2012 has left me bruised both on personal and collective level. I think there is a consensus that the event that affected us most was the brutal gangrape in the capital. As I pen this column the protests are still in progress and while solutions are being propounded, lasting resolution is still very distant.

I have followed the episode very carefully both in the print as well as broadcast media and barring a few exceptions have to voice my dismay again at the way the Fourth Estate has covered the issue. All credit to them for relentlessly exposing the pitfalls of our political class and flunkeys but in attempting to analyse and look for solutions they botched up again. And the way the debate is progressing I have my doubts whether we are going to be in a position whereby we can claim that we are serious about tackling the issue.

Routine calls for harsher punishment do regular rounds on the TV and in the newspapers. It appears that the number of those advocating capital punishment has significantly gone up in the last month. There have been calls for death penalty being introduced for statutory rape.

Shaken the way I was, for a fleeting second even I – a diehard opponent of the death penalty since the late 1960s – was forced to reconsider my position. But on objective analysis I reverted back to my original position. And no Mr Arnab Goswami, I am not a “liberal faint-heart” as you described those who oppose the death penalty. I expected a more reasoned debate on the enlightened TV channels which included forensic scientists, philosophers and psychologists. Instead, it was politicians, politicians and politicians all the way. And they were more interested in pursuing a political agenda which I am afraid has completely derailed the entire discourse. I am afraid none of the debates on TV or in newspapers has left me wiser. If anything, the polemics that some journalists have indulged in have only served to demean the protagonists.

Suffice it to say, if a philosopher or a credible forensic scientist were to convince me that expanding the scope of capital punishment would act as a deterrent, I would join their bandwagon. I am yet to be convinced that it was the absence of harsh penalties which resulted in this monstrosity – a very politically incorrect position to take but I am open to persuasion.

In order to enact stricter laws, dictates of logic would suggest that we have to be completely satisfied that the existing laws have been applied judiciously and have been found wanting. My own submission is that the laws we have at present have NOT been judiciously and evenly applied for us to draw that inference. The truth is that heinous though this crime was, the remedy which is likely to be effective is unlikely to be any different from the one that is needed for other forms of felonies.

I am reminded of the great US statesman, Hubert Humphrey, who had once said:

“There are not enough jails, not enough police, not enough courts to enforce a law not supported by the people.”

And on that note it is important to dissect the causes of this instance of human degradation and bestiality.

The first and the foremost is the problem of gender equality and justice which our country is grappling with and which unfortunately is the axiomatic truth. A truth which makes itself obvious over and over again through ill-informed and motivated people like the Khaps, clergy and Indian politicians of every shade and colour. To be fair, there has been emphasis on this in many of the TV debates. The problems are self- evident and I do not think we require a judicial commission to look into those.

Khaps and clerics who voice pronouncements which limit the rights of women or demean them should be subjected to criminal prosecution .The executive and the legislature have been passive spectators to the attempt by these retrograde Neanderthals to take us back to the 12^th century because again electoral arithmetic counts more than a principled conviction.

The second and perhaps the most pernicious problem is the criminalisation of the entire polity inclusive of the legislative and executive arm. And here no political formation can plead innocent. Day-after-day, we have noticed the shabby attempts by politicians to protect their own lot despite very serious criminal charges against them. And it is futile to expect the political class to pay anything more than lip service here, as we have repeatedly witnessed them do just the reverse.

The truth is that the best insulation from law that criminals can now expect is to join a political party. That would ensure that the police would never get to touch them – and if once in a blue moon they do, the other political parties would gladly welcome them within their fold without any questions.

The third, is the complete distrust with which the police are being perceived today by the “aam aadmi”. Delhi Police has been rated the most corrupt force in India by the Crime Records Department and anyone who has had anything to do with them can only concur. Their misdemeanour in this case is just one in the long catalogue which includes ensuring judicial custody for over a year for a person on a 302 charge when the deceased was alive, promoting police extortion from street vendors as the latter according to former Joint Commissioner Maxwell Perreira were “vermin”, and countless other cases of total disregard for any human rights or the statute. The Commissioners, right from the days of the infamous PS Bhinder of Emergency fame, have generally tended to be appointed for political considerations. The other police forces also do not carry credentials which would inspire confidence. Repeated polls have shown that the police are the most distrusted and hated arm of the government machinery.

The crying need for police reforms has been egregiously overlooked over and over again and the reasons are not difficult to fathom. Unless the police is seen as an honest broker, criminals would continue to have it good – as they do so now!

I recall years ago the UK Home Secretary Jack Straw once took his adolescent son to the nearest police station and asked his son to make a statement. The boy had dabbled with drugs. Can we honestly expect our politicians to follow this example and the police to take remedial action the way they did in the UK? In an earlier article, I had mentioned Gurkirat Singh’s case. Countless others can be cited.

I am making the point here to illustrate that for an Indian politician winning an election, even if it is through muscle power, is an acceptable prospect. No party is immune from this charge. Which makes a lot of people, including myself, suspicious when they voice platitudes.

The fourth dimension which has not been adequately discussed but should have been, is the breakdown of the criminal justice system. Years ago, an Indian judge – Justice Hansraj Khanna – in a lecture had warned that non-application of judicial minds in the lower courts was happening frequently and could pose a greater danger than police corruption. Ruefully, his timely warnings were not heeded leading to several miscarriages of justice. Those with the resources are able to seek redressal in higher courts, but I believe they constitute only a limited proportion of those seeking redressal. Judiciary in India enjoys insulation from public scrutiny and perhaps there is a case for that. But if the judiciary cannot ensure total justice where else can an aam aadmi go to seek it?

While on the subject of judiciary I, having had some legal training myself, would like to add another dimension. With a single figure conviction percentage we have to wonder if the “adversarial/accusatorial” system of justice we have inherited from the British serves our needs. Even in the UK, the conviction rate hovers around 25 per cent. In the accusatorial system there is hardly any inquisition, charges are laid in a hurry and then it is all a question of the lawyers presenting their briefs with the judge only acting as a referee.

From my student days, I have always been a fan of the “inquisitorial system” of justice followed by the French system, as I believe it ensures better justice. The inquisitorial system requires multiple inquisitions by the police, at least two by the prosecutor and by a judge before the charges are laid. The judge performing the inquisitorial role is different from the judge at the trial. The conviction rate in France is over 95 per cent and very few miscarriages of justice have been reported.

And lastly, the punitive system which on paper has a reformatory principle. We all know about the rampant unbridled corruption that goes on in our prisons. And we do know that influence pays a large role in ensuring privileges which run contrary to the espoused principle. I had mentioned Amarmani Tripathi’s case in my last article. This Samajwadi Party politician is serving a life term for killing his pregnant girlfriend. Headlines Today exposed the privileges he continues to enjoy. And Manu Sharma’s discotheque rendezvous is no longer a secret.

It is these shortcomings we need to address before we ask for new laws. The laws are there. There is no will on part of any arm of the government to ensure the application. Most debates seem to have glossed over this fundamental issue.

Image Source: [http://www.flickr.com/photos/ramesh_lalwani/8296156883/]

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