[This Article has been authored by Saloni Rani, a 2nd Year Student at Rajiv Gandhi National University of Law, Punjab]

Introduction

In the recent Judgement of K.P. Kirankumar @ Kiran v. State by Peenya Police (hereinafter, kiran), the Supreme Court dismissed the appeal filled by appellants and ruled their conviction for committing crime under Immoral Traffic (Prevention) Act (ITPA), 1956. Considering factors like minor’s age, socio-economic condition, manifest injustice, demand for illicit sexual intercourse, the court relied on victim testimony against procedural lapse under the act. The Court also drew its reasoning from State of Punjab v. Gurmit Singh & Ors., wherein the court stated that “If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars.”

This decision effectively renders the procedural safeguards under Section 15(2) of ITPA as directory provision rather than mandatory. Thereby, the court established victim-centric approach towards evidentiary hierarchy prioritizing minor victim’s testimony over procedural compliance. This article attempts to study the implication of Judgement while also, analyzing the approach and rationale adopted in this judgement. The author argues that while Kiran advances a victim centric approach yet risk procedural certainty.

Through this article, the author attempts to analyse three seminal questions that arise from the judgement. Firstly, it analyses the procedural safeguards and victim’s testimonies; secondly, it examines whether the reliance on the victim’s testimony can be separable from PTSD and if not, what safeguards should guide the Judiciary; and thirdly, it evaluates the need for strict enforcement of victim-centric approach in India.

Procedural Safeguards under ITPA: Mandatory or Discretionary?

Section 15(2) of ITPA mandates a specific procedure to be followed during the search and rescue. This was meant to ensure that the entire procedure is followed while protecting the rights of victim. In Gaurav Jain v. Union of India, the Supreme Court held that if rescue operations are conducted without accountability (that follows the procedure), it would itself amount to abuse and indignity. Furthermore, the Court in State of Punjab v. Balbir Singh held that the proper procedure has to be followed while search and seizure of narcotics substances, which if not followed amounts to violation of fair trial. Although, this case related to Narcotic Drugs and Psychotropic Substances (NDPS) Act, it holds relevance in ITPA also, due to functional relation between raids and rescue operations. Procedural safeguards do not merely serve as an evidentiary checklist, but also flow from the constitutional safeguards under Article 21. Following this ensures that the due process of law is followed as laid in Maneka Gandhi v. Union of India but questions the credibility of minor victim testimonies.

On the other hand, in State of UP v. Chhotey Lal (hereinafter, Chhotey),the Supreme Court had examined the credibility of victim. The Court in this case, relied on Vijay Alias Chinee v. State Of Madhya Pradesh,where the Court ruled that if victim’s testimony is credible, it is sufficient for conviction of the accused without relying on corroborative evidences. Thereby, the Judgement of Chhotey lays down the Judicial Commitments to protect victim of sexual crimes and ensure that conviction and justice in such offences should not be delayed by any procedural technicalities. Thereby, it prioritises a victim-centric approach. This strengthens the protection of minor testimonies but questions the procedural fairness and rights of accused on other hand.

Furthermore, the Palermo Protocol, adopted in 2000 by United Nation General Assembly talks about the human trafficking; and India is one of states who had ratified and adopted this protocol. It mandates a balanced approach with “3P” framework that is, prevent trafficking, prosecute traffickers, and protect victims. Article 6 of the protocol emphasizes on protection of victims of this offence. The Office of the United Nations High Commissioner for Human Rights (OHCHR) Principles and Guidelines also follow the trauma-informed approach. They believe that minor inconsistencies are not the ground for dismissal calling for sensitive Judicial Approach.

The Court in Kiran, aligned with the principle laid in Chhotey Lal and focused on victim’s testimony. Furthermore,the rational adopted in the case has reasonable nexus with objective of Palermo Protocol. Instead of focusing minutely if entire procedure is followed, reliance is made on ‘testimony’ of victim. This thereby, leaves the discretion on Court to either account for such ‘minute procedural errors’ or exclusively recalibrate the entire incident around the victim’s testimony based on seriousness, age or nature of offence.

This shift raises various concerns. Although the judgement strengthen the victim centric approach, it simultaneously brings into light the inconsistencies which may arise with victim’s testimony. This thereby, necessitates the closer examination of whether such discrepancies stem from trauma or fabrication. Thereby, author shall analyse how the court acknowledge this distinction and explore various safeguards which may limit Judicial subjectivity.

Distinguishing PTSD from Fabricated Narrative

In Kiran, the Court relied upon the minor victim’s testimony which in itself contains contradictions and discrepancies, for example,in giving the house layout and highlighting injuries. Yet the arguments contended by defence on these contradictions were termed as ‘minor’ inconsistences, ruling that her narrative carried a ‘ring of truth’.

The jurisprudence on PTSD could be traced back to the ruling of State of Maharashtra v. Rajendra Jawanmal Gandhi (hereinafter, Gandhi)where the Supreme Court ruled on trauma-induced testimonial inconsistencies. The case revolved around the rape of a 8-year-old girl where the court hinged testimony of victim with memory fragmentation. Thereby, the court distinguished between psychological distress and fabrications. Further,the court mandated clinical psychologist evaluation for trauma markers, where the court shall summon to forensic psychologist to differentiate memory fragmentation from falsehood. The Court in Kiran operationalized Gandhi by applying the rationalise in trafficking context. Although the ruling of Kiran’s minor inconsistency contradicted Gandhi’s spatial inconsistencies, yet it expanded the scope of victim’s testimony by implicitly accepting judicial intuition and broadening its ambit to commercial sexual exploitation.

While the Judicial recognition of trauma induced inconsistencies is a progressive step towards victim’s safety, the flaw here is that this rationale will attract judicial biasness and lead to subjective interpretation of ‘rings of truth’. Furthermore, not mandating the scientific tests or expert’s opinion of victim’s mental condition will put high burden on defence counsels. The same concern is expressed in Malimath Committee Report where the Para 7.4. says that even though investigation is the foundation of criminal system, it is not trusted by law and the courts, adding that if this basic problem is not solved the innocent may unnecessarily get punished.

Hence, the current jurisprudence reflects an incorrect amalgamation of scientific tests and legal reasonings. Thereby, qualified and forensic experts should be permanently appointed for dealing with crimes related to minors and vulnerable groups. This will ensure the proper examination of mental health of the victim, ensuring Right to Health under Article 21. At institutional level, trauma-induced guidelines should be formulated in order to integrate psychology with fair trial.  Mandatory psychological evaluation and expert guidance can assist Court in achieving two objectives: first, swiftly moving towards ‘victim-centric’ approach and second, safeguarding the procedural rights of accused.

Furthermore, to mitigate Judicial subjectivity, a systematic scrutiny mechanism supported by mandatory recordings shall be introduced in the courts. These recordings shall cite the ‘reason’ of distinguishing between the ‘minor’ and ‘material’ contradictions. This requirement will preserve the judicial discretion while also ensuring transparency and fairness of trial.

Conclusion

The judgement in Kiran v. State by Peenya Police exposes the doctrinal tensions between the procedure and reliance on victim’s testimony. The court’s decision to comparatively weight minor victim’s testimony calling the procedural lapse as ‘minor’ is a welcome step towards victim-centric approach adopted by India. However,it also raises serious concerns over ‘fairness of procedures’ and rights of accused. Our law says ‘a person is innocent until proven guilty’. This approach may expose an innocent person to unjust conviction.

Kiran thus, highlights the need for stricter enforcement of such laws and guidelines that protects the dignity of victim without diluting the mandatory safeguards. Given the existing statues like ITPA Provisions and Constitutional framework, a stricter implementation of the law is the need of hour. Thereby, mandatory expert opinions and scrutiny mechanism will ensure the protection of victim’s right without harming the fair trial.