Justice hurried is justice buried

Justice hurried is justice buried

By Ram Jethmalani | 12 January, 2013
A range of quick reforms, and not merely speedy trials, will lead to justice in rape cases in India.

The demands that emerged from the public protests and outrage of the people of India in late December can be summed up as follows: change of rape laws to make them more stringent; rigorous implementation of the law by the police; speedy trial and certainty of punishment for the rapist; effective preventive action through watchful mobile policing and immediate response to distress calls from women; and change of mind set and attitude towards women in the public, law enforcers and the judiciary.

The definition of rape under Section 375 IPC calls for an amplification and this forms part of the 172nd Law Commission Report, 2000, that recommends that all possible components of sexual assault are covered by it. However, I am of the view that sexual assault on males, minor or adult, should be dealt with separately. Evidence, almost conclusive, is available that many rape cases are not reported to the police because of the treatment victims receive at the police stations from male policemen either due to apathy or some corrupt motive. Equally, there is evidence that complaints of rape are not registered and therefore no investigation starts and sexual offenders go scot-free. This conduct is presently a punishable offence under a weak Section 217 of the Indian Penal Code. I believe that this offence should be made non bailable and cognizable, and should be investigated by the highest police officer available for this purpose. The New York police have female police officers at every outpost who are specially trained to deal with victims with great understanding and delicacy. We might well emulate this reform. I am confident that Justice Varma's Commission will address all issues pertaining to change of law.

Delays in disposal of criminal cases are ugly pox marks on our justice system. It is a fact that we require five times the number of judges we have today, something to which governments have habitually turned a deaf ear. Avoidable delays have to be eliminated, as punishment loses its deterrent potential if it does not swiftly follow the offence. But even here the solution is not to impose arbitrary limits of a few weeks or days as is being suggested in many quarters. True, justice delayed is justice denied; but equally justice hurried is justice buried. A just reconciliation of these two maxims must be left to reasonable judges of experience of criminal trials. Perhaps some administrative judges of the High Court should be appointed to ensure a fair and speedy disposal. I had made some recommendations regarding judicial reform when I was Law Minister in the NDA government, which I hope are revisited. Since there is such an acute shortage of judges, perhaps we can consider adopting the US pattern of removing the existing retirement age restrictions. The fact that several Supreme Court judges are reappointed in various capacities after retirement only reinforces faith in their capacity to discharge judicial functions even after the so called date of retirement.

Police reform is something that has been discussed and documented since decades. The first reform is to break the police politician nexus that has become firmly locked in a serpentine embrace, and has converted the police into an armed outfit of the political party in power. Absurd that it may sound; there is an urgent need for the police in India at all levels to relearn the rule of law. Very easily said, but this process can only commence with political will, and must cover the entire life cycle of the policeman from recruitment to post retirement stage.

The whole world has now seen our government resplendent in all its shame and mega incompetence. It has seen the insensitivity and non-accountability displayed by the UPA government and the Delhi Police led by its arrogant and incompetent commissioner Neeraj Kumar. We are indeed being perceived as a nation where rapists of savage, devilish form are unafraid and respectable; law abiding citizens have to hide in mortal fear.

The government and the Delhi Police can take pride in the fact they have set the highest standards of how to mismanage a public protest. They missed out all opportunities of confidence building measures with the community and the young peaceful protesters, as their cumulative rage against the apathy of the custodians of the law and their political masters was simmering to a boiling point. What prevented the police, even as investigations were going on, to establish contact with citizens' committees, student bodies, and women's organisations to engage in dialogue and build some confidence among them? This was a spontaneous gathering and winning them over by listening to them would have been the most basic act of confidence building. The political government was busy organising its numbers for the Constitution Amendment Bill for Reservation in Promotion. No one in a position of authority and responsibility had any time for the young people and the horrific crime they were protesting about.

Delhi Police seems to have sunk to such depths that they do not seem to have any intelligence systems anymore. The entire shameful episode has been an intelligence disaster for the Delhi Police, an activity for which crores of rupees are shelled out from the public exchequer outside of audit books. Or was the intelligence machinery so preoccupied with the government number gathering exercise that they failed to forecast the size and anger of the crowds that were spontaneously assembling at Vijay Chowk? Handling crowds and protests is not rocket science for the police and executive magistrates. It has age old and time tested protocols that are automatically initiated even by a taluk magistrate at the slightest hint of a public protest. Has the Delhi Police reached this decadent state that it has turned either ignorant or impotent to anticipate even this basic exercise?

Crowds kept gathering but not a single responsible voice was heard to reach out to the emotionally charged crowds of young boys and girls demanding better protection for women; no assurances were forthcoming from the Home Minister, Prime Minister, Sonia Gandhi or the dynastic heir of the Congress, Rahul Gandhi, who suddenly turned invisible and was either underground or abroad. The students knocked on the doors of the President demanding an opportunity to give him a representation, and what they got was a stony silence, followed by lathis, water cannons and tear gas. It is not known whether the police conveyed the request of the students to the President and whether he replied. But I am sure he was aware of what was going on, especially since the Rashtrapati Bhavan rooftops, for the first time in its history, were being used for firing tear gas shells. It is also not known whether he gave any advisory to the government to defuse the crisis. Or was he savouring the discomfiture of the government, about which also there is some muffled talk.

The crack Delhi Police suddenly remembered that the CrPC contains a Section 144 that is promulgated as a preventive measure to prohibit crowds from gathering at any defined area. It tried to use it innovatively as a dispersal measure on a crowd that was swelling by the minute, and landed itself into a cul de sac. On 22 December, after declaring it without announcing it by public address to the crowds, the Delhi Police looked more and more pathetic — lacking the professional skill to implement its own prohibitory orders, waging a war of tear gas and lathis and water cannon against the city's young, peaceful children.

The situation continued unabated, drawing universal criticism against the government and the Delhi Police. Porous sops in the form of multiple commissions, the favourite government vehicle for buying time were announced, while concealing from the public the fact that the 172nd Law Commission headed by Justice Jeevan Reddy had already done a detailed study and made recommendations for change of IPC, CrPC, and Evidence Act in the year 2000. The government neither informed the public something available in the public domain, that some amendments to the IPC regarding the definition of 'rape' have been already been approved by the Cabinet in July 2012. What was the reason for this concealment?

The dilapidated organs of the failed government continued to function adversarially, in full view of the world. The Delhi Police and their commissioner exuding arrogance and hubris attempting to interfere with the investigation by intimidating the SDM recording the victim's statement, about which the Delhi Chief Minister had to complain to the Home Minister. Anyhow, the visiting Russian President Vladimir Putin was most understanding and his visit reportedly went off well with some readjustments and lots of defence deals, with Section 144 Cr PC hovering in the background.

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