WHY DEATH PENALTY IS ONLY A BAND-AID

24 Apr WHY DEATH PENALTY IS ONLY A BAND-AID

Finally, India has shown outrage. There’s a sense of shame about the frequency & heinousness of minors getting raped.

Outrage is usually good. It brings change. And people then feel they have made a difference by tweeting. So people who earn their keep by cheating others out of 2% start to feel like they’re bricks in the wall. Folks who write jingles for radio spots and sell French fries showcase outrage to look socially relevant. It’s a win-win.

While different people wanted different stuff as corrective, from the PM’s resignation to public castration, the consensus for death penalty in cases of rape of minors was deafening. From the West Delhi property dealer to the restaurateur who serves vegetable oil and calls it mozzarella, people across strata were clear about one thing. Only death penalty can serve as deterrent.

Here it is now. Your formula for ending rape. The government’s acted in lightning time, passed an ordinance amending the Evidence Act, the IPC, the CRPC, and The POSCO Act. Rape of a minor child is now punishable by death. Congratulations. Just some years back, when the byword was ‘Nirbhaya’, instead of ‘Kathua’ or ‘Unnao’, a similar outcry demanded that juvenile rapists should be tried as adults. Then as now, the government complied with a similarly knee-jerk amendment. I wonder if that has brought about any reduction in the ranks of juvenile rapists.

This to my mind, is the problem with personality balancing. We are aware of the utter helplessness of our existence, and deploy social media to balance that. The mercenary reality of the commission agent or the loan shark is masked by the online persona of Activism, Meditation, Daily Quotations. People struggling to lose 5 kilos are telling us how the world can change. It’s a huge overreaction. To my mind, people should accept that the world has changed, and today, there is not that a lot of us can do about most things. There is pragmatic Gavaskarism in the knowledge that if we get our runs and not worry about the rest of the team, that helps the team itself in winning. Basically, do your thing, don’t run around telling everyone what is wrong and who is to blame for it, because then you’re just part of the mob. And the French Revolution has a mirror image today. It is the mob outside that is asking everyone to eat cake. And it is not the wisdom of the legal or social or even criminal expert, but childish prattle, albeit loud and well meant, which has caused an amendment in the law. The government has typically washed its hands before and after. It has delivered exactly what the online mob bayed for. Nothing more, nothing less.

So what have we achieved? Anyone raping a minor can now be charged for the said offence, and the court can now award death sentence if they reach a verdict of guilty. I’m not even pointing out for now that this can now apply to any girl who yells ‘Rape’, and is to be administered by the same police you would rather bribe than have to deal with. I’m staying with your discourse. Great, death penalty can be awarded.

But how often is death penalty awarded even in cases of murder? The same legal system that will administer the amended law is very heavily anti death penalty. The judicial consensus itself is about restricting death penalty to “rarest of rare cases”. Thus, when even an offence of murder leads only to life imprisonment, is it logical to believe any court will award death sentence in cases of rape? I’m not backing the motion.

Next, and this is somewhat unpleasant, but merits to be kept in mind. We’re looking at amending the law on the presumption that the stronger punishment will deter the perpetrator. I’ve already pointed out that when death penalty has failed to act as deterrent even in murder cases, this presumption is not an intelligent one. It is certainly not based on any research I am aware of. Think now, of the poor child, fighting for her life at the hands of a rapist. If he knows he’s due for a hanging already, what are the chances he will let the girl live? Ah, now you begin to see…

The whole mistake in this movement and the government’s consequent action is in seeing things from the perspective of the mob. If we’re looking to attack Rape, we must look at the issue from the point of view of the victim. The ugly fact here, which has gotten swept under the carpet, is that this whole absence of deterrent is based on a fairly honest assessment of our investigation and trial system. The system itself is virtually incapable of leading to conviction in most cases, so there is no fear of the law. If there is no fear of the law, how can there be fear of the death penalty, which is by itself an extremity of that law?

Any action that looks to contain and reduce Rape must be an act that empowers and supports the victim. That is where the action should have taken place, not through this stupidly demanded and popular band-aid.

1. UPDATE OUR PATHETIC FORENSICS – Across genres of crime, it is common knowledge (by this, I mean common knowledge among people who understand the law and the criminal investigative system) that our techniques of forensic investigation are quasi Jurassic. Remember the mess with the Arushi Talwar case? Compare this with what forensic techniques are available to police in developed countries, and 80% of the leakage by way of rapists getting acquitted will have been stopped. We need specialist forensic teams in each state to deploy in cases of heinous crime, to work parallel to the local police and not under its instruction, and to come up with time-bound fact-sheets. Such teams should have control of the crime zone as well as the accused. This way, there is a logical basis for making an arrest or holding someone in remand, and the task is investigation, not appeasement or ticking boxes. Plus, Science will tell you who did it, and it’s not easy to argue with Science.
2. CENTRALISED INVESTIGATION – Given how susceptible and clumsy local police tends to be in such cases, especially when the accused is powerful or from a certain caste or community, etc., it makes sense to even line up police action in the same way as police action is deployed in priority sectors. Through special task forces. If each state has a few such units deployed only in cases of heinous crime, which provides for safety for the victim & her family from the local “thaana” force. If the incident has taken place at Unnao and the investigating force is from Lucknow, it becomes difficult for the perpetrator to secure the police’s good offices. Because such teams would deal with serious crime, they could be equipped with forensic units, trauma counselors, women officers, etc. To my mind, keeping the victim’s health, spirit, & morale up for the first few weeks is bigger deterrent to Rape than death penalty, because she will then make a case for herself.
3. There is another reason why it makes sense to move the scene of investigation after the forensics are concluded. In a large percentage of cases, the victim is a relative of the rapist, and this puts the family in a spot. If the format of the evidence gathering process itself presupposes that all witnesses are to move to another location, it will be easier for the investigation team to get through the tricky task of eliciting evidence from people about a family member.
4. TIME-BOUND TRIAL – I have seen trials go on for years because the police are yet to file charges. Given that we’re now looking to professionalize that side of things, I believe that charges under the series of 300’s in IPC should be heard by fast-track courts, with judgment to be rendered within 12 months. This will put the fear of God in people who otherwise believe they can let the trial crawl through decades until the victim loses faith and throws in the towel.
5. ADVERTISE FOR PROSECUTING LAWYERS – You look around at the bevy of senior advocates today, and lots of them were basically rewarded for being part of the system during this high profile trial or the other. Good lawyers, contrary to popular perception, can work for the prosecution also. If the court system asks for volunteers, you’ll find that the cream of legal talent will be happy to work for a worthy cause. Such lawyers are difficult to defeat, and even more difficult to fix.

My object in discussing the issue was to point out that the lacuna in our system is not amenable to correction with one piece of legislation. The law is fine. It is the system that administers it, that needs a complete overhaul, and this well-meant but unintelligent online and offline outrage has helped the government gloss over the real issue and administer this popular but inane amendment.

It’s a band aid. And you have not only helped administer it, but have helped the government walk free saying they’ve addressed the issue, when they’ve done nothing.