The media has recently been full of horror stories of young girls being kidnapped, gang raped, and then bludgeoned to death, hanged or otherwise eliminated by equally diabolical means. The sickening details are too gruesome to be repeated here. As usual, when faced with a difficult situation emperor Modi maintained a “stoic” silence (even Nero fiddled) probably hoping that the problem would just go away. It is difficult to tell whether his briefings are inadequate or that he is just plain insensitive. The former is highly unlikely given the well-oiled machinery of his party. When national and international uproar was too much to ignore he issued an impotent and meaningless statement. It is almost as if the emperor, approved of the atrocities particularly when the victims were from a minority community and more so when elected members of his own party were the perpetrators or expressed approval. He thereby demonstrated a lack of the trait essential in all distinguished leaders; that of providing moral leadership. He failed when the gau rakshaks ran amok, he failed when Christians were being attacked, when the Dalits were victimized; and now he has made a mockery of his own slogan of “beti bachao”.
Amendments to the criminal law eventually followed to assuage the revulsion expressed by all Indians with any semblance of humanity in them. It rapidly became obvious that these amendments were a cruel joke on all those innocent, defenceless girls who fell victim to party politics. The quantum of punishment for the rape of a girl below twelve years has been increased to a minimum jail term of twenty years, extending to death sentence. Two issues arise. The Centre for Child Law- National Law School of India University (CCL-NLSUI) in its study pointed out that in India birth records are woefully inadequate, hence the ossification test is relied upon. This never gives a specific figure but a range, for example, “between 12-14 years”; and judges usually add 2 years to the upper limit. Whereas the law considers 16 year olds to be minors, on what basis has the age of 12years been arrived at? Is a girl between the ages of 12 and 16 any less vulnerable? As for the death penalty, the Delhi High Court in dealing with a petition recently, asked the government what research it has done to establish the deterrent value of the death penalty. The truth is there is absolutely no scientific evidence of this. The Law Commission in its 262nd report, as well as various SC judgments have spoken in favour of its removal. The Delhi HC rightly pointed out that offenders will be less likely to let their victims live. Interestingly in January 2018, in response to a PIL seeking the death penalty for child rapists, when asked for a response by the SC the additional solicitor general Narasimha told the 3-judge bench headed by CJ Mishra that “the death penalty is not the answer for everything”. 3 months later this stand changed; either the January statement was flawed or the current stance was a result of political expediency.
In 95% cases the perpetrator is a member of the family or known to the victim and therefore the death penalty is likely to result in a reluctance to involve the police (National Crime Records Bureau). The Parliamentary Standing Committee on Home Affairs in its report in March concurred. The CCL-NLSUI study further demolished the myth of “special courts”. These cases were tried in ordinary courts specially “designated” for the day, with no waiting rooms or toilets in contravention of the POCSO Act. In 67% cases of child rape the survivors gave up on the trial or changed their statement. Any wonder that conviction rates are an abysmal 28%? (1.86% in Goa). The amendments are meaningless unless backed up by appropriate infrastructure.
Which brings us to the next section of the amendments, the timelines. These indicate a complete lack of understanding of, and a total disregard of whether a law was implementable. Investigation to be completed in 2 months, trial in 2 months, and appeals disposed off in six months. Given the police infrastructure, this is nothing more than a pipe dream. If the timelines are not adhered to, what then? We have seen the efficiency of the Consumer Forum which is supposed to dispose of cases in 90 days! Two years plus is par for the course. A look at the ground realities will explain why such time frames imposed on a dysfunctional system are so totally impractical.
The Unnao lies within the jurisdiction of the Maakhi police station. It has a staff of 33 for a population of 1.5 lakhs with 11 policemen on duty per lakh population. The UN mandated police-population ratio per lakh is 222. The CCTV camera which would have recorded the assault on the victims’ father had not been working for four months. The police refused to file an FIR; six policemen were suspended. There are no facilities to keep women. The single Bolero has an allocation of 200liters per month for an area of 250 sq. kilometers. To save power lights are switched off during the day; the generator has a fuel allocation of 20liters per month. As a result gadgets like computers and palm tops don’t work. The station has a case load of around 450 cases per year of which 20% are rape cases. The situation at Harinagar police station overseeing Kathua is no better.
Instead of enforcing the provisions of the Model Police Act 2016, and condemnation of party men, Modi chose the political route of amending criminal law. These amendments are impractical, and impossible to implement without providing adequate infrastructure. But then providing for vengeance is politically more appealing than improving the ordinary citizens’ access to justice with attention to the social parameters for deterrence.
(The writer is a founder member of the Voluntary Health Association of Goa.)
