If rules subvert justice, they need to be set aside

If rules subvert justice, they need to be set aside

By M.D. Nalapat | 26 January, 2013
The accused in the 16 December gang rape in New Delhi.
Rules and procedures, as indeed the force and majesty of the law, are intended to ensure Justice, with a capital “J”.

One of the many lessons taught to the nation by Mahatma Gandhi was that outcomes do not matter, procedures do. To paraphrase his words on means and ends, "means are after all, everything". Repeat, everything. Even if the ends are not served by means seen by votaries of the Mahatma as being the proper ones to be used, it does not matter. The use of specific means is much more important than any outcome or lack thereof. India has been blessed with the British colonial administrative and legal system, both of which continue seven decades after flagposts in government compounds replaced the Union Jack with the Tricolour. So long as the British were in charge, the system chugged along at a reasonable clip, because of the spirit of improvisation of the colonial authority. They were happy to keep to the rules, so long as their broader purposes were served by doing so. However, in case robotic adherence to procedure resulted in a weakening of the colonial authority, rules were either ignored or changed, much as they are in India once a sufficient bribe has been paid.

The 16 December 2012 rape and murder of a 23-year-old woman in New Delhi failed to shake the Delhi Police from their smug lethargy, an ennui that was favourably remarked on by the Union Home Secretary himself, who regarded the national capital being one of the least safe locations in the country for non-VVIPs as proving the superlative performance of the Commissioner of Police, Delhi. It cannot have been easy to have discovered such a forgiving mindset among the army of babus milling around various offices in the national capital, and Dr Manmohan Singh, who holds charge of Personnel, must be given credit for his choice of the top bureaucrat in the Home Ministry, an individual who seems blind to ground reality, but who clearly has uses other than running his department efficiently and with accountability enforced. The Union Home Secretary is, doubtless, a votary of the Mahatma's doctrine that process is what counts and not outcome. That procedure trumps performances.

Despite their own desire that the name of their courageous daughter be made public, some obscure corner of the law has been seized upon by rule-toting functionaries to prevent the mass media from revealing her name.

Only such a view would have led to decisions such as the use of provisions of the Juvenile Acts to "protect the identity" of the helpless youth who bludgeoned a young woman to death after violating her in the most inhuman way. The laws of India may allow this creature of the dark to escape any but the most nominal of punishments for his appalling actions, but society has a right to know his name, so that those in his vicinity may be warned the next time he entices a young woman into a vehicle with intent to slake his desire for blood. Preventing society from knowing who he is, is in effect facilitating a repeat offence. Assuming, of course, that the 16 December incident was his first rape and murder. Given the calculated way in which he — literally — impaled his prey, it is very possible that there have been other victims in the past, who have been denied justice because of the quality of policing in non-VVIP Delhi. Rules and procedures, as indeed the force and majesty of the law, are intended to ensure Justice, with a capital "J". Should such constructs do the opposite, and allow deadly criminals to escape back into society almost without punishment, they would be subverting the very purpose of law, which is justice.

Despite their own desire that the name of their courageous daughter be made public, some obscure corner of the law has been seized upon by rule-toting functionaries to prevent even the mass media from revealing her name. It is as though a woman from the lower economic depths of society does not even have the right to a name, all she deserves is the facelessness of anonymity. And now, the depredator who violated her and tarnished the global image of an entire nation is going to escape the full force of the law, because of a piece of paper that is likely to be fraudulent. If rules subvert justice, they need to be set aside. The sixth perpetrator should have his identity removed, and share the fate of the other five. Of course, after the decades that will elapse before a "fast track" legal process can deliver justice.

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