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--------------- Print Magazine --------------
  May 2016
  April 2016
Legal Article

Enacting tough laws is easy,

implementing them much tougher

Rape is not only a crime against women, but a blatant assault on human dignity. It shatters the psychology of the victim and causes emotional breakdown and trauma. Unfortunately, rape victims are looked down upon as tainted women, which addes insult to injury. The recent incident of the gang rape in Delhi and the brutality accompanying it has shaken the conscience of people all over the country and abroad.

There are demands for stiffer punishment. The penal laws of the country have been amended from time to time in the light of recommendations of the Law Commission of India. The maximum punishment for rape has been upgraded to life sentence in 1983 with the hope that it will deter and prevent rape. The 172nd Report of the Law Commission has reviewed rape laws in the light of increasing incidents of rape, including custodial rape and sexual abuse of youngsters.

After considering it and the report of a high-powered committee consisting of, among others, representatives from the Ministry of Women and Child Development and National Commission for Women, the Union Home Minister has recently introduced in the Lok Sabha the Criminal Law Amendment Bill, 2012, to amend the Indian Penal Code, the Criminal Procedure Code and the Evidence Act, which is pending.

Castration no answer

The Justice JS Verma Committee has started receiving suggestions from the public. The ruling party is considering a maximum imprisonment for 30 years and chemical castration for rape. Demand for a more severe punishment than life sentence is understandable, but it should not be shocking. Civilised society does not accept lex talionis , the law of retaliation, that is, an eye for an eye, a tooth for a tooth. According to the Supreme Court, "a barbaric crime does not have to be visited with a barbaric penalty". Castration, without the consent of the person convicted of rape, will be vulnerable to challenge, unless in the event of providing for death penalty, the choice is left to the convict to opt for castration.

Non-bailable offences

Rape as well as assault on a woman with intent to outrage her modesty are both cognisable offences. While rape is a non-bailable offence throughout the country, assault on a woman is a bailable offence, except in Andhra Pradesh. The Chairman of the West Bengal Human Rights Commission has rightly suggested making it a non-bailable offence.

Urgent overall reforms

One question that stares us in the face is, whether a more stringent law alone will prevent recurrence of rape, molestation and eve-teasing? I am afraid that is not so. Effective implementation of the law is necessary, which is not possible without good governance and promotion of universal respect for dignity of women. A change of mindset is needed not only on the part of potential criminals, but also the police, the politicians in power, the bureaucrats and all sections of society. Police reforms are overdue. Neither the National Police Commission's recommendations made in 1979 nor the directions of the Supreme Court given in Prakash Singh's case in 2006 have been acted upon seriously by the governments. So long as persons with criminal antecedents continue to get elected and become ministers, MPs and MLAs, meaningful reforms will not be possible.

The public anger and indignation witnessed recently at India Gate and Jantar Mantar in Delhi and in other places across the country need to be directed against individual culprits holding public offices who control and manipulate the police to shield criminals. Therefore, in addition to police reforms, we need urgent and radical electoral reforms, political reforms, administrative and judicial reforms.

Check delays in entire system

Delay is the epidemic that has to be checked at its roots. There is a dire need to re-engineer procedures through science and technology, effective court management ideas; modernisation of police stations and criminal courts; constituting a criminal justice board, sentencing discounts and abatement of stale cases.

The real solution to the problem is in completely overhauling the criminal justice system. Our criminal justice system relies on bullock cart technologies in this supersonic age. It is, therefore, not hard to see why this has resulted in a complete mismatch. Police stations should be provided with standardised technology for automatic recording of FIRs. All statements of the accused and witnesses must be video recorded, including recording of confessions of the accused using tamper-proof technology; all telephone lines of a police station must simultaneously relay caller information to patrol vehicles in areas proximal to the caller.

Court management

There should be proper court management by having separate courts to hear only bail matters and summons. There must be a centralised registry, only ripe cases should be listed in sessions courts to ensure daily hearings. There should be provisions for e-filing of police reports and documents in all criminal courts in the country. This will reduce the delay in court procedures by half. A higher rate of conviction and initiatives such as publishing the names of sexual offenders and dedicated helplines for women will create faith in the criminal justice system and provide much needed support network for victims.

Improve forensics

Forensic science is the tool of the future and probably the only weapon in the arsenal of the criminal justice system that can secure justice and provide a watertight case against wrongdoers.

The authenticity and availability of evidence are the critical components of a criminal trial. Many a times, police fail to pick up important prints/marks from the crime scene. Lawyers and judges are lost in the maze of circumstances and false witnesses. But the availability of scientific evidence will determine the success and speed up criminal justice. A mobile forensic van is essential in every police station. It is often said that a single piece of scientific evidence is equivalent to 100 witnesses in court.

Get courts into IT age

Information technology is the panacea of all ills. If Bangalore is the new Silicon Valley of the world and India is the BPO hub, then why is the Indian judicial system working without technology? If courts have been saddled with bullock cart technologies, it is no wonder they deliver justice at the same speed. Courts need to be provided with technology and world-class amenities so as to facilitate speedy justice. A BPO can transcribe thousands of pages of technical data and transmit them across the globe in less than 12 hours, but sadly, Indian courts still rely on the ability of a judge to record evidence and judgments in long hand. The output is disheartening as an Indian judge records an average of roughly 25 pages of evidence per day, whereas in the US courts, the corresponding figure is 300 as courts there are equipped with transcription machines.

The criminal justice system seems to be on life support in a critical state, that too at a time when it needs to be in the pink of its health to combat the menace and ever-expanding horizons of crime. The continuous onslaught of mounting cases on one hand and a low conviction rate on the other is having serious ramifications on the confidence of the citizens in the law and just adding impetus to criminal activity, making it a low-risk, high-return proposition.

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