Retributive justice has an instant appeal, but is not necessarily the best solution.
The outrage over the barbarous crime of gang rape of a 23-year-old-girl and her death thereafter has revived the debate on the punishment regime obtaining in this country.
Eye-for-an-eye strikes a chord, especially with a lynch mob out to avenge injustice vicariously. Small wonder, extreme punishments such as castration and death are doing the rounds almost as a knee-jerk reaction. Indeed, retributive justice holds an instant appeal to the masses. There are countries that mete out retributive justice with considerable success.
The panchayati instant justice regime of compelling a rapist to marry the victim and maintain her lifelong is practised even today in some obscure corners of Africa, though one wonders whether this is retributive enough. On the contrary, castration and death sentence, though repulsive to human rights activists, do have deterrent effects, besides meeting the ends of justice. When chopping off fingers can rein in compulsive kleptomaniacs, there is no reason why the threat of going to the gallows or being rendered impotent in perpetuity should not deter the wannabe rapists.
This, however, does not mean all crimes must be visited with the same one-size-fits-all retributive approach. Soft-touch justice, the hall-mark of a reformative system, is appropriate for crimes that are not heinous and committed by those who are not history-sheeters or hardened criminals. This, indeed, is the rationale for persisting with the juvenile justice system whose accent is on reforming impressionable minds and bringing them to the path of rectitude rather than subjecting them to the cruelty of eye-for-an-eye, though the jury is still out on who exactly is a juvenile and what crimes committed by him should make the grade.
There is merit in the clamour for lowering the age of a juvenile from 18 to 16 when the crime is heinous, especially given the fact that a sixteen-year-old committing rape is not a thumb-sucking toddler.
Restorative justice craves for adoption insofar as financial or white-collar crimes are concerned. Sadly, our law enforcing agencies are out of depth in tackling financial crimes in the first place, so much so that the question of meting out appropriate punishment has not arisen in a vast number of cases.
Rajat Gupta, the NRI consultant who till recently was the poster-boy of the Indian Diaspora abroad as well as of wannabe emigrants, was not only made to disgorge the dollars he and his friend made through insider-trading but also asked to serve a prison term. A combination of two or more regimes is desirable.
In a country where the judicial process is painfully slow, it may be idle to talk of reforming the punishment regime, because punishment can be awarded only when the accused has been convicted, and the accused can be convicted only when trial takes place expeditiously.
In a way, therefore, the ongoing debate in India on appropriateness of punishments amounts to jumping the gun. Fast-track courts must become the norm rather than an exception to merely douse the fire ignited by the media attention. The number of judges vis-à-vis population needs to register a quantum jump which alone can facilitate trial on a day-to-day basis, the principle underpinning fast track courts.
Judges and magistrates should not be allowed to fade away in blissful if not contented retirement. As it is, many of the cases have to be heard de novo by the successor due to a combination of factors, including the lethargy of judges and pressure of work. This is a kind of duplication and luxury the nation can ill-afford. The nation cannot afford to let a judge hang his gown, as it were, unless he has disposed of all the pending cases.
There are situations where precedents are silent and parallels are absent but there are also cases where despite the availability of precedents, judges choose to chart their own path. The sooner the Supreme Court issues guidelines on honouring of judicial precedents, the better. Similar cases should be bunched and heard together.
The registry should be equipped for this demanding job. Frivolous appeals must be discouraged by slapping a heavy penalty in the form of deterrent costs. Officers of government departments who appeal at the drop of a hat on the back of audit phobia after making high-pitched assessments in financial matters must be made to bear the cross, especially if they are guilty of ignoring legal precedents. Our judiciary is clogged mostly with appeals from departments.
Prevention is better than cure is trite, but in the Indian context it bears repetition because our policing is abysmally poor. In the US, motorists are mortally afraid of cops but in India even drunken drivers get away by palming a crisp note to the policeman on duty. We need a police that is efficient, hardworking, well-equipped and, above all, incorruptible. A tall order but judicial reforms hinge heavily on police reforms.
(The author is a New Delhi-based chartered accountant)