Will passage of legislation calling for more stringent punishment reduce crime, or are these mere palliatives perpetuating ineffective legal reforms?
The gruesome rape and murder of a 31-year-old doctor in RG Kar Medical College has shocked the nation and once again raised attention to the subject of the safety of women in the workplace. Specific spaces are accepted as safe zones; among these are our homes, schools, and hospitals. When these spaces get violated, the outrage is understandably more immense. When the state is perceived to be covering up for the perpetrators of the crime, the outrage boils over onto the streets, which is why the people of West Bengal continue to protest, although the horrific incident took place on 9 August and over a month has elapsed since then. Tragically, doctors, at times, also become the predators in hospitals. On 10 September, Dilshad Hussain, a first-year resident doctor in a medical college in Agra, sexually assaulted an eleven-year-old girl on the pretext of examining her. He was arrested the next day.
In West Bengal, to quell the flames, the government has resorted to punitive legislation as an antidote for the crime of rape by passing the Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024. By amending the relevant section of the Bharatiya Nyaya Sanhita (BNS), the Bill imposes the death penalty or life imprisonment for rape. But will this quell the outrage? More importantly, will the passage of legislation calling for more stringent punishment reduce crime in the country, or are these mere palliatives perpetuating ineffective legal reforms? We have an abundance of laws. The weakness lies in implementation mechanisms, the attitude of the judiciary in how it views crime, and the long-drawn-out legal process, which makes it practically impossible to convict a criminal in a short time.
The Indian Army maintains a high standard of discipline because the Army Act is an enabling provision that ensures swift justice. This acts as a deterrent to would-be defaulters. Here, it is not the quantum of punishment but its certainty and swiftness that acts as a deterrent. This is not so in the civil courts, which take years to convict a criminal. The appeals process, right up to the Apex court, makes the process a near-unending one. The victim is emotionally scarred as she has to relive the horror time and time again. For her and her family, there seems to be no closure—only pain.
Why is our system so weighted in favour of the criminals? In a fit of grandstanding, William Blackstone’s 1769 doctrine that “the law holds that it is better that ten guilty persons escape than that one innocent suffer (innocent person be convicted)” is oft quoted. Benjamin Franklin went further, arguing, “It is better a hundred guilty persons should escape than one innocent person should suffer.” Like the British system, the American system is also weighted towards protecting innocence. But has this been carried too far in the Indian system of jurisprudence? And better for whom, may we ask? Let us examine how the Indian judiciary has dealt with some cases of rape and murder.
In March 2024, Mukul Kumar, a 19-year-old, allegedly murdered a 52-year-old railway employee and his eight-year-old son in Madhya Pradesh’s Jabalpur district. Kumar was earlier arrested and charged with the rape of the railway employee’s 14-year-old daughter in September 2023 but was granted bail. He is absconding.
In October 2023, a bench of the Calcutta High Court commuted the death sentences of Saiful Ali and Ansar Ali to life imprisonment. It acquitted Amin Ali, who faced the death penalty as well, citing a lack of evidence. The sentence was commuted as the court said that the injuries on the girl’s body were not extensive and brutal. The case pertained to the rape and murder in June 2013 of a 20-year-old BA student in Kamduni village, North 24 Parganas, West Bengal. After gang-raping her, the perpetrators tore open her legs up to her navel and slit her throat before discarding the body. Three of the accused were awarded the death penalty by the trial court, and three were sentenced to life imprisonment.
In October 2022, the Lucknow Bench of the Allahabad High Court granted bail to three rape accused on condition that the accused marry the victim. In two other cases, bail was given when the counsel of the accused told the court that the accused would marry the victim as soon as he secured bail.
In 2022, four of five minors accused of kidnapping and gang-raping a 16-year-old girl were granted bail. The fifth accused, Sadauddin Malik, was denied bail only because his petition was pending before the High Court.
In December 2021, the Kerala High Court reduced the sentence on Robin Mathew Vadakkumchery, a Catholic priest convicted of raping and impregnating a minor girl, from 20 years to 10 years of rigorous imprisonment.
The list is endless. The propensity to go soft on rapists and murderers on the pretext of upholding some high-sounding principle of British jurisprudence does little to enthuse the citizens of Bharat with confidence. In a rape case in Hyderabad involving an AIMIM MLA’s son, the High Court imposed a bizarre condition while granting bail: “The mother has to ensure that accused does not repeat offence.” Really? Then we have the High Court of Orissa commuting the death sentence of Sheikh Asif Ali, who was convicted of rape and murder of a six-year-old girl because he was consistently offering namaz several times a day and he was ready to accept the punishment as “he has surrendered before God”.
In another case in Madhya Pradesh, the court reduced the life sentence of the rapist as he was kind enough to leave the four-year-old victim alive. In yet another case, the Apex Court, while commuting the death sentence imposed on Firoz Khan for the rape and murder of a four-year-old girl, stated: “Every sinner has a future.” Could the courts at least spare the long-suffering citizens of Bharat from such homilies?
We have horrendous crimes being committed in Bharat because there is no fear of the law. While West Bengal and other state governments may have legislated stricter laws to include the death penalty and life imprisonment for rape, the effort appears cosmetic because the problem does not lie in the existing laws. Recently, effective from July 1, three new criminal laws have been enacted: Bharatiya Nagarik Suraksha Sanhita, 2023, Bharatiya Nyaya Sanhita, 2023, and Bharatiya Sakshya Adhiniyam, 2023. These bills repeal the British-era Indian Penal Code, the Code of Criminal Procedure, and the Indian Evidence Act, respectively, and cater to all facets of the legal system to deter crime. To paraphrase Shakespeare, “The fault is not in our laws, dear reader, but in our implementation mechanisms.” Here, the investigating wing, the prosecution, and the judiciary have been found wanting. Something drastic is required to clean up the mess we find ourselves in.
We need fast-track courts, but this demand has been repeated ad nauseam, and while funds have been allocated for this purpose, there needs to be more to show on the ground. We also need timelines for investigating crimes and curb the practice of adjourning court cases on the flimsiest of grounds. We need separate investigation and prosecution cadres for speedy justice delivery, and we need our judiciary to be more sensitive to the needs of the times. Otherwise, the time is not far when the citizens will lose faith in Bharat’s justice delivery mechanisms and seek to take the law into their own hands. The case of the German lady Marianne Bachmeier is instructive.
Marianne’s daughter Anna had been raped and killed in 1980 by a man called Klaus Grabowski. When the case came up for trial in the District Court of Lübeck in 1981, Marianne walked up to the murderer of her daughter and shot him dead. This was vigilantism, but the debate and extensive media coverage it sparked in Germany led to Marianne only being charged with manslaughter and unlawful possession of arms. She was sentenced to six years and released on probation after serving three. If our courts dither on delivering justice, we too will have our Mariannes who will come forward and take justice for themselves. It is up to our judiciary to see that the citizens of Bharat are not forced to go on that path.
The author is Director, India Foundation.