India has seen many heinousrape cases in recent times. The Suzette Jordan rape case, Nirbhaya rape case, Delhi gang rape case, Shakti Mills rape case, Jisha rape case, Hathras gangrape case, Unnao rape case, Hyderabad rape case and now Kolkata’s Kar Medical College Hospital rape case, are some famous ones. Many rape cases are ignored by the media and at times by the police as well. According to National Crime Records Bureau (NCRB), about 85-90 rape cases takes place daily in India, and the conviction rate for rape is between 27 to 28 %. That is, nearly 9000, rapists, go scot free every year. But the pain, the injury and suffering and the trauma of a victim remains lifelong.
Time has come, to revisit the conviction procedures and punishments and effect a paradigm shift focused on victim compensation. For conviction in a criminal trial, it is necessary to prove not just the crime happened, but it is the accused, who committed the crime. Commission of the crime on the victim can be established by a proper medical examination or autopsy of victims’ body.
When it comes to proving that it’s the accused, who committed the crime, there are constraints, primarily, because the incompetence or corruption of investigating officials, some necessary procedures and processes are not followed enabling often the accused to escape liability. The accused is often financially and politically endowed and even employs expert lawyers, to secure acquittal.
As a civilized nation, the State needs to have empathy towards the victim and treat them as State guests. Every criminal court should have a proper and well equipped lounge with facilities for refreshments and other facilities for victims. If there could be lounge facilities at airports, for those who actually exploit the nation’s resources, why not for those who become victims, due to State’s failure and incompetence?
Any reformation, in law has to necessarily shift the focus primarily to the victim, first in proving that the crime has taken place and the alleged victim is the genuine victim of the crime.
Crimes, like rape and murder, are clear cases of failure of the State of it’s responsibility to keep its citizens safe. Who is the State? State consists of officials, who are individuals, who have taken the responsibility of carrying out the functions of the State, for the welfare and protection of its citizens. Citizens in turn have elected them or appointed them to these positions. Therefore, when the State Officials fail to prevent these crimes, these Officials have to be penalised. That is the essence of crime prevention.
Such penalisation has to be monetary. All such monetary penalties should go to compensate the victim of a crime in a manner that the victim’s future economic wants are met. So that the victim is free from all future economic wants, a compensation which will enable the victim to sustain a ‘liveable life’.
India needs a just and fair victim compensation system, which will not only ensure that the victim live a life of honour, dignity and economic freedom and the culprits are punished, which should include the victim’s compensation
There has to be a system to levy monetary penalty from every Official responsible for securing safety and security of citizens in the State. Higher the Official, higher should be the penalty, payable, not out of government funds but of their own incomes and savings
The law should begin with fixing a penalty for every heinous crime especially rape and rape with murder, beginning with, the Chief Minister, then the Home Minister, the law and order officials, beginning with the head of police like the DIG, DGP, and so on, down to every one responsible for citizen’s security.
The amount should be deposited in favour of the victim, and all the needs of the victim, should be met out of such funds. Once the perpetrator is found guilty, the perpetuator has to compensate the victim and these officials will get a refund or return of their contribution.
The system of ‘collective responsibility’ will minimise crimes. The standard and pace of investigation will be faster and efficient, because if the culprit escape liability, the officials, lose the penalty they paid. The rate of conviction will definitely improve, because there is a stake involved for the officials.
More importantly the victim gets compensated, once the occurrence of the crime is proved and the investigating officials will ensure that only genuine culprits are prosecuted, otherwise they stand to lose.
A system of ‘collective responsibility’ of State Officials, will be an effective reformation of criminal Law, in substance and in quality. The Police criminal nexus as well as the Politician criminal nexus, will cease to exist as the criminals will find it too expensive to maintain such relationships.
Cases will be decided promptly, incompetence and lapses in criminal investigation will become a thing of the past, because the officials will be able to recover their contribution only if the culprit is caught and found guilty, so the conviction rates will definitely go up. Finally, when the culprit is pronounced guilty, his primary liability will be to deposit the victim compensation or work towards contributing to the same in instalment etc.
This kind of ‘no fault liability’ exists as an extension of the principle of Respondent superior, as a corporate criminal liability, in motor accidents when the driver is a minor, the parents are held liable, under the fatal accidents Act, the occupier of a premises becomes liable for injuries caused to a person lawfully on the premises etc. It is the primary and basic duty of the State officials to secure the safety of its citizens and therefore extending the ‘no fault liability’ to State official is but a natural sequence of State’s duty to its citizens
(The writer is a Professor
of Law & An education
consultant)