| by R. K.
Raghavan
( December 20,
2012, New Delhi, Sri Lanka Guardian) The nationwide outrage over the violence
on a hapless physiotherapist in Delhi is quite natural and understandable.
Every rape is a slap on the face of those elected to rule. However, there is no
place for either sentiment or excesses in response
Activists listen
a speech outside the Delhi Chief Minister’s residence during a protest in New
Delhi on Wednesday following the gang-rape of a student on December 16. The
attack sparked new calls for greater security for women in New Delhi.
How can a woman
who has not only been violated but also physically assaulted all over her body
lead a normal life for the rest of her life? This is especially in a country
where there is abominable hypocrisy over the status of a woman. Criminal
justice attitudes are governed somewhat by condescension over the female of the
species. It is not as if some unlettered policemen alone are guilty of this. A
few in the judiciary as well have occasionally slipped up; as for instance, one
High Court Judge recently remarked how a lawyer -- a single woman -- could
speak with any credibility about a matrimonial dispute before the Bench.
What irritates
many citizens is the plethora of platitudes and some gratuitous remarks
generated by an incident of the kind reported from Delhi. There is also the
unabashed attempt whenever there is a brutal crime against a woman to play to
the gallery. This tends to mask the obvious governance failure. Every rape is a
slap on the face of those elected to rule. However, there is no place for either
sentiment or excesses in response. If at all we can bring about an improvement
in an already bad situation and restore public confidence in the government’s
ability to protect women, we need a balance in our perspective. Just as
shouting is no argument and will not prevail in a sensitive matter before a
court, war cries are not going to deter the potential rapist who is lurking in
the corner waiting for his prey.
Tougher
punishment?
We have never
seen in recorded history harshness in penalty alone stopping the criminal. The
impact of a sentence is ephemeral. This is why I believe that the mindless
demand for the death sentence to a rapist will not touch even the fringe of the
problem. In this sense homicides and rapes are analogous. A majority of such offences
are caused by an animal impulse that sees no reason but craves for instant
gratification for lust or vengeance. We saw this in Punjab recently when an
Akali leader killed a policeman trying to protect his daughter from the
rapacious politician. Who could have prevented such an atrocity, although the
incident showed a certain lack of fear for the law?
There are two
other arguments against rushing to alter India’s criminal law. The trend all
over the world is one of moving away from the capital sentence. We cannot swim
against the tide. If we are not being discussed in adverse terms by the rest of
the world -- even after the clandestine manner in which we executed Ajmal Kasab
-- it is because of the commendable moderation and restraint that the judiciary
led by an enlightened apex court has exercised in awarding the death sentence.
Finally, those
who are making the strident demand for the death sentence to rapists do not
understand the fundamentals of our criminal jurisprudence. Such a penalty
pushes up the standard of proof required to convict the accused. What will be
demanded by trial judges and those above is conclusive proof that suggests not
even an iota of doubt about the culpability of the person charged. When this is
the case there is the peril that many more rapists could go scot free if we are
to opt for capital punishment for rapists. This is the real nightmare to many
of us trying to lock up all offenders guilty of what, apart from murders, is
the most heinous of crimes known to humanity.
An accompanying
feature of the scene is the depressing number of prosecution failures in
courts. More than anything else, this is what has drawn the most critical
comment from many dispassionate observers as well as victim families.
Ultimately cold logic reduces the debate to one of how to successfully
establish guilt under the existing sentencing guidelines rather than seeking to
enhance current penalties. The police record here is appalling and shameful.
Shoddy
investigation
Why do rape
cases fail so often to persuade the trial judge? Shoddy investigation is no
doubt a major factor. This is not peculiar to rapes alone. All over the country
criminal investigation is in a shambles, with utter venality triumphing over
the need for justice. The ease with which witnesses (including the victim) are
either intimidated or bought over is one major reason for acquittals. This
situation is especially true in the rural areas, where the registration of a
rape case is ridden with uncertainty.
This brings up
the point of a qualitative difference between rapes reported from villages and
urban centres. The rural aggressor -- usually from the upper castes -- has
invariably huge resources at his disposal to compromise the investigating
officer. The situation is slightly better in urban centres where intense media
attention makes suppression of an occurrence difficult. This is why
strengthening the rural police is an immediate imperative. The State
Intelligence should be accountable for bringing to light deliberate police suppression
of rapes or sabotage of rape investigation.
Within the
police there is a certain reluctance to handle cases of rape because the
process demands hard work and perseverance. This should be viewed against the
backdrop of the hard fact that there are no great incentives to field officers
in pursuing a career in investigation. The one partial solution is to entrust
all rape cases to a central unit at the State Police Headquarters that is
manned by officers of proven integrity and professionalism. Such an apparatus
will be supervised by a senior officer who reports directly to the DGP. This is
a near equivalent of the CID, except that, unlike the latter, the new cell will
pursue only crimes against women without any major distraction. I know that a
similar experiment is in place in a few States in some form or the other. There
is now a case for having it in all States. This will not ensure a 100 per cent
conviction rate. But it would certainly bring about a better quality of
investigation and prosecution, with its accompanying impact on court
proceedings.
Overburdened
courts
All this will
not help without a corresponding desire on the part of the lower judiciary to
change its ways of conducting proceedings which breed sloth and corruption.
Courts are no doubt overburdened. But then they alone are not the sufferers
from this evil of a pointless routine, a legacy of the colonial rule. An
enterprising and dedicated judge always organises his court in such a manner
that he does not play into the hands of a dishonest prosecutor or a
cantankerous defence lawyer, both of whom are the principal villains in an
archaic system. It is here that Fast Track Courts assume certain value. We
cannot have such courts for every form of crime. The need is to prioritise some
offences like rape which cry for justice in an unequal society. The few such
courts already in vogue have produced remarkable results. I know of a Rajasthan
case of rape of a foreigner a few years ago which concluded within weeks. This
practice of having exclusive courts for rapes and similar heinous attacks on
women is worthy of expansion in all States. A lot will depend ultimately on the
message that the apex court sends down the line. No sensible government will
ever spurn spending more resources on combating a social evil that is nearly
going out of control. The Delhi incident should act as a catalyst for more
action and fewer words.
The writer is a
former Director of the CBI
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