Laws on Sexual Assault

Laws on Sexual Assault

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. There have been multiple calls for suitable modifications in the laws pertaining to crimes against women. Justice Varma's report is due any time. Laws are likely to be made much stricter, and the entirely justified pressure from the public, the media, various political parties, etc. will ensure that the enforcement authorities also take crimes against women far more seriously.

However, we should not go overboard. Here's why:

• India has a population of around 1.25 billion, of which around 600 million are males. For argument purposes, let's assume that out of these, around 450 million males (after eliminating young boys below the age of 10 and men above 75) are capable of committing crimes against women.
• On an average, there are around 24000 reported cases of rape. Admittedly, far too many cases of rape go unreported. Let's assume that the claimed statistics (of 90% of rapes remaining unreported) about unreported cases is true, which results in 240,000 instances of actual rape. Let's further assume that there are an equal number of "attempted rapes" not resulting in actual rape. This translates into 480,000 culprits who deserve some sort of punishment. Let's round it off to 500,000 criminals.
• We must remember that even a SINGLE rape or attempted rape is certainly unjustified and ought to be punished. With the severity it deserves. The above statistics implies that we have 500,000 cases more than what is acceptable in a civilised society.
• It is equally important to remember the single-most important tenet of our judicial system: "Let a 1000 criminals go unpunished. Even a single innocent person should not be convicted."
• For the folly of 500,000 criminals, we should not, by mistake, punish even one of the remaining 449.5 million men. We're talking about 449,500,000 innocent men. Believe me, that's a very large number. If you wish to talk percentages, 99.95 percentage of the men are innocent as per this calculation.
• The vast majority of these 449,500,000 innocent men will routinely be
  • Using Public Transport (buses, share autos, trains, flights, etc.)
  • Periodically be having an interaction with a woman without the presence of any witness for completely routine transactions (Just look at the variety of human beings and you'll know what I mean: A farmer, a servant / servant maid, a plumber or electrician, a teacher or a student, a doctor or a patient, a lawyer, an actor, a grocer, a nurse, a sportsman, a media professional, a housewife, a pilot, an air hostess, a sales girl, a priest, a devotee, a politician, a corporate honcho, etc.) It is going to be physically impossible to prevent all these sources of interaction between men and women, even if some crazy people assume that such interaction is undesirable and is to be restricted.
  • There will be daily instances numbering several millions where there is physical contact between men and women during the course of such interaction. Well over 90% of the above will NOT be having any form of sexual undertones. Do we desire a situation where for the folly of .05% of men, 99.5% of men and 100% of women are living in a state of fear? I hope not.
• If we create a law with the potential to punish even a single innocent male or, worse still, create a law where there is a subtle shift in the burden of proof (from assuming innocence to assuming guilt), the consequences could be catastrophic. 

There happens to be a word called Perspective in the English language. Let's not forget that in the prevailing atmosphere which is baying for the blood of any person who is even accused of a crime against women.

Regards,

N

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Creating a law-abiding society - Part 2

Creating a law-abiding society - Part 2

As I mentioned earlier, I've decided to write a series of blog posts on this subject. If you missed the first instalment, you can read it here:

• Creating a law-abiding society - Part 1

In this post, I'll address some aspects of the perennial problems faced by the traffic police - Please remember that the violation of simple traffic norms, rules, regulations and laws by you and me results in the DEATH of a few thousand Indian citizens EACH YEAR. I read a recent report which suggests that in the city of Chennai (Madras) alone, over 500 people die on the railway tracks while trying to cross the railway tracks. Apparently, a vast majority of people believe that "Trains will hit other people - not me"!

• Shortage of Traffic Police
  
  
• Willingness of citizens to "take a chance", violate traffic rules, and, if they get caught, pay either a fine or a bribe and proceed with life. An important reason for this "devil-may-care" attitude of citizens is that they see everyone else violating traffic rules and they don't see enough of them getting caught. In fact there is a social acceptance of these traffic rule violations - People who will think a 100 times before robbing a bank or committing a murder are perfectly willing to jump a red signal, go down the wrong side of a one-way street, "forget" to wear a helmet or a seat belt, travel on the foot board of buses, violate speed limits, dig up public roads to "take care" of their personal problems, throw all kinds of rubbish on the roads, use public roads as private parking lots, etc.

We need to come up with a paradigm shift in our laws so as to handle the above two problems.

Here are a few suggestions in this endeavour:

• For the Traffic Police:

 

• Introduce a "variable pay / incentive" structure for traffic police which is linked to the number of cases that they book - Till the number of cases reduces drastically, this will be a sensible suggestion to enable the traffic police to book cases and get paid official incentives rather than to get tempted to accept bribes.

• Simultaneously, introduce a very strict mechanism for punishing "bribe-takers" - Any traffic police who is found to take a bribe in excess of Re 1/= (Yes, One rupee) should be summarily dismissed from service, in addition to which the normal law will take its own course for levying appropriate penalties, imposing imprisonment, etc. based on the gravity of the crime. After all, the "law-enforcers" should not be breaking the law. There's no reason to have anything other than "zero-tolerance" for "bribe-takers". This rule will straight-away eliminate all temptations to take petty bribes. Nobody will want to risk his /her job for the sake of a small percentage of one's monthly salary. (We'll think of suitable means to tackle "big-time bribe-takers" in due course).

• For the Traffic Rule Violators: Over and above any or all the punishments that are presently applicable to violators of traffic rules, the following additional rules should be imposed.

• For every person who violates any traffic rule, a graded system of mandatory community service with a minimum of 1 week's community service MUST be introduced. These individuals who are undergoing such "community service punishment" may be used to assist the traffic police in managing traffic. This will partially enable the traffic police to "manage" their problem of manpower shortage.

• Ideally, these individuals should be forced to wear an easily identifiable overcoat, for instance, which will PUBLICLY indicate that they are undergoing punishment for violating traffic rules. This will very quickly create a stigma and break their present willingness to violate traffic norms with impunity.

• When a driver of a chauffeur-driven car (or the driver of a lorry or a two-wheeler rider) violates any traffic rule, the driver as well as the owner of the car and the passengers of that car at the time of such a violation must be held liable to the limited extent of doing community service. All other forms of punishment such as fines or imprisonment would continue to be applicable for the driver alone.

• This punishment of "community service" will be applicable to all pedestrians who happen to be violating traffic rules by, for instance, crossing the road at a place where they are NOT supposed to cross the road.

• All repeat offenders will be imposed with ever-increasing durations of punishment by way of compulsory community service.

• The moment a vehicle is found to be involved in a traffic rule violation, the vehicle will be sent over to the nearest police station. The vehicle will be returned to the owner ONLY AFTER the "community service punishment" duration is completed.

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

Regards,

N

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

The Parable of the Stinking BadCurry

The Parable of the Stinking BadCurry

A group of friends went to a restaurant attached to a five-star hotel for a nice dinner. Unfortunately, they ended up having an 18-course meal, all of which was spoilt by a recurring presence of a single BadCurry.

When they went back home, they told all their friends and relatives about their taste of BadCurry.

A few of these friends leaked the matter to the media.

The lousy stink of BadCurry was splashed around all over the print media, TV Channels, etc.

The matter went all the way back to the hotel.

The age-old Chairman of the hotel refused to believe that his hotel could have any stinking BadCurry. And refused to attend any review meeting. The other members of the board of directors, obviously, had an eye on the Chairman's position (at least in due course). At the same time, they also wanted to ensure that other hotels in the city don't exploit their weakness due to the stinking BadCurry.

Like the proverbial kingdom of yore where nobody was willing to mention the fact that the King was wearing no clothes, most of these board members "decided" that the BadCurry did not stink.

Again, like the small child in that very same kingdom, the child of a board member (who was also an Executive member) ended up shouting: "The BadCurry stinks!

The media went gaga over it.

The board memers decided to hold a meeting. With or without the Chairman.

And they reviewed the BadCurry.

After due deliberation, the members decided that they'll listen to the sage advice of Orwellian elders, and decided that they'll continue to maintain that the BadCurry did not stink.

And promptly issued a press release stating that the BadCurry did not stink. And issued an internal circular that none of the board members or others in the hotel should comment anything about the BadCurry - irrespective of whether or not the BadCurry stinks.

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Sadly, the board members didn't realise that whether the BadCurry stinks or not depends on the BadCurry, and not on the opinion of the board members.

The media, of course, is waiting with bated breath for further stinks from the BadCurry.

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Regards,

N

The Anarchy that's India

The Anarchy that's India

One of the essential features of a just society is that the rule of law must prevail.

A guy who violates the law must be afraid that the law enforcement agencies will catch up with him and he'll have to be afraid that he'll need to face the consequences of his action.

Similarly, one who is innocent must have the confidence that even if the circumstances may portray him otherwise, the legal system will provide justice and declare him to be innocent.

And in both the above cases, the concerned parties must be sure that justice will not only be done, but will be done within a reasonable span of time.

Sadly, in India, we can't be proud of our legal / judicial system. With some benevolence, positive bias and affection towards our nation, we can claim that justice prevails in a majority of cases. However, when it comes to timely justice, we can't even offer such a benefit of doubt.

Take a look at this essay revealing startling data about the low conviction rates in our judicial system:

• State of Criminal Injustice 

With the kind of low conviction rates that prevail in India, we face two very significant kinds of problems, both of which are critical ones:

• Those who wish to follow the rule of law do not have an adequately strong motivation to do so.
• Those who wish to violate the rule of law can, with impunity, go right ahead, with the confidence that the law may never catch up with them.

This results in situations which are quite crazy even for fairly rich and powerful individuals.

For instance, several public figures who have done so much during their life time for India were "named and shamed" during the infamous Harshad Mehta scam a few years back. The cases went on and on. A few of those who were so named were eventually declared to be innocent. Sadly, they had died by the time the judgements came. Their entire life from the time aspersions were cast on them would have been a mess, with all and sundry, kith and kin, relatives and friends, colleagues and classmates thinking and wondering whether they were involved in the scam or not?!?!?!?

If this is the fate of the rich and mighty who would have obviously been in a position to come up with a team of excellent advocates to argue on their behalf, one can only imagine the plight of the lesser mortals.

To quote a couple of examples from the western world, one just needs to look at Bernard Madoff and Rajat Gupta. Within a short period after the initial accusations, investigations were completed, trial was completed and sentencing was also completed. The former is presently in jail and the latter is likely to go to jail soon enough.

On the other hand, in India, Ramalinga Raju of Satyam (who admitted to violating half a dozen laws) is out on bail and I have a lurking suspicion that he's likely to stay free for a long time to come while the cases move from one court to the next. Possibly till he breathes his last.

If we, the people of India, do not wake up and improve our judicial system, the consequences would not be palatable to our future generations.

Regards,

N