critics of specialized domestic violence courts argue that the "epistemological limitations and systemic biases inherent in the judicial system--including ... prevailing assumptions about the needs and characteristics of victims, and an institutional orientation toward law enforcement goals" remain unresolved in specialized settings. (229) While these nuanced concerns are important, they must not prevent fast-track courts from moving forward. Similarly, the unintended impact that participating in a criminal prosecution has on victim empowerment and self-determination (230) should not prevent these courts from existing and operating. Ultimately, the role of the judiciary as therapeutic overseers of a broader-based approach to solving a multifaceted problem is not unprecedented and should not be cursorily dismissed. (231)

One way to address these criticisms is to mandate a victim's advocate to act as a court liaison, serving only in the victim's interest. Indeed, the Justice Verma Report recommends creating a statutory right of due process affording the victim the right to appoint her own lawyer acting independently of the state prosecutor and exclusively on behalf of the victim. (232) While in common law jurisdictions, the notion of a victim's advocate represents a radical a departure from criminal law and procedure, they have been successfully incorporated into specialized domestic violence courts in U.S. jurisdictions, at least with respect to formulating a general plan of action that allows the victim to access social services while participating in a pending court case. (233)

Differences between domestic violence and the kinds of sexual crimes under the jurisdiction of Indian fast-track courts are significant and should not be downplayed. However, the emphasis on victim safety--including emotional, psychological, physical well-being, and the efficiency of the underlying judicial process--and perpetrator accountability--as opposed to rehabilitation, which once prevailed in the domestic violence courts (234)--is common to both contexts.

One case that illustrates the stark contrast in the state's response to "less-violent" sexual assault is that of thirty-seven year old, Suzette Jordan, the victim in Kolkata's eponymously-named "Park Street rape." (235) Jordan's story demonstrates how when rape makes news, "the grueling aftermath often wreaks a whole other trauma." (236) Despite the "blur of pain and humiliation" which ensued after her sexual assault, Jordan attempted to file a report at the local police station, which was staffed entirely by male officers. (237) Jordan recounts that the officers laughed at her and did not take her seriously; instead they made leering comments about Jordan for going out on Valentine's Day and drinking beer. (238)

It is widely accepted that for victims of sexual assault and violence, the potential for further abuse, censure, and public exposure can be as agonizing as the crime itself. In cases such as these, where the violence of the crime was of a lesser degree, the legal process can play a key role in alleviating some of the ill effects that have historically accompanied rape trials. Fast-track courts allow for speedier resolution of cases where victims are otherwise susceptible to pressure to withdraw from a case. Nevertheless, it is imperative that the fast-track courts conscientiously integrate and implement sensitivity to the needs of victims.

Enforcing the criminality of sexual violence against women through the creation of specialized courts sends the message that sexual violence is socially and culturally reprehensible. Dedicating resources to focus on the victim and not simply the speed of prosecution sends the equally important message that victims are never deserving of sexual violence.

F. Continuous Outcome Monitoring

Specialized courts are generally more adaptable to local changes. Perhaps by partnering with external agencies such as research universities, non-profit organizations or think tanks, they can collect and analyze data to measure their performance. (239) In addition to measuring the number of cases that are handled over a specific period, the average time it takes to move through the system, the clearance rate, conviction rates, recidivism, and backlog, fast-track courts should also focus on the impact the fast-track system has on victims and communities.


Fast-track courts--through their enhanced focus on implementing legislation and expedited procedures--can make strides towards deterring potential offenders. Through their gender-sensitive lens, careful staffing, comprehensive training, and collaborative approaches, they are also uniquely positioned to bring about normative change by reshaping the landscape of caste and other socioeconomic beliefs that influence sexual violence against women.

Although the Indian context for sexual crime has a specific and unique socio-economic and cultural dimension, fast-track justice is not a novel concept in other common law jurisdictions. Indeed, several countries have used such mechanisms to address their particular challenges with respect to gender-based violence. In the United Kingdom, where U.S. specialized domestic violence courts have served as a model, (240) civil remedies are accessible to victims of domestic violence in an expedited manner. (241) In post-conflict Liberia, the creation of specialized sexual violence courts has been one of the most celebrated institutional reforms to address the explosion of such cases in the face of scarce judicial resources. (242) The Zambian government also created fast-track courts to deal with gender-based violence. (243)

Although fast-track courts have also been established outside the context of gender-based crimes, constitutional challenges (particularly as to criminal defendants' due process rights in light of streamlined and accelerated procedures) are raised and overcome only when the interests to be served by the fast-track courts are especially compelling. (244)

Interestingly, fast-track justice in the criminal context appears to be exclusive to common law jurisdictions outside the United States and Europe. Similar to the circumstances surrounding the emergence of fast-track courts in India and South Africa, their creation is typically preceded by some high-profile news coverage of crime such as sexual violence against women, or a period of reconstruction following armed conflict, like in Sierra Leone or Liberia. While these examples of fast-track justice share similarities there are also significant differences for the impetus that drives perpetrators to commit sexual crimes in each of the above-mentioned jurisdictions. In India, the culture of impunity that is driven in part by the country's unique socio-economic and cultural norms influences both the prevalence of sexual violence and the fast-track court system.

It remains to be seen what success the Indian fast-track courts will have. Although such efforts in other parts of the world have enjoyed varying degrees of success, they all appear to have withstood concerns over the due process rights of criminal defendants. Without turning this into a full-fledged examination of due process guarantees under the constitution of every state that has established fast-track courts, here are a few reasons why these concerns may be overblown in the Indian context. First, procedural "due process" as understood under the United States Constitution, and its European counterparts, is not a universal construct. (245) Furthermore, criminal defendants, like victims, typically fare worse when trials are slow and arduous. Indeed, India's first attempt to streamline procedures to "fast-track" criminal prosecutions was undertaken pursuant to Article 21 (ii) of the Indian Constitution, which protects the right to a speedy trial as part of the fundamental right to life and liberty. (246)

Lastly, the fast-track courts are well aware that "justice delayed is justice denied and justice hurried is justice buried." (247) The Indian judiciary famously proclaimed that it would not convict even a single innocent defendant, (248) and is therefore notorious for its low conviction rates and for being soft on crime. As a result, fast-track courts are wary of overstepping the bounds of acceptable judicial practice in India. Moreover, in light of the fast-track system's narrow mandate, India's responsibility to protect its citizens is ostensibly more likely to be compromised when victims and communities are left vulnerable to sexual crime rather than when the trial of criminal defendants is swift. (249) Surely fast-track courts--which are courts of first instance established alongside other district courts in each Indian state--can find the appropriate balance between speed and due process without prejudicing defendants. After all, their judgments are subject to appeal to the High Courts and ultimately the Supreme Court of India--none of which have corresponding "fast-track" procedures. Ultimately, since swift prosecution is a critical element of deterrence of sexual crime in India, due process concerns raised by the judiciary should be balanced against the reality of the widespread impunity of sexual crimes in India. (250)

Justice is expensive; expedient, thorough justice is even more so. Although the financial sustainability of the fast-track courts remains to be seen, it is clear that such courts offer an economically viable solution to address impunity for sexual violence in India, at least in the short term. (251) Thus far, the central and state governments have been reticent to appoint sufficient judges to fill the existing vacancies at both the district and high court levels, despite pressure to do so. (252) However, if fast-track courts are paired with extant alternative justice mechanisms, these measures will strengthen the accessibility and viability of the fast-track court system. (253)

Lastly, this article recognizes that legal reforms of the formal and informal justice systems in India are by no means the only solution to curbing violence against women. Indeed, doing so might seem to individualize a problem that ultimately has systemic roots. (254) As the Justice Verma Report suggests in a chapter dedicated to this issue, educational reform, particularly at the early childhood level, is a key requirement to ignite widespread and systemic change. (255) Others argue that economic development and infrastructure, such as improved sanitation facilities, also provide a way to reduce violence against women. (256) Nevertheless, short of systemic changes that address the underlying causes of gender-based violence and discrimination, fast-track courts can deter future crime by eroding the culture of impunity that perpetuates gender violence in India.

Vandana Peterson, The author is a graduate of Smith College and the University of Michigan Law School. The views expressed herein are solely those of the author and do not reflect those of any organization or entity with which she is affiliated.

(1.) Though they share the same name, Jyoti Pandey and Awindra Pandey are not related; "Pandey" is a common last name in India.

(2.) Jason Burke, Delhi Rape: How India's Other Half Lives, guardian (Sept. 10, 2013),

(3.) Sharmeen Hakim, Shakti Mills Monsters Convicted; Their Families Continue to Suffer, Mumbai Mirror (Mar. 21, 2014), Shakti-Mills-monsters-convicted-their-families-continue-to-suffer/articleshow/32379191.cms.

(4.) Id.

(5.) See S. Ahmed Ali, Shakti Mills Gang-rape Accused Assaulted 10 Women in 6 Months, times of India (Sept. 4, 2013), Shakti-Mills-gangrape-accused-assaulted-10-women-in-6-months/articleshow/22273845.cms.

(6.) Ram Singh, the alleged leader of the men, died in prison awaiting trial. Another defendant was seventeen at the time of the crime and was therefore sentenced according to juvenile procedure. Despite public outcry, he was released in December 2015. Profiles: Delhi Gang Rapists, BBC NEWS (Dec. 20, 2015),

(7.) J.S. Verma et al., Report of the Committee on Amendments to Criminal Law (2013) [hereinafter Justice Verma Report],

(8.) Id. at 67; see also Declaration on the Elimination of Violence Against Women art. 1, G.A. Res. 48/104, U.N. Doc. A/RES/48/104 (Dec. 20, 1993). The U.N. definition also includes the violation of human rights of women in situations of armed conflict. United Nations Fourth World Conference on Women, Beijing, China, Sept. 4-5, 1995, Rep. on the Fourth World Conference on Women, at 48-49, U.N. Doc. A/CONF.177/20/Rev.l (Jan. 1, 1996).

(9.) Sec Nita Bhalla, India Opens Fast-Track Courts After Delhi Gang Rape, Thomson Reuters foundation (Apr. 10, 2013),

(10.) Sec The Criminal Law (Amendment) Act, 2013, No. 13, Acts of Parliament, 2013 (India) [hereinafter, Criminal Law (Amendment) Act, 2013],

(11.) See Jayna Kothari & Aparna Ravi, Ctr. for Law & Research Pol'y, The Myth of Speedy and Substantive Justice: A Study of the Special Fast Track Courts for Sexual Assault and Child Sexual Abuse Cases in Karnataka 4 (2015), (highlighting the importance of a legislative foundation "setting out the purpose of these courts, their mode of functioning or any special procedures to be followed ...").

(12.) Criminal Law (Amendment) Act, 2013, [paragraph] 21 (amending CODE Crim. Proc. [section] 309 (1973) (India)).

(13.) See Rukimini S., As Funds Dry Up, Fast-Track Courts Close Down, The Hindu (Aug. 17, 2014), The funding and infrastructure appears to vary from state to state. For instance, in the state of Karnataka, the fast-track courts were established pursuant to a Government Order, with little thought or instruction provided as to how they would actually operate. See Kothari & Ravi, supra note 11, at 3.

(14.) By way of context, the Declaration on the Elimination of Violence Against Women identifies different kinds of violence against women, including: "(a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation; (b) Physical sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution; (c) Physical, sexual and psychological violence perpetrated or condoned by the state, wherever it occurs." The Declaration on the Elimination of Violence Against Women art. 2, supra note 8.

(15.) As Gloria Steinem and Lauren Wolfe explained in a recent opinion piece, "The use of sexualised violence ... is the result of the cult of masculinity--some men become addicted to it and feel they have no identity without it ... Neither in war zones nor in street gangs is rape primarily about sex. It is sexualised violence whose motive is power, control and proving a false image of manhood. None of this will ever change unless we focus on creating a culture in which there is no cult of masculinity--and no cult of femininity that excuses or even supports it." Gloria Steinem & Lauren Wolfe, Sexual Violence Against Women is the Result of the Cult of Masculinity, Guardian (Feb. 24, 2012), feb/24/sexual-violence-women-cult-masculinity. As a result, educational initiatives and programs aimed at undoing widespread societal misogyny and patriarchy might be crucial complements without which legislation and judicial intervention will not succeed. However, this Article is concerned with the opportunities for legal and judicial reform to impact violence against women. Therefore, this Article will not address the various educational, media, and other initiatives that are employed to combat sexual violence against women.

(16.) Preetika Rana & Tripti Lahiri, The Verdict on Fast-Track Trials, wall St J. (Sept. 11, 2013),

(17.) Initially, police investigations and autopsy reports suggested that the two cousins were gang raped and murdered by hanging from a mango tree in the rural town of Badaun, Uttar Pradesh, by members of a superior caste. See Sugam Pokharel & Katie Hunt, Investigation of India Girls' Hangings Finds No Evidence of Rape, Murder, CNN (Nov. 27, 2014), However, in the national uproar and media spotlight on the incident, India's Central Bureau of Investigation conducted further investigation and concluded--possibly because of political pressure to avoid caste-based conflict in the region--that the young women were not raped and murdered but rather, took their own lives. Id.

(18.) The word "caste" has been variously defined and there is no consensus as to a precise definition. 1 Diwan Bahadur L. K. Ananthakrishna Iyer, The Mysore Tribes and Castes 140 (1935). For the purpose of this article, "caste" can be understood as the strict, stratified and hierarchical socio-economic organization of society, predominant in rural India, which has roots in Sanskrit religious texts. For further discussion on the origins and definition of caste, see infra, Part I.A.

(19.) "Dalit women are threatened by rape and gang rape as part of showing that the caste is dominated by the higher castes in India. The statically evident [sic] shows that day by day the atrocities against dalit women especially rape is increasing in India." G. Shunmuga Sundaram et al., Dalit Rape Victims; An Analysis of Victim Justice in India, in report of the second International Conference of the South Asian Society of Criminology and Victimology 150,152 (K. Jaishankar & Natti Ronel, eds., 2013).

(20.) See infra Part I.B.

(21.) Delhi Gang-Rape Case: Death Sentence for All Four Convicts, times of india (Sept. 13, 2013), -four-convicts/articleshow/22547783.cms.

(22.) In Zambia, fast-track courts have been introduced for similar reasons to combat gender-based violence. See, e.g.. Mwape Mwenya, Fast-Track Court to Improve Justice Delivery, zambia Daily Mail (Feb. 3, 2016), (reporting on the roll out of fast-track courts to improve justice delivery for gender-based violence claimants in Zambia). In East Africa, where global scrutiny has recently been on piracy, the international community has established fast-track courts to prosecute suspected pirates. See, e.g., Kenya Opens Fast-Track Piracy Court in Mombasa, BBC NEWS (June 24, 2010), (reporting about on-going efforts of the Kenya government to prosecute suspected pirates).

(23.) State v. Ram Singh & another, (2013) S.C. No. 114/2013 (India), available at http://online,

(24.) Id.

(25.) See e.g. Kathryn Abrams, "Fighting Fire with Fire": Rethinking the Role of Disgust in Hate Crimes, 90 Calif. L. Rev. 1423, 1424 (2002) (discussing avenues--other than increasing the severity of punishment for perpetrators--for "producing the moral or normative realignment necessary to reduce the incidence of [hate] crimes," relating to Arab-Americans after September 11, 2001).

(26.) See Brij Mohan Lai v. Union Of India & Ors., (2012) 5 S.C.R. 305 (discussing the central government's decision to cease funding the fast-track courts and assign financial responsibility to individual states).

(27.) For instance, studies have shown that a high prevalence of rape is linked to social phenomena, rather than the mental depravity of the perpetrator:

   Numerous studies have ... found that men who rape are "normal" to
   the extent that psychologists fail to find evidence of abnormality
   ... Researchers have consistently failed to find significant
   psychological differences between the rapist and nonrapist
   populations. There is simply no evidence, save the rape itself,
   suggesting that all or even most rapists are objectively depraved.
   Nonetheless, a tendency to rape can be linked to objective
   variables. Macrosociological research on rape strongly suggests
   that the prevalence of rape is positively correlated with a variety
   of social phenomena, including the acceptance of gender inequality,
   the prevalence of pornography, and the degree of social
   disorganization in a community.

Katherine K. Baker, Once a Rapist? Motivational Evidence and Relevancy in Rape Law, 110 Harv. 1. Rev. 563,577-78 (1997) (citations omitted).

(28.) Ekta Singh, Caste System in India: A Historical Perspective, at x-xi (Jan. 21, 2014) (unpublished thesis, Bundelkhand University), 10603/15272/6/06_introduction.pdf. The word "caste" has its origins in the Portuguese word "casta" which means breed or race. In Sanskrit, the word is "varna" which varies in meaning depending on context but is often interpreted to signify color, as in skin color (e.g. priests are fair, warriors are reddish, merchants are yellow and artisans are black). Id. at xi.

(29.) Jeremy Sarkin & Mark Koening, Ending Caste Discrimination in India: Human Rights and the Responsibility to Protect (R2P) Individuals and Croups from Discrimination at the Domestic Levels, 41 Geo. WASH. INT'L. L. REV. 541, 547-48 (2009) ("While the narrative origins of the basic varna divisions are clear, the origins of the jatis are not as well-defined. The jatis are the divisions that we understand as caste today. They are divisions based on occupation, linguistic and geographic limitations, customs, and other sociological features that are manifested in strict hierarchies existing at every level of society.").

(30.) See Claudia Lozano, The Free Market and Gender Relations: Political and Economic Power, Impunity, and the Murder of Women, 5 Seattle J. soc. JUST. 661, 676 (2007) (citing sexual crimes in Mexico and Argentina as examples of impunity through the exercise of political and economic power and control).

(31.) Id. at 677-78 (describing a 1990 case in which "Maria Soledad Morales, a sixteen-year-old girl, was raped, murdered, and mutilated by a group of young men with the support of the Catamarca provincial police. Maria Soledad was last seen alive in a club in Catamarca with her boyfriend and his friends, sons and nephews of high-ranking government officials. Three days later, passers-by discovered Maria Soledad's raped and mutilated body on the side of a dusty road. Sexual violence, including that which leads to the death of the victim, is not unusual practice in Argentina, but this case hit the provincial and national headlines because it unleashed a wave of civil disobedience. Essentially, the young girl had been handed over by her boyfriend to the perpetrators of the crime. These were politically 'loyal' men and/or were related to the ruling elite, whereas Maria Soledad and her boyfriend did not belong to any socially privileged group. The rape and murder highlighted the existence of extreme violence and continued existence of relationships of domination.") (citations omitted).

(32.) Id. at 676.

(33.) For the purposes of this article, the term "Dalit" is used to denote the lowest members of the Indian caste hierarchy. The self-designation of "Dalit" replaces other generic names for persons descended from "untouchable" castes, who are considered ritually impure, restricted to jobs such as cleaning latrines and cremation sites, and whose very touch was said to defile members of superior castes. Oliver Mendelsohn & Marikia Vicziany, The Untouchables: Subordination, Poverty and the State in Modern India 3-4 (1998).

(34.) See Sundaram et al., supra note 19, at 152; see also Rahi Gaikwad, Dalit Women at the Receiving End, The Hindu (Sept. 25, 2012), dalitwomen-at-the-receiving-end/article3934877.ece.

(35.) Sexual assaults along caste-lines have been referred to as hate crimes. Hate crimes are understood as "unlawful, violent, destructive, or threatening conduct in which the perpetrator is motivated by prejudice toward the victim's putative social group," but has little to do with personal animus against the victim as an individual. See Smriti Sharma, Hate Crimes in India: An Economic Analysis of Violence and Atrocities Against Scheduled Castes and Scheduled Tribes 6 (Ctr. for Development Economics, Working Paper No. 213, Dec. 2013), (citing Donald Green et al., Hate Crime: An Emergent Research Agenda, 27 Ann. Rev. SOC. 479, 480 (2001)). Hate crimes are typified by the underlying intention to victimize an individual because of her membership in a certain group. Evidence suggests that upper castes use and justify various forms of violence as tools to ensure adherence to caste-based norms and traditions by the lower castes. According to India's National Crime Records Bureau, three Dalit women are raped, two Dalits are murdered, and two Dalit homes are torched every day. Hilary Mayell, India's "Untouchables" Face Violence, Discrimination, Nat'L Geographic News (June 2, 2003), news/2003/06/ ml; see also Sundaram et al., supra note 19.

(36.) See Sundaram et al., supra note 19, at 150 ("Analyzing the justice of dalit rape victims in 2006, the official conviction rate for Dalit atrocity cases was just 5.3 percent. According to NCRB the average conviction rate for crimes against Scheduled Castes and Scheduled Tribes stood at 31.8% and 19.2% respectively as compared to overall conviction rate of 41.1% relating to IPC cases and 90.5% relating to SLL cases ...") (citing National Crime Records Bureau, Crime in India, ministry HOME AEF., Gov't india (2010),

(37.) See Sharma, supra note 35, at 17 ("Newspaper reports frequently find that judgment on cases is delayed by several years due to the lax performance of the courts and the apathetic attitude of the legal machinery.").

(38.) Id.

(39.) Sec Burke, supra note 2. In South Africa, known as the rape-capital of the world, gang rape is also called jackrolling and "[a]bout 25% of youth near Johannesburg described gang rape as recreational and fun." South Africa's Rape Shock, BBC NEWS (Jan. 19, 1999),

(40.) Tejas Mehta & Saurabh Gupta, Shakti Mills Gang-Rapes: 3 Convicts Sentenced to Death for Repeat Offense, NDTV (Apr. 5. 2014), -convicts-sentenced-to-death-for-repeat-offence-556191.

(41.) Lozano, supra note 30, at 670.

(42.) Proponents of sex crimes as a modern concept argue that "the idea that a murder can be sexually motivated and give pleasure could only emerge under the influence of the enlightenment and the new understanding of the relationship between subject and object that arose from knowledge of scientific disciplines such as psychiatry, sexology, and criminology." Id. at 671. Contrast the notion of European/North American sex criminal with that of Brazilian rapist. "In contrast to their British counterparts, Brazilian perpetrators act under a moral duty that transcends them." Id. at 672. Perhaps like the Brazilian example, rape in India is reminiscent of a society straddling the boundary between tradition and modernity. In Brazil, '"bloody rape' [is explained] as an emerging characteristic of a transition period between a society governed by gender status and a modern society governed by contractual relationships in which women acquire equal rights as citizens, independent and free." Id. at 665. In the European cases of sexual violence against women, "the process leads to sexual gratification, and in Brazil, [like India] it produces feelings of equality with peers and asserts masculinity as protector and punisher." Id. at 674. See also supra note 27.

(43.) Abu Azini Follows Mulayam Singh's Footsteps with "Sexist" Remark; Says "Women Having Premartial Sex Should Be Hanged," daily news & analysis india (Apr. 11, 2014), -withsexist-remark-says-women-having-premarital-sex-should-be-hanged-1977290; Women Who Have Sex Outside Marriage Should be Hanged: SP Leader Abu Azmi, Times of India (Apr. 11, 2014), http:// should-be-hanged-SP-leader-Abu-Azmi/articleshow/33599253.cms. Abu Azmi is the head of the "Samajwadi Party (SP)," an Indian political party.

(44.) One of the perpetrators in the Mumbai rape case was married with children and told his wife he had a proper job. However, the police say he committed petty thefts. Another perpetrator lived in a "chawl" or old working class tenement until his family was evicted to the street. A third lived with his eighty-year old grandmother who sold vegetables on the street for subsistence. Two more of the perpetrators were minors with spotty school attendance. Hakim, supra note 3; V. Narayan, Mumbai Gang Rape Accused Says Gang Has Done It Before, times of India (Aug. 26, 2013), Mumbai-gangrape-accused-savs-gang-has-done-it-before/articleshow/22056571.cms.

(45.) The photojournalist was raped while she was on an assignment at the Shakti Mills compound on August 22, 2013. Ansari, Bangali, Khan, Jadhav, and a minor raped her after tying her colleague to a tree. Later, they forced her to clean the spot before allowing the two to leave. Gangrape Accused Say They Also Raped Four Ragpickers in the Same Mumbai Mill, India today (Aug. 26, 2013), -rapes-in-shakti-mill-forced-photojournalist-to-clean-spot/l/301372.html.

(46.) See, e.g., Pablo Fajnzylber, Daniel Lederman & Norman Loayza, Inequality and Violent Crime, 45 J.L. & ECON. 1 (2002) (concluding, based on empirical data analysis, that there is a positive and significant correlation between inequality and crime rates).

(47.) Mehta & Gupta, supra note 40.

(48.) See Justice Verma Report, supra note 7, at it.

(49.) Delhi Gangrape Case: Defence Lawyer Stakes Controversy, INDIAN express (Sept. 14, 2013), http:// /1169243/.

(50.) See Justice Verma Report, supra note 7, at 11.

(51.) See Deborah Zalesne, Sexual Harassment Law in the United States and South Africa: Facilitating the Transition from Legal Standards to Social Norms, 25 Harv. women's L.J. 143, 185 (2002).

(52.) Id. at 187.

(53.) For example, in Guatemala,

   impunity for the battering and killing of women is at such levels
   that perpetrators rightly feel confident that there is no price to
   pay for their unrestrained violence. Each year the number of women
   murdered rises precipitously, and there is general consensus that
   the impunity enjoyed by those responsible is a significant factor
   in the escalating numbers of killings in Guatemala.

Karen Musalo, et al., Crimes Without Punishment: Violence Against Women in Guatemala, 21 Hastings Women's L.J. 161,161-62 (2010) (citations omitted).

(54.) Independent Expert to Update the Set of Principles to Combat Impunity, Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity 6, U.N. Doc. E/CN.4/2005/102/Add.l (Feb. 8, 2005) (by Diana Orentlicher).

(55.) See Mykola Sorochinsky, Prosecuting Torturers, Protecting "Child Molesters": Toward a Poicer Balance Model of Criminal Process for International Human Rights Laze, 31 Mich. J. Int'l L. 157,183, 229, n.19 (2009) (citations omitted) (defining impunity as "a state of affairs in which individuals who have committed serious human rights violations and international crimes (often state security forces) are shielded from prosecution, either by formal legal rules, such as one-sided amnesties, or by systemic failures of national criminal justice systems to bring them to justice.").

(56.) Section 376 of the Indian Penal Code modifies the definition of "rape" by changing the reference to sexual assault, which encompasses broader acts than "rape," which is defined in Section 375 in terms of "penetrative sexual intercourse." See pen. code [section] 375-76 (2010) (India); see also JUSTICE VERMA REPORT, supra note 7, at 83 ("[R]ape is a form of sexual assault.").

(57.) Kimberley Allen, Guilt by (More Than) Association: The Case for Spectator Liability in Gang Rapes, 99 Geo. L.J. 837,850 (2011).

(58.) Id.

(59.) Id. at 848 (citing A. Nicholas Groth & H. Jean Birnbaum, Men Who Rape: The Psychology of the Offender 115 (1979)).

(60.) Id.

(61.) Id (citations omitted).

(62.) Baker, supra note 27, at 606.

(63.) Id. at 608.

(64.) Valorie K. Vojdik, Sexual Violence Against Men and Women in War: A Masculinities Approach, 14 Nev. LJ. 923, 944 (2014) (citing Megan Gerecke, Explaining Sexual Violence in Conflict Situations: Preliminary Findings for Bosnia and Herzegovina, Rwanda and Sierra Leone 52 (Feb, 15,2009) (unpublished manuscript)).

(65.) Baker, supra note 27, at 604-05.

(66.) For a comparison between the Criminal Law (Amendment) Bill, 2012 and Ordinance of 2013 with the Justice Verma Report's Recommendations, see Comparison between the Criminal Law (Amendment) Bill, 2012; the Report of the Committee on the Amendment to Criminal Lazos; and the Criminal Laze (Amendment) Ordinance, 2013, PRS Legislative Research (Feb. 6, 2013), media/Criminal%20Law/Comparison%20 of%20Criminal%20Laws.pdf.

(67.) Pen. Code [section] 376, Explanation 1 (2010) (India). The Justice Verma Report had proposed gender-neutral language, a sentence ranging from 20 years of imprisonment for group sexual assault to a term of life imprisonment where group sexual assault resulted in the victim's death or vegetative incapacitation. However, the final iteration contained general sentence range of 10 years to life imprisonment. See Criminal Law (Amendment) Act, 2013, [paragraph] 9 (amending PEN. Code [section] 376 (2010) (India)).

(68.) Zalesne, supra note 51, at 186.

(69.) Sec Sujata Gadkar-Wilcox, Intersectionality and the Under-Enforcement of Domestic Violence Laics in India, 15 U. PA. J.L. & SOC. CHANGE 455, 459 (2012).

(70.) Id. at 460 (citation omitted).

(71.) Id.; see also Judith Greenberg, Criminalizing Dowry Death: The Indian Experience, 11 Am. U.J. GENDER SOC. POL'Y & L 801, 807 (2002)).

(72.) See Greenberg, supra note 71, at 807..

(73.) Id. at 808 (citing Indian Penal Code Act, No. 45 of 1860, PEN. CODE [section] 304B(2) (India)).

(74.) See Gadkar-Wilcox, supra note 69, at 458-59 (citing The Protection of Women from Domestic Violence Act, No. 43 of 2005, India code (2005), vol. 12).

(75.) Id. at 461.

(76.) Id.

(77.) High Level Comm. on the Status of Women, Executive Summary: Report on the Status of Women in India 12 (2015), Executive%20Summary_HLC.pdf (observing that despite the existence of laws "passed to [sic] improve the status of women and to empower them ... gender based violence" continues in part due to "inadequate implementation of laws by the State, police and courts."); JUSTICE VERMA REPORT supra note 7, at iii, 51, 151 (calling for "simple procedural protocols [to be] put in place," and asserting that the erosion of the rule of law is caused by the lack of "quality of the police force," and "fundamental attitudes towards women," amongst others things, and "not the want of needed legislation."). See also LAW COMM'N OF INDIA, ONE HUNDRED AND SEVENTY-SECOND REPORT ON REVIEW OF RAPE LAWS (2000),; Jennifer Bays Beinart, Note, Beyond Trafficking and Sexual Exploitation: Protecting India's Children from Inter and Intra-familial Sexual Abuse, 21 IND. INT'L & COMP. L. REV. 47, 56 (2011) (The Indian Penal Code "has been described by some as archaic and sexist.") (citing PINKI VIRANI, BITTER CHOCOLATE: CHILD SEXUAL ABUSE IN INDIA (2000)); Olga Khazan & Rama Lakshmi, 10 Reasons Why India Has a Sexual Violence Problem, wash, post (Dec. 29, 2012), wp/2012/12/29/india-rape-victim-dies-sexual-violence-proble/.

(78.) See id. at 457 ("Despite progressive legal reforms, statutes addressing dowry violence and spousal abuse remain unenforced for the majority of rural and lower caste women because these women cannot overcome the combined effects of deep-seated presumptions about both their gender and class status.") (citation omitted).

(79.) Sec Martha C. Nussbaum, Sex, Laics, and Inequality: What India Can Teach the United States, Daedalus: J. of the Am. Acad, of Arts & Sci. 95,101-02 (2002).

(80.) Id. at 101.

(81.) Id.

(82.) In India's Villages, Delhi Rape Spurs Restrictions, NDTV (Jan. 9, 2013),

(83.) See id.

(84.) Krishna Pokharel & Aditi Malhotra, In India, Rapist's Wife Faces Harsh Judge: Tradition, wall St J. (Sept. 23, 2013), 24127887324665604579081240828710138.

(85.) Id.

(86.) Tuka Ram And Anr. v. State Of Maharashtra, A.I.R. 1979 S.C. 185 (1978) (India).

(87.) Id.

(88.) Id.

(89.) Id.

(90.) Shalini Ghosh, The Treatment of Sexual Violence in India, 3 Warwick Student L. Rev. 41, 45 (2013).

(91.) Frederick M. Lawrence, The Punishment of Hate: Toward a Normative Theory of Bias-Motivated Crimes, 93 Mich. L. Rev. 320, 320-21 (1994) (distinguishing between crimes committed with a "bias motive" from those that are not). "Implicit within every penal relation and every exercise of penal power there is a conception of social authority, of the (criminal) person, and of the nature of the community or social order that punishment protects and tries to re-create." Id. (citing David Garland, Punishment and Modern Society 265 (1990)).

(92.) Prosecutor v. Rutaganda, Case No. 1CTR 96-3-T, Judgment and Sentence, 1 456 (Dec. 6, 1999).

(93.) Constitution, Supreme Court of India (2014),

(94.) jurisdiction of the Supreme Court of India, supreme court of India (2014),

(95.) India Const, art. 214; see also Constitution, SUPREME COURT OF INDIA (2014),; judiciary of India, MAPS OF INDIA (Jan. 9, 2015),

(96.) Judidary of India, MAPS OF INDIA (Jan. 9, 2015), government-of-india/judiciary/.

(97.) See, e.g., District Court of Haridwar, DISTRICT COURTS OF INDIA (Aug. 2, 2016), (providing information about the District Court of Haridwar); see also District Courts, india courts,; /udiciary of India, Maps of India (Jan. 9, 2015),

(98.) Id.

(99.) 1,800 Fast-Track Courts on Anvil to Speed Up Justice, Times of India (Aug. 23, 2014),

(100.) Ram Mashru, Justice Delayed is Justice Denied: India's 30 Million Case Judicial Backlog, The Diplomat (Dec. 25, 2013), -indias-30-million-case-judicial-backlog/; see also Dean Nelson, Delhi Gang Rape: Case Backlog To Blame for Increase in Assaults Says Chief Justice, the telegraph (Jan. 8, 2013), /news /worldnews/ asia/india/9788066/Delhi-gang-rape-casebacklog -to-blame-for-increase-in-assaults-says-chief-justice.html; World's Largest Backlog of cases: PM, INDIAN EXPRESS (Aug. 17, 2009), ("As per official figures, there were 52,592 cases pending before the Supreme Court, an aggregate of 40,17956 cases pending before the High Court and 2,71,19,092 cases pending before all the subordinate courts put together as on June 30, 2009. Inaugurating the Chief Ministers' and Chief Justices' Conference here Singh said, I am told that almost 3000 judges' posts in the country are vacant because of delay in recruitment.'").

(101.) However, following widespread religious and communal riots in the state of Gujarat in 2001, the government revamped the fast-track courts with a subject-specific agenda, namely to adjudicate the large number of cases resulting from communal violence. This was the first instance of combining the "fast-track" framework with a specialized subject matter. See Ratna Kapur, Normalizing Violence: Transitional Justice and the Gujarat Riots, 15 COLUM. J. GENDER & L. 885,898 (2006).

(102.) See Mala Das, Delhi High Court Clears Five Fast-Track Courts for Daily Hearing of Rape Cases, NDTV (Dec. 24, 2012), -five-fast-track-courts-for-daily-hearing-of-rape-cases-309399; PrafuIIa Marpakawar, Maharashtra Sets Up 25 Fast-Track Courts, Times of India (Dec. 26, 2012), Maharashtra-sets-up-25-fast-trackcourts/articleshow/17761047.cms?referral=PM.

(103.) Madabhushi Sridhar, Miscarriage of Fast Track Justice, Law Gratis (Feb. 6. 2016),

(104.) See Fast Track Courts, Dep't of Justice, (last visited July 13, 2016) (showing the breakdown of funding for each year between 2005 and 2011); see also Brij Mohan Lai v. Union of India & Ors., (2012) 5 S.C.R. 305 (India) (holding that the central government may cease funding and require states to shoulder exclusive financial burden for the continuation of fast-track courts); Sridhar, supra note 103; Despite 1,000 Fast Track Courts, 32 Million Cases Still Pending, The NEW INDIAN EXPRESS (Dec. 23, 2013), ("The government discontinued the fast-track courts scheme on March 31, 2011, after running it for over 11 years ... A total of 701 fast track courts are working under the funds released by state governments, while 183 courts are functioning in Bihar and 100 courts are working in Maharashtra (till Dec, 2012), law ministry said ... The Supreme Court upheld April 19, 2012, the government's policy to stop funding fast-track courts, which were created a decade ago to speed up trial in pending cases.").

(105.) Brij Mohan Lai v. Union of India & Ors., (2012) 5 S.C.R. 305 (India). Here, the judiciary was criticized for usurping the powers of the legislature in attempting to manage the budget for the creation and staffing of new courts because the appointment of judges to the fast-track courts was to be done by judges themselves.

(106.) "The NDA government hesitated to address this issue on [a] regular and permanent basis and to spend Rs 4750 crore on revamping the existing judiciary by raising judge-population ratio, instead, it has put forward a 502 crore fast track court scheme for a period of five years, which is an ad hoc, half baked attempt to address a serious problem of baffling pendency. The scheme proposed to start 1750 fast track courts at the rate of five in each district to clear pending criminal cases." Sridhar, supra note at 103. However, one data aggregator counters that "[e]ven if the states have to ... bear the entire expenditure [for fast-track courts in the absence of funding from the central government,] the fund requirement is less than 0.01% of the budget of most states." Rakesh Dubbudu, Fast Track Courts Might Help Reduce Pendency in Courts-But Are the Governments Interested?, FACTLY (Oct. 12, 2015),

(107.) "There were over 1.2 million under-trials in the country and they were costing the state Rs.240 crores a year for even the basic amenities they received." Justice on Faster Track, GOODNEWSINDIA (June 9, 2003),

(108.) Id.

(109.) There was a previous attempt to combine fast-track procedures with specialized subject matter in 2002. The government created fast-track courts to adjudicate the large number of cases resulting from communal violence following widespread religious and communal riots in the state of Gujarat, which met with poor results. Sec e.g, Kapur, supra note 101, at 898 ("Several mechanisms have been set up to try and secure justice for the Muslims and specifically the women who experienced horrific violence during the Gujarat riots. The primary mechanism established to inquire into the Godhra incident and Gujarat riots, is the 'fast track' court. The clear emphasis is on prosecution and conviction of those involved in the violence and to demonstrate in the most visible way that action is being taken by the State. However, in one of the first cases to be decided by the court, The Best Bakery Case, which arose out of the killing of fourteen people on the nights of March 1 and 2, 2002, in a building named Best Bakery, the court acquitted all of the twenty-one accused. Many of the key eyewitnesses turned hostile, refusing to repeat testimony that they had previously given to the police for fear that they would be subjected to reprisals. Subsequently, the National Human Rights Commission (NHRC) successfully appealed to the Supreme Court to set aside the orders of acquittal and secure a retrial of the case outside of Gujarat." (citations omitted).

(110.) Rukimini, supra note 13.

(111.) See Kothari & Ravi, supra note 11, at 11 ("The current lacuna in the guidelines to be followed by the special fast track courts in Karnataka for speedy disposal of cases suggests that no thought has been given to the question of how these courts may function effectively. There has been no evolution in the conception of fast track courts since they were first established more than a decade ago.").

(112.) See Written Answer to Unstarred Question No. 572 on Fast Track Courts, 15th Lok Sabha (House of the People, Parliament of India) (Aug. 7, 2013), Questions/QResult15.aspx?qref=145960&lsno=15 ("After the unfortunate incident of gang rape in Delhi in December 2012, the States have been requested to set up FTCs for trial of rape cases, inter-alia by utilizing 10% additional positions of Judges being created in the Subordinate Judiciary based on the judgment of the Supreme Court in Brij Mohan Lai case on 19th April 2012.") See also Brij Mohan Lai v. Union Of India & Ors., (2012) 5 S.C.R. 305, 337-40 (calling for a 10 percent increase in the number of judicial officers of each state, and discussing the criteria and procedure for "absorbing]" existing FTC judges into the "regular cadre" of judicial officers when staffing the newly created offices, with an arguably permanent or quasipermanent status).

(113.) For example, the District Courts for Tis Hazari District in Delhi list Judge Ramesh Kumar, 11 as the judicial officer presiding over the jurisdiction "FTC (SEXUAL ASSAULT ON WOMAN)." See Tis Hazari Court Judges (Central), Additional Sessions judges, District court of Tis Hazari Central & West District, (last visited July 13,2016).

(114.) "After the gruesome Delhi gang rape, the government set up 73 fast-track courts across the country to the [sic] try cases of sexual violence against women as per provisions mentioned in the [Criminal Law (Amendment) Act, 2013]. These were among 1,800 fast-track courts the authorities plan to set up and run for three years, focusing on violent crimes and other serious offences against women, children and the elderly, as part of broader judicial reforms." Rashi Aditi Ghosh, 85% Rape Cases Still Awaiting Court Trials, Daily News & analysis India (June 16, 2014),

(115.) Marpakwar, supra note 102; How fast are fast-track courts?, LIVE MINT (Dec. 16, 2014), ("In Delhi, six fast-track courts deal exclusively with cases of sexual assault.").

(116.) Utkarsh Anand, SC Seeks Vicios on More Changes in CrPC to Fast-Track Rape Cases, Indian Express (Sept. 5, 2013), sc-seeksviews-on-more-changes-in-crpc-to-fasttrack-rape-cases-2/. The Bench of Justice says that the amendments are not adequate to speed up the process of justice in rape cases.

(117.) See Criminal Law (Amendment) Act, 2013.

(118.) "Among those present in the courtroom was Home Minister R R Patil, who said the verdict will act as 'major deterrent.' Patil said, 'It is heartening to see that the trial has been conducted within such a short span after the charge sheet was filed.'" Hakim, supra note 3.

(119.) Vibhuti Agarwal, What the Uber Driver's Trial Taught Us About India's Neio Fast Track Courts, Wall St J. (Oct. 21, 2015), what-theuber-drivers-trial-taught-us-about-indias-new-fast-track-courts/.

(120.) Mandakini Gahlot, Despite Tougher Laics, India Can't Shake Rape Culture, USA Today (June 14, 2014),

(121.) Id.

(122.) See Miriam J. Aukerman, Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice, 15 Harv. Hum. Rts. J. 39, 64 (2002) (observing that in terms of deterrence, "[t]he actual severity or certainty of punishment is less important than its perceived severity or certainty."); Justice Verma Report, supra note 7 at 320-21 ("Nonimplementation has resulted in deprivation of the benefits which police reforms would bring to the protection of fundamental rights of ordinary people."); see also HUMAN RIGHTS WATCH, BROKEN SYSTEM DYSFUNCTION, ABUSE, AND IMPUNITY IN THE INDIAN POLICE (2009), ("Police in India frequently fail to register crime complaints, called First Information Reports (FIRs), and to investigate crimes" because of "pressure from political leaders to show a reduction in crime by registering fewer FIRs," insufficient personnel, and heavy workloads, with women and Dalit community members "bear[ing] the brunt of this neglect.").

(123.) Aukerman, supra note 122, at 42-43 ("[Different societies have different goals for criminal justice. Even within societies there are often fundamental disagreements about the purposes of domestic criminal justice. For example, in the United States, there is a debate about whether offenders should be punished in prisons or rehabilitated in half-way houses; whether or not harsh sanctions have an appreciable deterrent effect; and whether or not reconciliation programs can be attached effectively to prosecutions. Despite such disagreements, however, in the West the determination of individual culpability through prosecution is commonly regarded as necessary to redress criminal actions. The widely held faith in prosecution--whether the goal is punishment or deterrence, condemnation or rehabilitation--disguises disputes about the underlying purposes of criminal justice.").

(124.) Id. at 44.

(125.) Id. at 56-64. (Retribution is "more politely described in terms of combating [sic] impunity or bringing perpetrators to justice," while the word deterrence "is often used interchangeably with 'prevention.' In fact, deterrence is only one way to prevent crime. Under deterrence theory, potential offenders may still be capable of committing crimes (since they are not incapacitated) and may still desire to commit crimes (since they are not rehabilitated). But despite their capacity and desire, potential offenders are inhibited by the intimidation or terror of the law. There are two main types of deterrence: individual deterrence and general deterrence. Individual deterrence seeks to prevent future crime by setting sentences that are strict enough to ensure that a particular offender will not reoffend. General deterrence, on the other hand, attempts to prevent crime by inducing other citizens who might be tempted to commit crime to desist out of fear of the penalty. Notably, deterrence theory does not allow, much less require, the punishment of all who are guilty. Moreover, general deterrence does not even require punishment of all those who might be deferrable as individuals. If exemplary punishments adequately prevent future crime, they are sufficient.") (citations omitted).

(126.) Jeremy Bentham, The Theory of Legislation 326 (1931) (citation omitted).

(127.) Mahesh S/O. Ram Narain Etc v. State of Madhya Pradesh, (1987) 2 S.C.R. 710 (India).

(128.) Dhananjay Chatterjee Alias Dhana v. State of W.B., (1994) 2 S.C.C. 220 (India).

(129.) Aukerman, supra note 122, at 64.

(130.) See id. ("Deterrence occurs ... when people refrain from certain actions because they fear the possible consequences of those actions ... Deterrence also assumes that the potential offender will undertake a two-part calculation, assessing both the gravity of the consequences and the likelihood of getting caught.... the effectiveness of any deterrent depends on the potential offender's perception of possible sanctions, and on her assessment of her ability to evade law enforcement.")

(131.) Id.

(132.) Simon Bronitt & Ashutosh Misra, Reforming Sexual Offences in India: Lessons in Human Rights and Comparative Laxo, 2 Griffith Asia Q. 37,41-42 (2014).

(133.) See Flavia Agnes, Violence Against Women: Review of Recent Enactments, in IN THE NAME OF JUSTICE: WOMEN AND LAW IN SOCIETY 81, 98 (Swapna Mukhopadhyay ed., 1998) ("If the purpose of the rape trial is to act as a deterrent, rather than a prolonged sentence of life imprisonment, a less severe sentence within a stipulated time limit would serve the purpose. While there are delays, the benefit of such delays is awarded to the accused as the sentence is reduced on this ground even when the conviction is upheld. This is adding insult to injury.")

(134.) Burke, supra note 2 ("Very quickly, Singh admitted his involvement in the attack, even producing two iron rods, covered in dry blood, from a compartment in the bus's cabin. By the end of the week, five of the six were in custody.").

(135.) See id.

(136.) Nandita Bhatla, et al., Int'l Ctr. for Research on Women, Safe Cities Free From Violence Against Women and Girls: Baseline Finding from the "Safe Cities Delhi programme" 10 (2013), -againstwomen-and-girls-baseline-finding-safe-cities-delhi-pr.

(137.) See Burke, supra note 2.

(138.) See Jayanth K. Krishnan, et at, Grappling at the Grassroots: Access to Justice in India's Lower Tier, 27 Harv. Hum. Rts. J. 151, 153 (2014).

(139.) Id. at 165 (finding that the "lower tier is characterized by poor court infrastructure, heavily backlogged dockets, excessive continuances, and insufficient quantity of judges, and inadequate legal training"); see also id. at 181 (noting that "judges in the lower tier may be the primary protectors of [socioeconomically disadvantaged] claimants who bring forth social and economic grievances.").

(140.) See id. at 182.

(141.) JUSTICE VERMA REPORT, supra note 7, at 81 (citing Bharwada Bhoginbhai Hirjibhai v. State Of Gujarat, (1983) 3 S.C.R. 280 (India)).

(142.) Id. at 81-83 (citing Bharwada Bhoginhhai Hirjibhai v. State Of Gujarat, (1983) 3 S.C.R. 280 (India)).

(143.) See Krishnan, et al., supra note 138, at 184 (reporting findings by a research team's interview with a judge, in Maharashtra, India on Sept. 15, 2011).

(144.) Id.

(145.) Id.

(146.) Id.

(147.) Kapur, supra note 101, at 916.

(148.) justice Verma Report, supra note 7, at 237 (citing Jugendra Singh v. State of U.P., (2012) 6 S.C.C. 297 (India)).

(149.) Id. at 411-13.

(150.) See Special Rapporteur on Violence Against Women, Its Causes and Consequences, Rep. on Mission to India, Human Rights Council, 1| 50, U.N. Doc. A/HRC/26/38/Add.l (Apr. 22-Mav 1, 2013) (by Rashida Manjoo) [hereinafter, Report on the Special Rapporteur's Mission to India] ("[T]he laws that were adopted did not fully reflect the recommendations of the Verma Committee. The opportunity to adopt a holistic approach to violence against women, including addressing the root causes and consequences of such violence, was lost.").

(151.) See Justice Verma Report, supra note 7, at 236-38. Consider the previous example of Jugendra Singh v. State of LI.P., where the Indian Supreme Court characterized gender violence as an offense against the honor and reputation of a woman. The same opinion goes on to state that "[a]n attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu." Id. at 237 (citing Jugendra Singh v. State of U.P., (2012) 6 S.C.C. 297 (India)).

(152.) Although the caste and other cultural dimensions of sexual crime that were previously discussed are unique to the Indian context, the South African government's recognition "that its 'anti-rape strategy' must address the wider social acceptance of rape and sexual violence against women and children in order to make real impact," highlights the impact that fast-track courts in India can have on normative change. European Parliament Directorate-General for Internal Policies, Policy Dep't C: Citizen's Rights and Constitutional Affairs, Overview of the Worldwide Best Practices for Rape Prevention and for Assisting Women Victims of Rape, at 161 (2013) [hereinafter, Overview of the Worldwide Best Practices for Rape Prevention],

(153.) Id. (recommending the U.S. National Sexual Violence Resource Centre, for a series of protocols developed in communities across the United States).

(154.) "Sexual offences courts" or "SOCs" are specialized courts--albeit without the "fast-track" element--that have existed in South Africa since 1993, and offer another useful analog for comparison. See Mastoera Sadan et al., Inst, for a Democratic Alt. in S. Afr., Pilot Assessment: The Sexual Offenses Court in Wynberg & Cape Town and Related Services 5 (2001),

(155.) Mae C. Quinn, Anna Moscoivitz Kross and The Home Term Part: A Second Look at the Nation's First Criminal Domestic Violence Court, 41 Akron L. Rev. 733,736 (2008).

(156.) Id. at 737.

(157.) Id. at 742.

(158.) Id. at 759.

(159.) Anat Maytal, Note, Specialized Domestic Violence Courts: Are They Worth The Trouble in Massachusetts?, 18 B.U. Pub. Int. L.J. 197,197-98 (2008).

(160.) See Quinn, supra note 155, at 734.

(161.) See Maytal, supra note 159, at 214.

(162.) See id. at 214-15.

(163.) Id. at 215.

(164.) See Quinn, supra note 155, at 735.

(165.) See Maytal, supra note 159, at 209 (citation omitted).

(166.) Id. (internal quotation and citation omitted).

(167.) Robert V. Wolf, Ctr. for Court Innovation, Bureau of Just. Assistance, Principles of Problem-Solving Justice (2007) [hereinafter, Principles of Problem-Solving justice], Given the fast-track courts' explicit focus on deterrence through punishment, the principle of offender accountability via compliance monitoring (presumably for consequences other than state incarceration) that is part of the specialized court scheme in the United States is not applicable in the Indian context.

(168.) See Justice Verma Report, supra note 7, at 298 ("The courts have to take a participatory role in the trial and not act as mere tape recorders to record whatever is being stated by the witnesses. The judge has to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, the court can control the proceedings effectively so that the ultimate objective that is the truth is arrived at. The court must be conscious of serious pitfalls and dereliction of duty on the part of the prosecuting agency. Upon failure of the prosecuting agency showing indifference or adopting an attitude of aloofness, the judge must exercise the vast powers conferred under Section 165 [sic] of the Evidence Act and Section 311 of the CrPC to elicit all necessary materials by playing an active role in the evidence collecting process.").

(169.) Sarkin & Koening, supra note 29, at 551.

(170.) See, e.g., State of Karnataka v. Appa Balu Ingale, (1995) Supp. 4 S.C.C. 469, 484 (India) (appealing blatantly discriminatory decision of High Court for the State of Karnataka to the Supreme Court. The presiding judge at the state level had dubiously thrown out testimony by Dalit people for being untrustworthy. Without this testimony, the judge ruled in favor of the high caste defendants, who had been convicted in lower courts of preventing the Dalit plaintiff from using the community well at gunpoint.).

(171.) N.R. Madhava Menon, et al., Nat'l Comm'n for Women, Course Curriculum on Gender Sensitisation of Judicial Personnel (A Training Manual Including Objects, Methods, and Materials) (2001),

(172.) Id. at 10.

(173.) Id. at 15.

(174.) See Id.

(175.) New York City Alliance Against Sexual Assault, Factsheets: Trauma of victimization (2001),

(176.) Ann Stewart, Gender and Judging in India, REVISTA FORUMUL JUDECATORILOR, NO. 3, 2012, at 82-84.

(177.) Id.

(178.) Id. at 84. The Supreme Court issued a directive to establish the All India Institute for the training of higher officers of the judiciary, and a state level institute for training subordinate judges within each state or union territory. Id. at 83.

(179.) Id. at 88.

(180.) See Justice Verma Retort, supra note 7, at 290.

(181.) Id. (citing Virender v. The State of NCT of Delhi, (2009) Crl.A.No. 121/2008 (Del.) (India)).

(182.) How fast are fast-track courts?, supra note 115.

(183.) Id.

(184.) Principles of Problem-Solving Justice, supra note 167, at 4-5.

(185.) For example, in post-conflict Sierra Leone, a specialized court was established as a hybrid effort between international and national governments and based entirely on voluntary funding by peace-loving states. It is lauded as one of the most successful transitional justice mechanisms in part because it had an effective "outreach" or public relations program that provided an accessible two-way channel of communication between the population and the court. Philip Alston & Ryan Goodman, International Human Rights: The Successor to International Human Rights in Context 1359,1404 (2013).

(186.) Panchayats, which translate literally to mean "council of five," are comprised of an elected village council of five in most if not all the far-flung rural villages of the Indian subcontinent. Panchayats formed the cornerstone of the local governance systems during colonial rule and were recognized and assimilated by the national government post-independence. Sara Kuipers Cummings, Liberia's "New War": Post-Conflict Strategies for Confronting Rape and Sexual Violence, 43 ARIZ. St. L.J. 223, 250 (2011).

(187.) Id. at 254 (citation omitted).

(188.) See Report on the Special Rapporteur's Mission to India, supra note 150, at 35 ("Informal dispute settlement alternatives are often sought, allegedly by police, family members or community leaders ... To be able to officially report complaints and continue throughout the often lengthy judicial process in safety and with an adequate standard of living is not an option for many women.").

(189.) This emphasis on revenge is atypical of informal justice systems, which are more victim-centric, and eclipses even the conventional criminal justice system's focus on punishment to deter future crime. See e.g. Cummings, supra note 186, at 248-49 (noting that the emphasis of retributive justice on punishing the offender "is most often the domain of the conventional criminal justice system.") (citation omitted).

(190.) The U.N. has loosely defined restorative justice programs in their applicability to domestic criminal justice systems. See E.S.C. Res. 2000/14, U.N. Doc. E/2000/30 (July 27, 2000). Alternative justice systems in India, which are community-based, are primed to incorporate formal elements of restorative justice (i.e. to recognize that a crime is committed against a particular individual rather than the abstract state), thereby affording victims the opportunity to engage more actively in resolving their case. By contrast, in the United States, restorative justice is a doctrine that uses restorative processes--such as those where the victim, the offender and/or any other individuals or community members affected by a crime participate together actively in the resolution of matters arising from the crime, often with the help of a fair and impartial third party--or that aims to achieve restorative outcomes, which are typically designed to achieve reparation for the victim and community and reintegration of the victim and/or the offender.

(191.) See Alston & Goodman, supra note 185, at 1404.

(192.) See Lars Waldorf, Mass justice for Mass Atrocih/: Rethinking Local justice as Transitional justice, 79 Temp. L. Rev. 1,15 (2006) (citation omitted).

(193.) hi. (citing Richard Delgado, Prosecuting Violence: A Colloquy on Race, Community, and justice, 52 Stan. L. Rev. 751, 762-63 (2000)).

(194.) How fast are fast-track courts?, supra note 115 (quoting S.S. Rathi).

(195.) Principles of Problem-Solving Justice, supra note 167, at 5-6.

(196.) As Ariel Dulitzky writes about the Inter-American Human Rights regime, "what makes a human rights body effective and how the pursuit of efficacy could complement or contradict the purpose of being an effective adjudicator simultaneously ... [requires a] goal-based definition of effectiveness ... in order to both assess the performance of the Commission and the possibilities and limitations of the measures that the Commission could adopt to speed up its process, and to deal with its current backlog." Ariel Dulitzky, Too Little, Too Late: The Pace of Adjudication of the Inter-American Commission on Human Rights, 35 LOY. L.A. INT'L. & COMP. L. REV. 131,137 (2013).

(197.) Extending concerns raised by Aya Gruber over the "feminist-police power alliance" to judicial officers in fast-track courts who may inadvertently deprive victims of their agency and autonomy, by focusing exclusively on the perpetrator or future harm to the community. Aya Gruber, Rape, Feminism and the War on Crime, 84 wash. L. Rev. 581,608 (2009).

(198.) Id.

(199.) Particularly given the language of some of the judicial decisions discussed above. Even some of the word choices evident in the Justice Verma Report and the new legislation establishing fast-track women's courts reveal unintended biases against women and stereotyped conceptions about gender.

(200.) Id. at 611.

(201.) Id.

(202.) The Urban Institute's Justice Policy Center is a think tank that evaluates justice policy and practice at the national, state, and local levels and identifies avenues for reform. See justice Policy Center: About, urban institute (2016), sound-strategies-combating-crime-and-promoting-public-safety.

(203.) Maytal, supra note 159, at 210.

(204.) See id. at 216.

(205.) Id. at 209.


(207.) See id.

(208.) Id.

(209.) How fast are fast-track courts?, supra note 115 (quoting S.S. Rathi).

(210.) Evaluation, supra note 206, at 71.

(211.) Id.

(212.) Id.

(213.) Vivek Maru, Between Law and Society: Paralegals and the Provision of Justice Services in Sierra Leone and Worldwide, 31 Yale). Int'l L. 427,436 (2006).

(214.) Id.

(215.) Id.

(216.) Id. at 441.

(217.) Id. at 431-37.

(218.) Id. at 441.

(219.) Amos Sawyer, Reconstructing the Rule of Law, Harv. Int'l Rev. (Dec. 19, 2008),

(220.) Id.

(221.) Id.

(222.) Id.

(223.) See JUSTICE VERMA REPORT, supra note 7, at 281-87 (discussing the "starting point for arriving at a standardised protocol" for the role of police, hospitals/doctors, Committees, Sessions Courts, Magistrate Courts, child welfare agencies, prosecutors and other concerned authorities in cases of sexual offences); see also Report on the Special Rapporteur's Mission to India, supra note 150, at 50 (referencing the holistic approach recommended by the Justice Verma Report).

(224.) Principles of Problem-Solving Justice, supra note 167, at 7.

(225.) Id.

(226.) Id.

(227.) Id.

(228.) Overview of the Worldwide Best Practices for Rape Prevention, supra note 152, at 94. There are reports that some district courts in Delhi--though it is unclear whether this is mandatory or limited to fast-track courts--have already been using "so-called 'vulnerable witness' courtrooms where the evidence of those who have been sexually assaulted is recorded," as needed during sexual crime prosecutions. How fast are fast-track courts?, supra note 115.

(229.) See Kathryn Gillespie Wellman, Taking the Next Steps in the Legal Response to Domestic Violence: The Need To Reexamine Specialized Domestic Violence Courts from a Victim Perspective, 24 Colum. J. Gender & L. 444,446 (2013).

(230.) See id. at 466; see also Gruber, supra note 197, at 608 (commenting on rape reform's myopic focus on women as victims, a view that runs counter to a thick view of female autonomy).

(231.) See id. at 465.

(232.) Justice Verma Report, supra note 7, at 304-305.

(233.) Victim advocates play critical roles in the U.S. specialized domestic violence courts. Principles of Problem-Solving Justice, supra note 167, at 3. ("Victim advocates in domestic violence courts conduct intake interviews with victims who are seeking assistance. With knowledge of each victim's needs, advocates can customize a safety plan to provide appropriate support and resources.").

(234.) For example, during the Home Court Part era in the United States.

(235.) Sandip Roy, In Memoriam: Suzette Jordan on Her Battle to Stop Being the 'Park Street Rape Victim', FIRSTPOST (Jul 2, 2013, 14:44), from-park-street-rape-victim-to-suzette-jordan-921463.html.

(236.) Id.

(237.) Id.

(238.) Id.

(239.) For example, the Centre for Law and Policy Research, a non-profit organization based in Bangalore, India has recently published a study of the impact of fast-track courts in the state of Karnataka. See KOTHARI & RAVI, supra note 11. By collaborating with such organizations in states across India, the fast-track system could ensure that outcome monitoring and analysis takes place, and as an added benefit, from the perspective of a non-governmental community enterprise. In a collaborative environment, the findings or study results, whether published or not, are less likely to be overlooked by government agents and should reach the fast-track courts directly.

(240.) See Evaluation, supra note 206, at 29.

(241.) Id. at 3, 6-8 (discussing the fast-track system in England and Wales).

(242.) In Liberia, with rape cases looming large even in the post-conflict period, and under pressure from NGOs, in 2008, the government established a special court to address rape and other gender-based violence. Cummings, supra note 186, at 239. These measures attempted to address the scarcity of such claims being adjudicated in existing courts. The relative lack of cases was evidently not because there were no sex crimes, but rather because victims did not pursue their cases in court or because prosecutors were too busy responding to other types of crime. The special rape court opened in Monrovia on February 24, 2009, with jurisdiction over "rape, sodomy and other forms of sexual assault, including abuse of minors." Id. A female judge was assigned to the court and worked collaboratively with officials from the United Nations and the Liberian government, including public prosecutors, defenders, and health officials to establish operating guidelines. While a special court "promises to give more dedicated attention to rape and sexual-violence prosecutions, it may also raise the necessity of other reforms" to address the "lack of resources and facilities to deal appropriately with victims and to house juvenile offenders separately from adults," for example. Id.

(243.) Following an appeal by the first lady to the Ministry of Justice after the United Nations documented that high levels of inequality between men and women resulted in increasing gender-based violence, the Acting Chief Justice Lombe Chibesakunda "called for legislative amendments to allow for the establishment of fast-track courts" to address the rising tide of gender-based violence in Zambia. Sylvia Mweetwa, Zambia: Gender Based Violence Fight--Can the Year 2013 Bring Hope?, Times of Zambia (Jan. 7, 2013). Looking to successes on this front in Brazil, Zambian leaders hope that decreased inequality will result in a reduction in domestic violence, Id.

(244.) In Bahrain, for example, a fast-track human rights court is being established to issue verdicts within six months of receiving complaints. Issues addressed include torture and discrimination--both of which are "compelling" interests that seem to justify the accelerated and streamlined trials. Sandeep Singh Grewal, Rights Court Will Fast-Track Cases, Gull daily News (May 26, 2014), 7. In Ghana, the government's fast-track court system to help generally alleviate judicial inefficiency in both criminal and civil cases came under attack and barely withstood constitutional challenges concerning due process. Indeed, the impetus for the courts in Ghana was to reduce case-loads rather than deterring specific crime. In the controversial decision of Tsatsu Tsikata v. The Republic of Ghana, where a former Chief Executive of the Ghana National Petroleum Corporation challenged the constitutionality of the fast-track court where he was being prosecuting for financial crimes against the state, Ghana's supreme court ultimately held that the fast-track courts were consistent with the constitution. The court reasoned that because the constitution authorizes the chief justice to create divisions in the courts and the chief justice of Ghana had established the fast-track courts rather than the legislature, the creation of the fast-track system was consistent with the constitution. Moreover, the court concluded that the fast-track courts in Ghana were nothing more than existing "high courts" with certain automated processes. Sec Fast Track Courts Are Now Constitutional, Modern Ghana (June 26, 2002), The Indian government has also discussed the possibility of using fast-track courts to resolve disputes in the area of high tech commercial law. See law Comm'n of India, One Hundred and Eighty-Eighth Report on Proposals for Constitution of Hi-Tech Fast-Track Commercial Divisions in High Courts (2003), doc/185454903/.

(245.) "Although the right of independent judicial review has become an almost universally applicable norm," there is no "clear jus cogens formed around the requirements of due process," and perspectives differ, particularly among Western and non-Western countries. Vanessa Baehr-Jones, Mission Possible: How Intelligence Evidence Rules Can Save U.N. Terrorist Sanctions, 2 HARV. NAT'L SEC. J. 447, 488 (2011) (emphasis added).

(246.) Fast Track Courts Will Speed Up Disposal of Cases: Reddy, The Hindu (Nov. 11, 2011), (discussing the creation of India's first fast-track courts in 2001.

(247.) Soutik Biswas, Do India's 'Fast track' Courts Work?, BBC News (Jan. 9, 2013),

(248.) Richard Calland & Thabani Masuku, Tough on Crime and Strong on Human Rights: The Challenge for Us All, 4 L. Democracy & Dev., no. 1,2000, at 121-135.

(249.) Id.

(250.) See supra note 244 and accompanying text comparing general fast-track courts designed to address burdensome dockets to fast-track courts created as a response to crisis--whether a specific incident, or recurring pattern; see also Part II.

(251.) "Under the Fast Track Court Scheme, a sum of Rs. 502.90 crores was sanctioned as special problems and upgradation [sic] grant for judicial administration for five years till 2005." Sridhar, supra note 103. That funding was then re-extended until 2011. See breakdown of funding for each year between 2005 and 2011. See Fast Track Courts, DEP'T OF JUSTICE, (last visited July 13, 2016). The next injection of central government funds came in the aftermath of Jyoti Pandey's death, and the fast-track courts established pursuant to that wave of funding are arguably sustainable in the long-term. "Even if the states have to ... bear the entire expenditure [for fast-track courts in the absence of funding from the central government,] the fund requirement is less than 0.01% of the budget of most states." Dubbudu, supra note 106.

(252.) As of December 1, 2012, there were only 613 High Court judges serving across India as opposed to the sanctioned 895 judges. This reflects a 32 percent vacancy of judges across various High Courts in the country. Similarly, as of September 30, 2011, the sanctioned number judges at the subordinate or district court level was 18,123 compared with the 14,287 judges then currently serving (i.e. 21 percent vacancy). Pallavi, An Overview of Fail Track Courts, PRS BLOG (Dec. 31, 2012), According to the Chairperson of the Indian Law Commission, "Fast-track courts ... are not the solution to the problem. Too many cases are being fast-tracked: sexual cases, cases against legislators, corruption cases. But our perspective should be to bring systemic reform to all levels of the judicial hierarchy. Fast-track courts decide the cases in a shorter period, but when the appeals are filed in higher courts they are stuck for a long period." Rukmini Shrinivasan, "Courts should be dealing with serious criminal offences, not with petty cases," THE Hindu (Aug. 23, 2014), -offences-not-with-pettv-cases/article6342812.ece. However, it appears that some states are committed to making the goal of deterring sexual crime more than a temporary goal that endures beyond the furor of a high-profile crime. Sec, e.g., Kothari & Ravi, supra note 11, at 6 (supporting the proposition that the state government is "closing down 39 fast track courts" and establishing new permanent courts--although it is unclear whether the specialized nature of the fast-track courts will continue when the 39 judicial officers transition into new permanent district courts); see also Notification, High Court of Karnataka, Bengaluru (Mar. 30, 2015), (citing Karnataka Government Order No! Law 137 LCE 2014 (Mar. 26,2015)).

(253.) An alternative that has been offered to the fast-track courts, is adopting American-style criminal law reform. Such reforms could address backlog in criminal dockets including those dealing with sexual crimes, through increase in plea-bargaining. However, such an alternative lacks the potential to attain the more nuanced goal of reducing backlog while also deterring crime and restoring victims. See generally Allegra M. McLeod, Exporting U.S. Criminal Justice, 29 Yale L. & Pol'y Rev. 83 (2010) (arguing that the U.S. criminal justice export has played a critical role in shaping how states and non-state actors respond to a range of global criminal justice challenges).

(254.) Greenberg, supra note 71, at 804 ("Finally, the use of criminal law emphasizes individual, rather than systemic, responsibility for domestic violence. This emphasis might seem counterintuitive because declaring a particular form of conduct criminal can be understood as a statement that a significant segment of society opposes such conduct and believes that social resources should be used to prevent it. However, at a more practical, nonideological level, criminal statutes focus on the injury done by one abuser, usually the husband or his family, to one victim. Individual women must plead their cases on their own. There is no mechanism within the criminal law system for aggregating these cases and bringing a 'class action.' Criminal laws do not place intimate violence in a social context whereby women's lives are subordinated to men's and whereby the violence can occur or continue because women have very few alternatives to life with their husbands. Although the violence would not have been made criminal if it had not been communally identified as a wrong, the focus on individual cases and low conviction rates in these cases undercuts this message.") (citations omitted).

(255.) Sec Chapter Fourteen on Education and Perception Reform, justice Verma Report supra note 7, at 383-411.

(256.) Pronoti Datta, How Improved Sanitation Can Mitigate Crimes Against Women, Mumbai BOSS (June 2, 2014 7:56 AM),
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Title Annotation:III. New-Era of Fast-Track Courts B. Specialization as an Instrument of Normative Change through V. Conclusion, with footnotes, p. 85-109
Author:Peterson, Vandana
Publication:Yale Human Rights and Development Law Journal
Date:Jan 1, 2016
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