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Media Debates & The Delhi Rape

Why are media debates on the Delhi rape not asking for the implementation of laws which already exist?

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Justice for Rape

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 12th 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.

Contact Ashok

 

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

 

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More from Dr. Ashoka Prasad


  • John Smith

    I had to post my comments somewhere and this story on the topic is as good as any, possibly better, in the hope that some sensible people will read them (my comments).

    1. How is the girl, who was raped, a braveheart? The poor girl was just a victim. You can’t kill a person and then call him/her bravehear because he/she succumbed to your attack.

    2. Indian is a banana republic. Everyone, including the lawmakers, has judged the accused guilty, and pronouned the sentence. So much so that the lawyers are refusing to defend the accused. Even in a black-and-white case, the accused, in any civilized society, would be entitled to defence. It’s not enough to do the right things. We must do them in the right way too.

    3. I read somewhere that the sixth accused is son of a marginal farmer in Bihar. How many of middle class know what is a marginal farmer. Just meet this guy’s mother. You may have more questions to answer than ask.

    4. I wanted to write a piece titled “As I lay dying” describing the uproar from the dying girl’s perspective. Many of these young protesting boys just lack the physical courage to rape. These are the guys who would pinch a girls’ bottom in the bus, touch them inappropriately, whistle at them, and make their life in Delhi diificult, in more than one ways. Just because they haven’t yet raped girl does not make them any better (it makes them marginally safer though) than those who have.
    5. For weeks India discussed how to punish the culprits with little debate on how to rehabilitate the victim.

    I first thought of writing these comments on Abhinandan Sekhri’s piece but that is a foolish piece of journalism inspired by a desire to sound different and profound. Even Newlaundry, started with the best intentions, is not immune from the human vanity.
    Cheers!
    John Smith, New York.

    • Kunthit

      Thank you, John, for bringing it up here. This is definitely a much better space than where you ‘tested’ your comment posting. In fact, despite having typed a paragraph in response to that poor piece of writing, eventually, I too, refrained myself from commenting on the said article (and on the first reader’s comment therein)- it just wasn’t worth it! You’ve raised some good issues here except for the point 3- leave that, at least, till the 50th 5-year plan is implemented {sigh}- till then, let us just talk about crime and punishment, by and of, rich and poor alike. Till then, let us be more concerned and sympathetic toward those poor farmers committing suicide every year than being emotional and considerate about criminals from underprivileged backgrounds.

    • raghu

      I am glad some one wants see facts…..I disagree with you on point 2 & 3 ….Banan Republic, might look like one but any developing nation, the rich and powerful have there way….
      On Point 3 how is it relevant about mothers story here, if it was theft or robbery , I could have agreed but its brutal rape…………And to be more specific, the victim also belonged to poor family, just because she went to watch “Life of Pi ” with a guy in multiplex you cant ignore the family circumstances.

      On point 1….your bang on…..the likes of Mrs Ghosh (IB-N) and few anchors in ND-TV have started sympathetic TRP gaining shows by calling the victim as brave heart, she fought while resisting but in reality she was victim of that assault.

      BANG ON JOHN

  • Indian

    “The fourth dimension which
    has not been adequately discussed but should have been, is the breakdown of the
    criminal justice system.”

    I am thrilled that you have taken it up. I am having a brush with legal system for last few years.

    My conclusion is that criminals in our country have no fear of law.

    More than police, it is prosecution and courts who are responsible for the state of affairs.

    Criminals takes courts for a ride and they are ever willing to oblige.

    This is what Supreme Court has said in a case.

    “Witnesses tremble on getting summons from courts, in India, not because they fear examination or
    cross- examination in courts but because of the fear that they might not be
    examined at all for several days and on all such days they would be nailed to
    the precincts of the courts awaiting their chance of being examined. The
    witnesses, perforce, keep aside their avocation and go to the courts and wait
    and wait for hours to be told at the end of the day to come again and wait and
    wait like that. This is the infelicitous scenario in many of the courts in
    India so far as witnesses are concerned. It is high time that trial courts
    should regard witnesses as guests invited (through summons) for helping such
    courts with their testimony for reaching judicial findings. But the malady is
    that the predicament of the witnesses is worse than the litigants themselves.
    This case demonstrates the agony and ordeal suffered by witnesses who attended
    a Sessions court on several days and yet they were not examined in full. The party
    who succeeded in dodging examination of such witnesses finally enjoyed the
    benefit when the Sessions Court acquitted them for want of evidence. The only
    casualty in the aforesaid process is criminal justice.”

    What more can be said?

  • http://twitter.com/myths123 Mythili P

    The media did ask for that. In face, I remember in the first few debates on one of the English channels, the panel of jurists included KTS Tulsi and Kiran Bedi and they said that the problem is certainly, not the severity of punishment. Your article does nothing to inform or educate. It is an exercise in vanity.

  • Pratap bahadur

    An old dictum comes to my mind ” UNIFORM & CONSISTENT APPLICATION OF LAWS ACROSS ALL SECTIONS OF SOCIETY ”

    All the wings created by the constitution — Parliament, Executive & the Judiciary Have failed the citizen. In my view the raison detre of every civilized society is to safeguard, protect & promote the ordinary citizen’s interest only & the nation & its institutions have failed miserably in this.

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