P V Indiresan

Collapse of the rule of law

P.V.INDIRESAN | Updated on December 28, 2012

What the country needs urgently is a witness protection programme in the case of heinous crimes. — PTI

The ongoing debate on the punishment to be meted out to rapists should not overlook a basic point – justice delayed is justice denied.

These are the days of Peace and Goodwill to All, of Christmas, but Delhi is in a mess, a terrible mess. A young woman has been assaulted and gang raped in a bus. She is in a bad condition and has been taken to Singapore. She may or may not survive. As people have asked, even if she survives, what kind of a crippled – both physically and psychologically – life will she lead? The youth of Delhi are up in arms. The government has used its prerogative of force majeure and dispelled the crowds with tear gas, water-cannon and lathi charge.

The Chief Minister of Delhi appeared on TV and shed tears. She is not an actress; I believe her grief was genuine. The Delhi Commissioner of Police has promised all possible action, and has transferred the official who did not register the case and suspended two Assistant Commissioners of police. He knows, and everybody knows, that transfers and suspensions are not punishments.

NO CREDIBILITY

The problem is the police do not inspire confidence. Recently, The Hindu reported the case of a poor school girl of Tiruvallur, who was sexually abused by her Physics teacher.

The headmaster reportedly said that such things were common in the school, and since she was getting a free education she should not be concerned about the incident. But the girl joined another school and filed a private complaint against Judicial Magistrate-I of Tiruvallur, who sentenced the accused to two years’ rigorous imprisonment and a fine of Rs 10,000. It was after this complaint that the girl filed a case with the local police station, which, however, closed the complaint without investigating it. The school management has not been punished.

In the Delhi case, a newspaper has reported that the owner of the bus in which the girl was raped possesses a fleet of 49 buses and has been running them illegally by paying hafta to the police. In the protests, a police constable died. The police claim he died of injuries but eyewitnesses claim that he merely had a heart attack.

The head of the government hospital which did the post mortem said that there were no external or internal injuries. Whom do we believe? The Home Minister has complained that he cannot be expected to face every crowd. He should have asked of himself what would Jawaharlal Nehru have done. Would he not have jumped into the crowd and admonished them? If the top person is hurt, he has to accept that as the price he has to pay for the force majeure he is prepared to use.

NO FEAR OF LAW

The BJP has called for capital punishment for rape. R. K. Raghavan, former head of the CBI, has raised the usual objections against capital punishment. One, capital punishment has been abolished in most developed countries; we should not take a step backward.

Two, rapists are psychological cases; they will not be deterred by the fear of capital punishment. Three, the Rule of Law demands very severe proof of culpability and that may not be possible. These are the views of the current social activists too, who are more concerned about the perpetrator than about the victim. All of us should have three ingrained fears – Fear of God, Fear of Society and the Fear of law. In these days of great advances in science, many people are questioning the concept of God; for them the religion has no solution. Society has become too lax.

The concern is more about rehabilitating the culprit than protecting the victim. The idea is to let a hundred rapists to go free rather than convict one innocent person.

That leaves the Fear of Law, which, as President Clinton has said, depends on its certainty and not on its severity. In India, punishment is most uncertain; delays are endemic. Interminable delays offer criminals opportunity to intimidate witnesses. Often, the perpetrators have powerful friends, and have no compunction even in killing hostile and determined witnesses.

So, witnesses get scared or succumb to temptations. Indian courts are full of cases where witnesses turn hostile.

My brother-in-law, when was in the CBI, told me of a case of student’s murder in the Banaras Hindu University. With great difficulty he persuaded the only witness (and his father too) to testify, promising police protection.

That did not work. That witness too was murdered and the case failed. The multiple-murder culprit must be even now walking free and boasting of his unconcern about the police and the Rule of Law.

What the country needs most, and does not have, is a secure Witness Protection Programme. Those who have not seen the film Have You Heard of the Morgans? should do so. They will realise that witness protection programmes are very expensive but criminality is even more expensive.

The Rule of Law is against summary punishment. Yet, why not combine it with soft punishment? In place of capital punishment or even castration, the culprit may lose some privileges only.

Then, even if a few innocent persons get punished, the cost is little; in any case, that is far better than the prevailing gangsterism. For instance, criminal politicians may be merely removed from the legislatures summarily if found guilty. He may also be made to wear a T-shirt in public with the slogan: Beware! I am a rapist!

There is no perfect system; we can never ensure that no non-guilty person will ever be punished. The choice is: How many innocent persons should suffer from criminal attacks and how many innocent persons will be wrongly convicted?

We have had a history of molestation of women, since the times of the Ramayana and the Mahabharata. Immediate punishment, however mild, is likely to make modern-day Ravanas and Duryodhanas fear the Law.

(The author is a former Director, IIT, Madras. Response to indiresan@gmail.com and blfeedback@thehindu.co.in)

This is 345th in the Vision 2020 series. The previous article appeared on December 15.

Published on December 28, 2012

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