A broken justice system

by December 16, 2019 0 comments

Increasingly, rape cases have seen an outpouring of public anger where the demand for death has reached a high pitch. Only reforms in the police and judicial systems can help

No matter what problems one may have with fairness of social media platforms like Twitter, posts here do make up for an interesting read and allow one to gauge the mood, if not of the country, definitely of the chattering class. Reactions to the rape and murder of a young veterinary doctor in Hyderabad were telling. Several Twitter users advocated not just death penalty but some even argued that the perpetrators be lynched. This kicked in a fevered discussion and even found its way into the Parliament where several MPs, across party lines, argued in favour of lynching of the rapists. Not a State-sanctioned death penalty but public lynching.

The irony, at a time when people are talking about bringing anti-lynching provisions into the law, was not lost on some. People’s anger stemmed, in no small part, due to the fact that December 2019 marks seven years of the horrific gang-rape in South Delhi, where a young physiotherapist was brutally assaulted and left for dead. The perpetrators of this horrific crime, despite being convicted and given the death penalty, have successfully eluded the sentence that was handed down to them. This is death of our conscience by using every available aspect of the law to delay their execution.

But isn’t this the right of every prisoner? The ability to use every possible means to prove his innocence or mitigate his sentence or even delay it, particularly when it is a matter of death? The only other major democracy that regularly executes prisoners is the US, which has several provisions in its statute books. Even the Governor of a State can issue a last-minute pardon to prisoners if appeals to the US Supreme Court fail. To deny them that would potentially mean convicting an innocent man or woman to death. In college and school debates, we have held discussions on justice delayed is justice denied but it is almost certain that a rushed judicial process is dangerous. It is gratifying that the Chief Justice of India, Sharad Arvind Bobde, realised this. While commenting on the murders of the four undertrials in the Hyderbad rape and murder case, he said, “Justice should not be revenge. I believe justice loses its character as justice if it becomes revenge.”

Those — including not just liberal ideologues in the country but also Right-wing thought leaders —  against death penalty have a simple argument: Who is a man to judge a crime? But how do you explain this in the Indian context, because at our core, we remain a deeply tribalistic society where the 18th and 21st centuries have had a troubled relationship. Anyone who has been 50 kilometres outside India’s major metropolitan areas, particularly the national Capital, will understand this. When crimes are committed in such a brutal manner and scale, there is an expectation of punishment matching the act. India is not Norway, where a mass murderer can be allowed to live and also fight the State for human rights. No, we are India, where we have a very specific set of criminal issues. We should not pretend to be a socially developed State.  Indeed, it can be argued that India’s social problems will likely get worse before they get better and the country will have little choice but to execute certain citizens.

We have to, however, take every single possible precautionary measure to prevent the possibility of an innocent man/woman going to the gallows. We cannot accept even one wrongful death sanctioned by the State. That said, when it is proven beyond any iota of doubt that an accused is guilty of those “rarest of rare” cases, where State-sanction is justified, then the executive and the judiciary both should ensure that the punishment is delivered swiftly. To keep a man or a woman on death row for an indefinite time is technically, cruelty. Of course, one may not sympathise with the murderers but constant appeals bouncing around the judiciary and the Union Home Ministry for years is plainly ridiculous. If someone has been sentenced to death for a heinous crime, the death penalty should not be handed out like candy by the lower judiciary. If the sentence has been confirmed by the Supreme Court, the Home Ministry and the President should get on with their jobs.

We have had Presidents who have delayed the signing of death warrants because it went against their conscience. Fair enough, but Presidents should come out and be vocal about it instead of delaying matters until the next head of the State assumes power.

This is a peculiar Indian issue — putting off tough decisions instead of acting on them.  It took a century to bring natural justice to the Ayodhya case. On top of that, the fate of the Delhi rapists is still hanging in the air. This is one major reason why there is so much pendency in courts. Forget about the failure of the bureaucracy and the executive to take decisions. Of course, there are other reasons, too, such as delay in filling judicial vacancies, which coupled with the lack of education and knowledge across the board, including that of the legal profession, has completely broken the criminal justice system in the country.

So when incidents like the Hyderabad rape case happen, there is public anger. The same sentiments run across among the local population when alleged child snatchers or cattle hustlers are lynched. We know how people get worked up over vigilantism.

Our justice system has failed us completely and needs to be revved up with meaningful implementation of processes. Increasingly, people have started taking matters into their own hands. If this isn’t a sign of a banana republic, no one really knows what is. It is, therefore, imperative for the executive and the judiciary to work towards fixing this.   While policing is a State subject, there needs to be a comprehensive federal re-evaluation of policing and the judiciary, just like the indirect taxation system was overhauled to the Goods and Services Tax system. But we cannot afford to bungle anymore. India needs police and judicial reforms now in sync with the severity of the emerging crime graph.

(Writer: Kushan Mitra; Courtesy: The Pioneer)

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