I agree with only one part of the controversy whipped up by sections of the civil society, including the media, on the Criminal Law (Amendment) Ordinance, 2013, promulgated on February 3, making certain provisions of the Indian Penal Code, the Code of Criminal Procedure and the Evidence Act more stringent in dealing with rape and related offences. And that is regarding the necessity for issuing the Ordinance at all when the Budget session of Parliament was in any case only three weeks away.

There was nothing so imperative or immediate by way of effecting any conspicuous improvement on the anti-rape front that the Ordinance could be expected to achieve (other than as a psychological sop) which could not have been achieved with equal results by waiting for three more weeks. The period could have been utilised by the Government to have consultations with civil society groups on the entire range of recommendations of the Justice J.S.Verma Committee, and enabled it to bring before Parliament a properly conceived legislation.

Instead, it has given the impression of rushing headlong into a half-baked course of action. For its part, the Home Ministry has added to the Government’s discomfiture by casting it in the role of a spoiler out to scupper some of the recommendations of the Committee. Luckily, the fielding of Finance Minister P. Chidambaram to do the rescue act and the lucidity with which he placed the sequence of events in the correct perspective, have to a large extent restored the credibility of the Government.

WHOLE UNIVERSE

A comment on the functioning of such Committees. The problem of entrusting such sensitive issues to jurists is two-fold: They usually are persons who know too much and are eager to lay bare every bit of their erudition without much thought to the burdensome process of examination and implementation that it entails.

For instance, the Verma Committee’s report consists of 630 pages — a length which, even if it is a suspense-filled novel which one is unable to put down, may perhaps take more than a couple of weeks to read. It covers a whole universe all the way from the ingredients of leadership to be exercised by police officers to putting an end to criminalisation of politics, to carrying out police, administrative and electoral reforms.

Secondly, jurists are, for no fault of their own, unfamiliar with the intricacies of administration and ground level realities. They tend to make recommendations, not unmixed with homilies, which are not only idealistic but sometimes unsuited to the existing circumstances and, therefore, unimplementable and unenforceable.

It would, therefore, be better for such Committees to have as members those who have handled micro- and macro- issues, challenges and problems touching the day-to-day lives of the people and can thus bring to bear a common sense approach to the adoption of remedial measures.

REALISTIC AND PRACTICAL

The Government is entirely right in not incorporating in the Ordinance the proposal of the Verma Committee to make marital rape, in its omnibus sense, a criminal offence, irrespective of whether the couple is living together or separately. It may well be that some Western countries have laws to this effect, but in the Indian social and cultural milieu, such a penal provision will definitely weaken the institution of marriage. It can also lend itself to extensive misuse.

Similarly, the Government has done well in reserving for a more detailed and dispassionate examination the Committee’s recommendation for acting straightaway, without previous sanction from designated superior authorities, on complaints of molestation, rape and other crimes against women preferred against the police, security, armed and para-military forces.

Because of the very nature of their duties, vested interests, criminals, and anti-social and anti-national elements will be only too happy to entangle them in frivolous and vexatious cases in order to paralyse their functioning.

Strangely, some sections of opinion have faulted the Government for making rape followed by death or vegetative state punishable with death, even though the Verma Committee had only recommended long term, and in grave cases, life-long, imprisonment. There can certainly be honest differences of opinion on capital punishment, but that should be no reason to flog the Government for opting for it in its best judgment.

The Ordinance is, on the whole, realistic and practical. Any further improvement that it needs can always be brought up for consideration when it comes to Parliament for approval.

(This article was published on February 5, 2013)
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