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.

Wednesday, 9 January 2013

The silent bystander – why did no one help?

Among the many question being asked after the horrific and fatal rape and attack on a young woman and her survivor friend is this – why did no one help?

Many people have commented on the apparent lack of basic humanity in urban India. The badly injured and barely clothed victims were not dumped on some remote isolated spot. They were left on a flyover. Many people passed by that road and yet, despite pleas for help from the man who survived, no one stopped.  

What has become of us? is the question many have asked as in this blog post.

Rupa Subramanya, co-author of Indianomics – making sense of modern India, provides an interesting take on the question, one that most of us will intuitively recognise as, at least in part, true.

Essentially the argument goes something like this. To step in and help someone in distress – a Good Samaritan act – is an act of altruism. Benefits in kind accrue to the Good Samaritan; the gratitude of the person helped, the innate sense of well-being that comes with having done a good deed. But that has to be balanced against the costs of intervening. Time, expense may be and the uncertainty of when the Good Samaritan act can be regarded as finished, allowing the helper to move on with his own life.

In most cases the costs are minimal and most of us would likely help someone in trouble. In the specific case of the New Delhi incident there was the added complication of the criminal nature of the attack that led directly to the need for help. Whoever stepped in to help would have had to contend with the police. And the police in India are known not for their humanity, kindness and intelligence. On the contrary, they have a justified reputation for venality. (In the movie No one killed Jessica, the investigating poilce officer admits receiving a bribe of 1.5 lakhs just for not beating the suspect during interrogation.)   

So if you buy this argument, we don’t need to beat ourselves up over our apparent insensitivity to a fellow human being in distress. People who do not intervene to help a victim of crime may be acting under the compulsion that to do anything else would be irrational.

Despite that we need a huge change of attitude among ordinary people so that more of them act out their innate altruism. But more importantly we need an even bigger change in the mindset of petty officialdom and especially the police – a change that that would lower or hopefully even eliminate the costs associated with being a good Samaritan. 

Saturday, 5 January 2013

Unintended consequences

I have a serious issue with how public anger at recent events in India is being channelled.

Take for instance the demands for a quick and speedy trial of the 5 men accused of the rape and murder of the 23 year old student whose tragic case has become the focal point for understandable anger and widespread protests at women’s lack of security and of freedom from violence and fear.  

Calls for a quick trial are understandable but the cause of natural justice is far more important. Unless we are prepared to live under a system of rough justice at the hands of a baying mob, we need to tarry a bit and do it right. If justice for ‘Amanat’ is what we wish to see then we have to ensure the system is robust enough to deliver it. A quick trial and a speedy execution may satisfy the immediate demand that ‘something must be done’, but it will not solve the wider issue of the decrepit state of the criminal justice system in India. Indeed it would be in the interest of the politicians in charge to appear to give in to the public demand for quick justice in the hope that the protests die down and they can get back to ‘business as usual’.

The lawyers association in New Delhi has said that none of their members will represent the 5 accused. Their spokesman told NDTV that this was their way of showing support for the public anger at what happened.

But this is unprofessional and unacceptable behaviour. Justice must not only be done but must also be seen to be done.  How do we know that the 5 men currently in custody are indeed the men who carried out the rape and assault? How can we be sure that the real culprits have not got away? The police have lots of forensic evidence we are told but the evidence chain has to be established clearly before an open court and must stand up to scrutiny and challenge by the defence team. We are told that the accused men have confessed. That maybe so, but convicting on the basis of uncorroborated confession is dangerous. How do we know that in response to public anger, the police picked up 5 men and coerced or beat them into a confession?  A proper trial may take time but it will be better than a trial that leaves doubt as to the safety of a conviction.

The public are angry at the inordinate delays in rape and other criminal cases, especially where politically powerful men are in the dock. They may well look upon a lawyer acting for the accused as contributing to these delays. But consider this: the extraordinary delays that so bedevil criminal cases in India’s courts have nothing to do with the defence team doing a proper job, and everything to do with corruption, inadequate training, lack of resources and poor case management by judges.  

In any case the potential for delay must not be an excuse to compromise the quality of justice. If speed is all important then why not dispense with a trial altogether and take the police at their word. They say they’ve got the men who did it, they have the evidence of guilt, and what’s more they have a confession. Hang them now and be done with it!

But that is precisely a system that corrupt and powerful people can exploit; they can commit whatever crime they like – and many powerful people have been accused of rape, let’s not forget -  and then fix the system so that some poor hapless guy takes the rap for it. The perfect crime is not when the criminal avoids detection but when someone else is convicted.

And that is precisely why we need a robust system that allows the defence team to examine and probe the evidence so that there is a much better chance of not convicting in error.

We talk of the accused ‘being on trial’ but in reality it is the prosecution case that is being tried. Does it stand up to scrutiny? Does the evidence consistently and beyond reasonable doubt persuade us that the person accused is indeed guilty?   

To do anything less would be to place too heavy a reliance on the integrity and intelligence of the police and the criminal justice system. 

If we could afford  to do that then we might not be where we are and Amanat might have remained an anonymous student safely and securely using New Delhi’s buses however late the hour.