WE are just recovering from the storm that blew across India when the nation’s capital reported a dastardly crime of rape and murder of a budding physiotherapist. The only fault of the victim (whose name has been rightly withheld) was that she went for an evening movie along with a male friend, and both later chose to travel home in a bus (one that is normally chartered by schools and is not a means of public transport) driven by a thug. During this fateful journey, the latter, with a few accomplices already in the vehicle, violated the woman, injured her fatally when she resisted and threw her and her friend on to the roadside. For sheer brutality, the happening was nearly unparalleled. It revealed the stark and ugly face of urban India.
The episode has been followed by many more attacks, albeit of lesser savagery, in quite a few towns. So much so, I believe, India may no longer be regarded as the land of the Mahatma but as a nation of male predators. The Delhi incident highlighted how our cities have become nearly ungovernable owing to a growing disrespect for and a manifest lack of fear of the law. It is often said that certainty of punishment deters crime. The opposite—something that is prominent in our ambience—is equally true.
Where there is a more-than-reasonable assurance that the law can be manipulated, there is an alluring incentive to commit crime. This is exactly what is happening around us. The majority of criminals get away because of simple procrastination of court procedures aided by a compromised and subtly complicit prosecution and a supine subordinate judiciary, which is willing to be subverted. It is against this backdrop that we must evaluate the demands for setting right our hugely battered criminal justice system. The jurisprudence governing, in particular, sexual assaults on women needs immediate repair, and the Central government’s quick action appointing a committee headed by the former Chief Justice of India J.S. Verma was pumping in oxygen at the right moment. It is an entirely different matter that the recent Government of India ordinance did not go the full way in endorsing all that Justice Verma said. A good beginning has, however, been made to put some fear into all those intending to harm womanhood.
The killing has once again stirred a strident demand for imposing the death penalty on a rapist found guilty by a court. This has been expectedly spearheaded by a large number of women’s organisations in the country which feel that nothing else will deter a potential rapist. While we empathise with the spirit behind the clamour, those familiar with the nuances of sentencing processes know that such a move would further bring down the already abysmal rate of successful criminal prosecution. (India’s conviction rates where women are victims are shamefully low.)
Capital punishment greatly pushes up the standard of proof that trial judges would look for before concluding on guilt. Given the poor quality of police investigations in India and the heavy odds in the form of pernicious money power and caste loyalties that operate in the field, especially in rural areas, many genuine rapes could go unpunished if there is a mandatory death sentence. This is what possibly influenced Justice Verma to prefer life sentence over capital punishment where a rape leads to the death of the victim or leaves her in a vegetative state. Ironically, in such cases, the government opted to go with the voices of women activists in settling for a mandatory 20 years in prison, or life sentence extending to the natural life of a convict, or death. (A new section of law, 366-A in the Indian Penal Code, has been introduced by the ordinance, which has also replaced “rape” with “sexual assault” in Section 375 of the IPC.) In a queer shift of opinion, some women activists are now said to be veering round to Justice Verma rather than the government.
The whole controversy about the death penalty in India and the suspected flip-flop of women’s organisations on the subject confirm that informed and objective debate on the whole gamut of issues involved is still elusive. There is a confusion here that runs like this:
If the death penalty is too harsh, is a life sentence the only alternative? If so, should such a sentence run for the whole life of a convict? Or, are there circumstances under which a well-behaved convict could be prematurely released, and if so, how soon after he enters jail? What are the implications for crime when a confirmed rapist is let back into the community? These are serious issues which cry for well-conducted, down-to-earth research studies, something rare in our country. We, therefore, shift continents and analyse the burgeoning literature on sentencing guidelines available in the United States.
Life without parole It is most appropriate that I mention here a remarkable book I came across recently. Life Without Parole: America’s New Death Penalty? (New York University Press, 2012) is a collection of brilliant essays devoted to the subject of a fast-growing alternative to capital sentence. It does not confine itself to sexual assaults but dwells on a wide spectrum of heinous crimes for which a convict merits death. Many abolitionists are conscientious objectors to capital sentence. Nevertheless, being tough on crime, they would like to handle it sternly. It is they who feel that a confirmed criminal who kills others in the most savage manner imaginable deserves to be put out of action forever and locked up for the rest of his life. This is the genesis of the so-called “life means life” concept, to which Justice Verma also seems to subscribe when he prescribes a 20-year sentence for those guilty of gang rape and life sentence (obviously longer than 20 years in prison) for rape that is accompanied by murder or leaves the victim in a state of vegetation.
A set of hawks go a step further and believe that in a regimen where the death penalty is either not available or cannot be imposed for a variety of reasons, a life sentence without parole is eminently suitable in the most barbaric of crimes, something that resonates with the theory of “rarest of rare cases”. “Life without parole” (LWOP) has raised the hackles of many human rights activists, who say that such a confinement for the life of a convict is uncivilised beyond words. The book, edited by the eminent Harvard Law School Professor Ogletree, Jr and Amherst College Professor Austin Sarat, undertakes a clinical study of the concept through its eight chapters of pure gold carved by outstanding scholars across the U.S.
Divided into two parts—LWOP in Context and Prospects for Reforms—the outstanding volume presents all that we need to know on a subject that is going to become increasingly relevant to Indian courts because of the escalating criminal violence and simmering discontent with how the judiciary is handling it. An eloquent introduction by the two editors begins by referring to The New York Times reporter Adam Liptak’s observation (2005): “…Driven by tougher laws and political pressure… thousands of lifers are going into prison each year, and, in many states, only a few are ever coming out, even in cases where judges and prosecutors did not intend to put them away for ever… a booming population of prisoners whose only way out of prison is likely to be inside a coffin.” There cannot possibly be a more vivid description of man’s inhumanity to man!
One must consider this against some chilling statistics: Of the more than 140,000 people serving life in U.S. prisons, as many as 40,000 are held under LWOP. The costs of such detention are enormous. More disturbing is the inescapable fact that the whole process is geared against the minorities (read African Americans), a phenomenon that gives the American justice system a bad name. Ogletree and Sarat are appalled at the searing insensitivity of policymakers whose myopic vision is that only stiffer sentences can bring down crime. The authors’ anguish is that punishment grabs the disproportionate attention of lawmakers, who painfully ignore research studies which show that public money spent on education and prevention are far more effective in reforming young people, especially those involved in gang-related crimes. There are signs of reform of the law on the subject to make LWOP more predictable and rationally used, especially in the context of a U.S. Supreme Court ruling that LWOP is “unconstitutionally cruel and unusual for juveniles who commit non-homicidal offences”. We must at the same time remember that, in the ultimate analysis, it is politics coupled with showmanship that shapes criminal justice reforms more than sagacity and nobility. This is why I believe it is retribution rather than clemency that would continue to characterise sentencing guidelines.
Subjectivity and excesses Women activists are justifiably euphoric about most of what the government has done on the Justice Verma report, although they are not wholly satisfied that the government chose to ignore a few recommendations, including criminalisation of marital rape and amendments to the Armed Forces (Special Powers) Act, or AFSPA. What they forget is that stiffer penalties for those who assault women give enhanced authority to police investigators and enlarges the scope for abuse. Two well-written books, B. Uma Devi’s Arrest, Detention, and Criminal Justice System: A study in the context of the Constitution of India (Oxford University Press, 2012) and Jinee Lokaneeta’s Transnational Torture: Law, Violence, and State Power in the United States and India (Orient BlackSwan, 2012), deal with the subject of state arbitrariness and measures initiated until now to curb executive discretion.
Uma Devi, an advocate and researcher, quotes the various provisions of the Constitution and refers to case law in detail to illustrate how lack of supervision could result in subjectivity and excesses. She is incensed over prolonged detention of suspects that precedes both investigation and trial. A human rights supporter, Uma Devi is disappointed that despite claims of the use of science and technology, investigation is still painfully slow, causing undue hardship to those held in custody. This is a reasonable complaint. But here the police investigator alone is not culpable. Forensic laboratories are equally guilty for their tardy responses to the investigator.
She is highly critical of punitive detention and its limitations. In her view, crime control is best done through prevention rather than penalising the delinquent. While one cannot question the fundamentals of her advocacy, she sounds quite superficial in making assertions that need support in terms of research.
Jinee Lokaneeta’s work also covers misdeeds of the state, especially the widely prevalent practice of torture in liberal democracies. She takes up the U.S. and India for her study and explores how real are the claims that both nations have abjured violence against prisoners and have punished delinquent state officials. Despite President Barack Obama’s assurance during a speech (December 2, 2009) on Afghanistan that he had already prohibited torture and was determined to close down Guantanamo Bay, torture remains a topic of discussion in the country through the many court cases that are in progress.
The Indian scene is not very different. No major scandals may have been unearthed in the recent past. But then, there is an uneasy feeling that the barbaric practice of maltreatment of crime suspects or perceived terrorists exists in a subtle form in many police establishments. The legitimacy of violence perpetrated by the state machinery is something that is difficult to get away from. Although the executive in liberal democracies draws up a distinction between what is permissible and what is not, especially when security agencies have to deal with mob violence and terrorism, the line of distinction is thin, leading to condemnable violation of human rights. Jinee Lokaneeta’s work is incisive, and it pulls no punches when stating that liberal democracies are not very much better than dictatorial regimes. This conclusion may be disturbing but is one that cannot be wished away.
India has a long way to go in checking state abuse of hapless citizens. Only transparency in governance can mitigate the situation. The big question is, how does one go about this at a time when urban crime is becoming more and more dangerous and terrorism is at the doorstep of every citizen? Issuing more ordinances and creating new legislation by the month will be no answer. Unison of mind and dedicated team work between the polity and the citizenry may be the only answer.
R.K. Raghavan is a former Director of the Central Bureau of Investigation.
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