Creating a law-abiding society - Part 1

Creating a law-abiding society - Part 1

Recently, I had posted my thoughts on the need for judicial reforms in India. (If you missed it, you can read it here:

• The Anarchy that's India

A thorough and complete overhaul of the legal system, the laws of the land, addressing the adequacy of the number of courts, judges, cops, etc. would take a long time.

In the meantime, we can introduce a whole lot of small/minor changes which will have a quick yet significant positive impact on the society.

I plan to come up with a series of suggestions in this endeavour, in what I hope to be a series of posts.

Here are the first few suggestions:

• Create a course called "Essentials of Law" and make it mandatory at a few different levels:
  
  
  • "Introduction to Basics of Law" - For Class VI students. This should cover the need for law, importance of having a rule of law, the need for respect for law and a few basic critical aspects of laws.
    
    
  • "Exposure to Law - Growing beyond Adolescence" - For Class XI students - This should cover basics of criminal law, basics of commercial law, basics of civil laws, Legal duties and rights of a citizen.
    
    
  • "Getting ready for Responsibilities - Laws for being a good citizen" - For final year college students. This should include a more advanced and updated version of the above two courses.

• Introduce a "Double or Half" system to de-clutter the higher courts. Today, the high courts and supreme court are having a plethora of cases and the numbers are overwhelming. We must identify some simple and elegant method of de-cluttering the higher courts. Here are a few suggestions:
  
  
  • When person (whether an individual or an organisation) gets a judgement at the first court in which the case was originally filed, the person who feels that he is the aggrieved party goes in for an appeal. This is perfectly legal, but results in cluttering the higher courts with too many cases. Hence, a system should be introduced where the punishment in the form of imprisonment or a monetary penalty or both WILL be at least doubled in case the earlier judgement is upheld and will be at least halved if the earlier judgement is overruled.
    
    
  • For instance, in case the initial judgement had called for the convicted person to be imprisoned for 4 years and levied a fine of Rs. 100,000/=, in the first appeal, if the earlier judgement is held to be valid, the minimum punishment should be 8 years of imprisonment and a fine of a minimum of Rs. 200,000/=. if the earlier judgement is overturned, the maximum punishment levied for the originally convicted person should be 2 years imprisonment and a maximum fine of Rs. 50,000/=.
    
    
  • This process will ensure that both parties involved in the litigation will think a hundred times before going in appeal.
    
    
  • While enacting the necessary modification in laws to implement the above suggestion, the constitution should be amended so as to enable and empower the judges hearing the case in every appeal to go beyond the maximum punishment applicable in the relevant acts as well as to go below the minimum punishment applicable in the relevant acts.
    
    
  • Let me explain this with an example - Suppose the maximum punishment for a specific crime is 10 years imprisonment; Further suppose that the original judgement in the first trial court had been 8 years. If the conviction is upheld in appeal, the judge should have the flexibility to go beyond the maximum punishment of 10 years, and should even be allowed to prescribe an imprisonment of upto 16 years.

I invite suggestions from all of you to make the judicial system quick, responsive and effective in providing justice.

Regards,

N

Delhi Gang-rape and Media Mania

Delhi Gang-rape and Media Mania

Well, the gang-rape of a 23 year old girl, about which I had written a while ago (Death Penalty should be imposed for rapists or not ... ... ...) has apparently been a particularly gruesome crime.

However, the way in which the English "National" TV news channels have been covering it, makes me wonder?!?!? Virtually, whenever I've tried watching one of these channels, they've been discussing about this particular news item and all kinds of "linked" news. This horrible crime certainly deserves mention (here I must emphasise the very same statistics that these folks keep talking about: Over 24000 cases of rape in India every year - almost three per hour). But should it be covered in a "non-stop fashion" almost to the total exclusion of all other topics? I certainly don't think so.

Look at a few other "newsworthy" items that have "got lost in the din":

• Shiv Sena has, apparently, quietly agreed to let go of their original demand to convert the Shivaji Park into a memorial for their deceased leader.
• Fairly significant protests by DMK against the electricity shortage in Tamil Nadu
• Review (and mauling) of our defeated cricket team - After all, cricket is religion in this country
• Financial Troubles @ Kingfisher Airlines and linking it (irrelevently) to the personal donation of a huge quantum of Gold to Lord Balaji @ Tirupathi by Vijay Mallya
• The huge fire at Hyderabad Airport and the usual debates on violation of safety norms at our airports
• The re-naming of the erstwhile Deccan Chargers team (and its prospects in the forthcoming IPL)
• Banking Amendment bill being passed in Parliament, its implications (and whether it was debated adequately in Parliament)
• Pratibha Patil committing to return a whole lot of artefacts to Rashtrapathi Bhavan by June 2013 

I must admit that a few of these news items might have been "mentioned in passing" by a couple of channels. However, despite checking with a few of my friends, I must reaffirm that none of us had managed to see any meaningful discussion on any of the above news items.

Let me make one thing abundantly clear: I am not trying to "underplay" the significance of either the Delhi gang rape or the protests that followed.

My curious query: What happened to that old-school term called "Perspective"? 

Regards,

N

Death Penalty for Rapists - Is it Warranted?

Death Penalty for Rapists - Is it Warranted?

There has been a national outrage (well, at least on all the TV channels that I was watching) about the gang-rape of a 23 year old woman in a moving bus in Delhi.

At the outset, let me make things abundantly clear that the culprits must be immediately brought to book, tried, and punished in accordance with the prevailing laws. (Today's laws can result in a jail term ranging from 7 years to a maximum of life imprisonment.)

Further to this horrific rape, a whole lot of people have demanded that the laws should be amended to enable the "Death Penalty" for rapists.

Personally, despite being a rather unsavoury punishment, in the Indian context, I'm still in favour of continuing to retain the "Death Penalty" as an option for the "rarest of rare cases". In this post, I will not go into the details of my reasons, which I can elaborate at a later point of time. In this post, I will restrict my arguments to proffer reasons as to why "Death Penalty" should not be allowed to be imposed on Rapists. Here goes:

• Rape, as a crime, while being a horrendous one, already punishes the victim in the existing process of law where the victim is repeatedly questioned at length during the court hearings. If this is the situation presently, you can imagine the rigour of such questioning in case the law allows imposition of the "Death Penalty".
  
  
• As it is, the conviction rate is pathetic for crimes of rape. If you desire to impose "Death Penalty", the judges (and the accused persons & their lawyers) would expect a greater degree of "proof and certainty" - This would further reduce the conviction rates.
  
  
• A vast majority of cases of rape are, even according to the experts on human rights, acts of a perverted mind. The moment you concede that rape is the result of a perverted mind, there is always the scope to "reform" the perverted mind. If you impose the "Death Penalty", you are condemning the rapist to a punishment that eliminates the possibility to reform himself.
  
  
• Unlike most other crimes, rape is "difficult to prove", with "your word versus mine" situations being quite common. In fact, in many instances, the rape victim is often so terrified by her experience that immediately after the crime, she rushes home and (sorry to say this openly) cleans herself up completely and thoroughly, because she feels so deeply violated - both physically and emotionally. Unfortunately, in this very process of cleaning up, she often ends up destroying a whole lot of "evidence". Sad, blunt, but true. This again results in the problem of depending on "circumstantial evidence" to prove the crime. "Death Penalty" is seldom likely to be imposed based on such "circumstantial evidence"
  
  
• The situation becomes far more confusing when you have a situation of rape by one (or more) stranger(s) in a dark alley, for instance. Proving guilt or innocence becomes all the more challenging. With advanced forensic technology and with a willingness on the part of a victim to lodge a complaint with the law enforcement agencies immediately after the crime, it may be feasible to nail the real culprits. However, I don't see that happening in today's India.
  
  
• Now we need to look at the microscopic minority of cases where there is a FALSE accusation of rape. This could happen in a variety of instances ranging from a vengeful woman, a "ditched" lover, a commercial sex worker who did not get the money, etc. In such cases where the real criminal is the so-called victim, it would be quite feasible for her to "create the required evidence" to nail the "culprit" who is actually innocent. I repeat, in today's India, over 95% of the rapes will be horrible crimes against women. However, when you have over 24000 cases of rapes being reported every year, even the remaining 5% translates to a sizable number. And even if ONE innocent person is going to be punished, I'll much rather prefer if he is made to suffer a jail term rather than a "Death Penalty". For obvious reasons.
  
  
• Finally, when you take a few years to actually execute a clearly "open and shut case" like Kasab, you can well imagine the kind of time that you are going to take to achieve "closure" of rape cases if "Death Penalty" is allowed. All said and done, in cases where we are talking about a jail term, by the time the cases reach the high court, the "period of imprisonment undergone" might have exceeded the intended jail term, and people may not necessarily drag on the cases all the way to the Supreme Court. However, if we are contemplating "Death Penalty", you can be rest assured that each such case where the accused is convicted, he will go all the way to the Supreme Court to escape the "Death Penalty". In fact, it may not even end there - There is always a "request for Presidential Pardon" - And the possibility of further litigation on the grounds that the accused has already "mentally suffered" due to the "inordinate delays" in the decision making process.

Keeping in mind all the above points, I am sure that "Death Penalty" is certainly not appropriate for rapists. Much better for all parties concerned will be to hasten the investigation and trial process and ensure that final closure is obtained within a maximum of a few months from the original date of complaint.

Regards,

N