Saturday, 19 January 2013

The wrong question

Public anger following the December 2012 rape, assault and murder of a young New Delhi woman focused attention on the scale and horror of violence against women in India. The incident seemed to have awakened a new struggle for the right of girls and women to be free from the fear of sexual harassment and violence. The anger, while understandable and perhaps even desirable, must not however lead to mistaken policies that might do harm without doing anything for the cause of women’s safety.

The Government set up a 3 member committee chaired by retired Supreme Court Chief Justice JS Verma to consider ‘amendments to the criminal law so as to provide for quicker trial and enhanced punishment for criminals, accused of committing sexual assault of extreme nature against women’.

That is a pretty narrow remit, and even if a) the committe comes up with sensible and practicable proposals to change the law; b) the Goverment agrees and Parliament enacts the necessary legislation, and c) the new law is implemented, it is unlikely that women will feel safer knowing that should they be attacked there will be swift punishment for their attacker.

I think this venture is destined to fail whatever suggestions Justice Verma comes up with. 

The Committee’s seeks to suggest ‘changes to the criminal law’ and its target is 'crimes of extreme nature against women’.  

The trouble is not with the law as such but with how the police deal with and investigate criminal complaints, including allegations of rape and sexual assault. There’s no point changing the penalty for a crime if the victim can be dissuaded from making a complaint or withdrawing an allegation. Criminals are not deterred by the severity of the sentence that awaits them should they be convicted. If at all they are deterred by the justice system it is the likelihood of being caught and brought to trial (1).

It is hard to see how the police response to crimes against women can change without a general change in the attitude of the police towards citizens. There is still a widespread and justified distrust of the police. They are generally poorly educated, badly trained, inadequately resourced, hardly if at all accountable to the citizenry, in hock to politicians who in turn regard them as mere extensions of the party in government, and widely regarded (and with justification) as corrupt. And worse they seem to have a hangover from colonial days of being in some way not the guardians of citizens’ rights and liberties, but their masters (2).

The judiciary – with respect to Justice Verma and his Committee - is little better. A judiciary that  presides over a criminal justice system that has tolerated - and indeed allowed - delays of the kind that makes India unique,  measured as it is in decades rather than years, deserves no respect for its professionals standards and ethics.  The legal profession is equally complicit in what Bernard Shaw described as a ‘conspiracy against the laity’.  The system appears to exist not to dispense justice to aggrieved citizens but to exploit people’s ignorance while pretending to serve them.

Justice Verma and his committee would be better employed looking at the following questions.

A) How can the police service be reformed to make it responsive to the needs of citizens, independent of political interference, and accountable to the public?  

B) How can the justice system and the courts (at all levels and both criminal and civil)  be reformed to make it efficient, fair, responsive and timely?

C) Is it right for us to continue with an adversarial system of justice inherited from colonial times, with 2 sets of lawyers slugging it out in front of a judge, sitting without a jury? Is there a case for moving to an inquisitorial system with an independent and well resourced Magistrate Service that receives, records and registers complaints from the public and where an investigating magistrate directs the police investigation into (at least to start with, major) crimes? (3)   

If India aspires to make this an Indian Century then we can hardly carry on with the present decrepit system collapsing under its own inefficiencies and corrupt practices. A fast track court for the trial of the 5 accused in the Delhi rape and murder case might well assuage public anger but what about the other 24,206 rapes in 2011 alone (page 83, Crime in India 2011, NCRB)? Or the other 256,329 violent crimes (page 50) reported in the same year?  

Here’s my prediction. The Justice Verma Committee will achieve little of substance. Let's look back at this in 5 years time and if I am proved wrong I’ll happily donate INR 20,000  to charity.

1. There’s the additional factor of the balance between what the criminal has to lose by being caught and punished versus what he stands to gain from the crime should he escape detection. But that’s a subject for another essay.

2. A check of the complaints register at any police station usually reveals hundreds of unregistered cases. Nobody is punished for such lapses. Law and order gets priority over crime and corruption thrives. Graft is so endemic to the force and the opportunities for retail corruption so many, that bribes are paid for recruitment. Three months ago, the Andhra Pradesh CID arrested five police sub inspectors for using impersonators to clear their recruitment test. In 2008, nearly 40 sub-inspectors morphed photographs of post-graduate students onto their hall tickets and paid each student Rs.4 lakh to write their test.’

Read more at:

3. ‘The main feature of the inquisitorial system in criminal justice in France and other countries functioning along the same lines is the function of the examining or investigating judge (juge d'instruction). The examining judge conducts investigations into serious crimes or complex enquiries. As members of the judiciary, s/he is independent and outside the province of the executive branch, and therefore separate from the Office of Public Prosecutions which is supervised by the Minister of Justice.

1 comment:

  1. You are absolutely right that the Justice Verma commission's mandate is flawed. But it is flawed because of the history of the commission's birth. The commission was conceived in haste as a tactic to assuage the sudden 'Arab Spring like' reaction to a well publicized gang rape. Your bet is on the ball. Some poor charity is destined to be devoid of INR 20,000.