Action against victim of rape creates furoreAchham District Court judge in the dock. Questions raised over his competence as well as Nepal’s judicial system.
Achham District Court’s decision last week to hand down a three-and-a-half-year prison sentence to a girl who had filed a rape case against a man has raised questions not only over Judge Nabin Kumar Joshi but also over Nepal’s legal system.
The girl from Kamal Bazar of Achham had filed a rape charge against Nandaram Khanal of Ramaroshan Rural Municipality-4, saying that he had established a sexual relationship with her at her home in Kamal Bazar and again in a nearby jungle on the night of January 29, promising that he would marry her and take her to Mumbai only to backtrack on his promise later.
The victim had told the Post’s sister paper Kantipur that she had filed the complaint to the police two days later, but she was goaded into changing her statement later before the court.
After police investigated the complaint, the district attorney filed a case against Khanal at the Achham District Court on February 22.
But stating that the victim herself changed her statement, the court slapped a three-and-a-half-year jail term on the victim.
Clause 44 of Criminal Procedures Code has a provision that one who changes the statement can be sentenced up to three months and fined Rs5,000.
However, Joshi’s verdict has slapped the jail term several times higher, further victimising the victim.
He, however, cites a law that no longer exists to hand down the jail term to the girl, raising concerns among the legal fraternity and rights activists whether competent judges are being appointed in Nepal’s courts.
The victim had registered the first information report with the police on January 31, two days after she was raped. The police, after an investigation, registered the case with the district court on February 22. Joshi issued the verdict based on an amendment to the Criminal Procedure (Penal Code) done through an ordinance. However, the ordinance lapsed on February 7, before the case was registered at the court, as it was not endorsed by Parliament within 60 days since the commencement of both Houses of the federal parliament.
A senior justice of the Supreme Court said the decision of Achham District Court on the rape victim was unusual. “In general, victims who file a case are not punished,” the justice told the Post requesting anonymity. “But the case must be studied thoroughly before making any judgement on it. I think the authorities concerned would do the needful.”
The justice said in the rarest of cases the victims are punished but only if there is sufficient evidence, and if such a decision is taken, minimum punishment is given.
It has been a week since Joshi passed the judgement but the Judicial Council has yet to take up the issue. It’s the Judicial Council that is responsible for taking action against judges if they make mistakes. But legal experts say the Council has failed to take action against erring judges in an effective manner, which is a cause for concern. According to them, the Judicial Council cannot take action against the judges because they fear taking action due to various interests and also because they don’t know the processes to follow.
“Officials of the Judicial Council lack the courage to initiate action against judges because they have various interests of their own and they don’t even know the process,” KC told the Post. “The leadership of the judiciary only makes promises but there is nobody to actually reform the judiciary.”
Newly recommended Supreme Court justice Til Prasad Shrestha, during his hearing on March 29, had said a separate independent commission was necessary to probe the wrongdoings of the judges.
KC said the acting Chief Justice Deepak Kumar Karki must start enquiry against the Achham District Court Judge Joshi and take appropriate action against him because a victim cannot be accused and taken action against without completing the due course of a fair trial.
“These sorts of decisions by some incompetent judges are responsible for damaging the judiciary,” said KC. “The leadership of the judiciary must take appropriate action to control the damage.”
The Judicial Council has a responsibility to study controversial decisions and take necessary actions against the judges passing such verdicts.
Spokesperson for the Judicial Council Man Bahadur Karki said the Council will study the decision of the Achham District Court as many issues have appeared in the media and it is the constitutional duty of the Council to take necessary action against any judge if they commit mistakes. “But we need to study the matter thoroughly and we will do that,” said Karki.
A group of youths has started protests at Maitighar Mandala against the Achham District Court’s decision to slap three and a half years of prison term on a rape victim who had sought justice from the court.
Placards saying ‘Justice system is just for rich, upper caste men’ among others were displayed during the protest organised by Pratirodh Jana Adhikar Andolan on Saturday.
The district attorney can appeal to the High Court against the district court’s verdict. It can overturn the decision from the lower court.
Former chief justice Anup Raj Sharma, however, said that such judges must be sacked after conducting a probe into the case and seeking clarifications from them if the current leadership wants to save the judiciary from damaging its image.
“How can a victim be punished without being made a defendant?” Sharma said. “We cannot expect someone to be a judge if s/he does not know whether the law on the basis of which they made a decision exists.”
Without firing some judges, Sharma said, one cannot expect the judiciary to make up its image because judges think they know everything and they don't study.
“But nowadays most in the general public understand what is happening and they can decipher that the decision is either influenced by bribery or comes due to the incompetence of the judges,” said Sharma.
But Sharma said the Judicial Council, which is responsible for punishing the judges, tends to protect them instead.