Demonising the legal system won’t help

The killing of the four men accused of the rape and murder of the Hyderabad veterinarian will need to be properly investigated, though the Telangana police’s conduct thus far does not inspire confidence. Ever since the police first turned away the victim’s family when they went to lodge a complaint, they demonstrated no commitment to the rule of law. Finally, they claimed that the accused, who were under heavy police protection, tried to escape and had to be killed.

The atmosphere of lawlessness that was built up prior to the shooting certainly did not help. From protesters on the ground, to the commentary on social media, to MPs in Parliament, the demand for the instant killing of the accused from all corners created the public opinion for the abandonment of the rule of law that appears to have led to the incident.

The argument made by people is that the rule of law is not giving women justice, and that at the very least, laws need to be amended to create a stronger deterrent and provide quicker closure to victims of crimes of sexual violence.

Flawed arguments

Both arguments are flawed and need to be challenged or, once again, hard cases will lead to bad law. The chargesheeting rates in cases of rape as well as rape and murder are higher than that for all other violent crimes, and the conviction rates are higher too, while the pendency rates are roughly the same as the average for all violent crimes.

The court pendency rate for crimes against Scheduled Castes (SCs), on the other hand, is far higher, but you will not see mass public support for killing those accused of atrocities, including caste-motivated rape against Dalits.

Demonising the legal system won’t help

Even among those rare few who have professed some belief in the rule of law in the last week, the argument has been that “laws need to get tougher”. The hard truth, after an examination of legal reform recommendations and available judicial data, is this — there is no new law needed; in fact, some of the existing legal provisions are too harsh in ways that harm both men and women, and other important legal provisions are not being implemented.

The most comprehensive review of the gaps in laws around sexual harassment and sexual violence came in the aftermath of the 2012 Delhi rape incident in the form of the Justice Verma Committee Report and its recommendations. (It is worth noting that the report’s recommendations began by acknowledging that existing laws were adequate, but some improvements could be made.) The report’s key recommendations were centred at improving the status of women in non-legal ways as well, but its legal recommendations included a much-needed broadening of the definition of rape. The report also recommended raising the minimum sentence for rape to 10 years.

Strengthening the law

The 2013 Criminal Law (Amendment) Act, which sought to operationalise some of these suggestions, went well beyond what was recommended by the Verma Committee Report. It introduced the death penalty for some circumstances around rape, including repeat offences, despite the Verma Committee expressly arguing against this. Subsequent laws have raised mandatory minimum sentences and simultaneously raised the age of consent.

These changes have had a few worrisome results. One, there has been further criminalisation (with longer sentences) of consenting underage couples, which my investigation for The Hindu in 2014 in Delhi found was very common. Two, laws have removed any discretion in minimum sentencing from the hands of judges. There is evidence from other fields of law that removing such discretion actually lowers the rate of conviction.

Two of the largest categories of rape cases I found pertained to consenting couples criminalised by the woman’s family (over 40% of the cases in Delhi) and ‘breach of promise to marry’ (over 25%). Further, conviction in cases other than those involving these two categories was over 75%. What we have now is a situation where there are not any remaining loopholes in laws concerning sexual violence against women; on the other hand, there is no legal protection for adult men from rape, and under the new Transgender Persons (Protection of Rights) Act, the sexual abuse of a transgender person carries a maximum sentence of two years only.

Official statistics on the speed of trials by nature of crime are not maintained; however, there is anecdotal evidence among practising lawyers that the average rape trial in a big city at the trial court stage is now completed within two years, but the appellate process takes longer. In the 2012 Delhi case, the trial was conducted within a year, the High Court appeal by March 2014, and the Supreme Court appeal by May 2017. Subsequently, the appeals of the convicts against their sentence — the death penalty — were heard and rejected.

When the accused is powerful

There remain instances, particularly when the accused is a powerful person, where the process of exhausting the individual’s pre-trial options, including attempts to quash charges or shift the trial to a friendlier city, makes a mockery of a fast-track case; the trial of former Tehelka editor Tarun Tejpal, accused of sexually assaulting an employee, only resumed in October 2019 as Tejpal went up to the Supreme Court seeking quashing of the charges filed in 2013.

The argument here is not that the accused should not receive the full range of pre-trial legal options guaranteed by law, but that they be heard at a pace that maintains the spirit of providing speedy justice to the complainants.

Other improvements in existing laws remain essential — the police are still able to ask worried parents to return home without filing an FIR (already a punishable act for the police); victims still face cross-examination about their past sexual histories; and there is still little by way of rehabilitation or even therapy offered to victims.

Legal arguments are easy to make from a distance — when one is not suffering the agony of a family that has had to imagine the final, helpless hours of a loved one. There is no doubt that the anguish or the “outrage” of people in the aftermath of such horrific crimes is justified and, for the most part, well-intentioned. However, hard cases have already made bad law in India, and we continue to flail in helplessness for more laws. The tragedy is there is no band-aid left. Instead, by abandoning principles of justice to calm the rage, we are making the country more savage and less safe for women.

Rukmini S is a Chennai-based data journalist

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Printable version | Mar 6, 2021 1:35:40 PM |

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