Friday, 11 July 2014

Police & Judicial Reforms First Priority - Need for Surgeon's Precision while Amending the Anti Rape Law



Written and Oral Submissions by MANUSHI before the Justice Verma Commission
The countrywide anger and protest following the brutal gang rape of a 23 year old student has galvanized public opinion as never before. Even though the ostensible demand of protesters is to make the rape law more stringent, the real intent is to express "No Confidence" in the machinery of governance, especially the political class, police and law courts. That is why protests refuse to die down despite numerous pious announcements by the highest functionaries of the state- from the P.M to the Home Minister to the Chief Minister. True to character, the government has come up with a series of knee-jerk responses. These include appointing a Commission to suggest changes in rape laws in 30 days, a Special Task Force of all the big wigs in Delhi Government, proposal for chemical or physical castration of rapists, death penalty for all cases of aggravated sexual assault, mandatory registration of F.I.R.s in every complaint of sexual violence, special fast track courts, and gender sensitization programs for the police and so on.

Changes urgently needed in existing rape law: The most basic improvement required in the anti-rape legislation is to get rid of antiquated definition of rape as "outraging of modesty" of a woman. This needs to be replaced with "assault on the bodily integrity of a woman". The second important change required is to treat rape by security forces at par with custodial rape meriting stricter punishment than meted out to civilians because their job is to protect citizens, not violate them. However, this amendment should include safeguards against malafide complaints and misuse of law to weaken anti-terror operations.

However, many of the demands being made by the anti-rape protestors as well as those proposed by the UPA government have come as knee jerk reactions and are potentially harmful

Demand for stringent law: A common demand from both public and media is that the rape law should be made more "stringent". This overlooks the fact that in India, the gap between what the law prescribes and what actually happens in practice needs to be addressed as the first priority. When a law fails to deliver what it promises, instead of undertaking a cool headed honest review of what is wrong with the law and its implementation, the tendency in India is to assume that the law is not stringent enough, that it has too many loopholes which enable the culprits to escape punishment.

Unfortunately, most of those demanding changes in law to make it more draconian, including most T.V. anchors at the forefront of this mass hysteria, have not read the existing law.The rape law was amended in 1983 due to pressure from women's organizations following the rape of a young woman named Mathura in a police station of Hyderabad. It provides for a minimum 7 year punishment which may extend to life imprisonment. It also has special provisions for custodial rape including a minimum of 10 years in jail since Mathura was raped while in police custody. In case of brutal rape leading to murder, our law already provides for death sentence. Thus the existing law can hardly be called "lenient".

Proposal to chemically or physically castrate men indicted of rape: This has come from leading national parties, including the ruling party in the Centre. Such a punishment assumes that rape is all about uncontrollable sexual urge or certain men being oversexed. Apart from being an instrument of striking terror with a view to subjugate women, rape is often accompanied by brutal forms of violence of the kind the 23 year old gang rape victim went through. Rods were shoved into her vagina and her intestines pulled out. It is common for rapists to shove stones and other pain giving objects inside a woman with our without penetration of the rapists' penis. These pathologies and brutal acts will not be controlled by castration. In fact, there is evidence that men with performance anxieties are usually more brutal.

Demand that police be trained to be gender sensitive: Our colonial minded police are no doubt very gender insensitive and have a disgraceful track record of handling cases of violence against women. But it is not as if they treat men any better as is illustrated by examples below. Police are trained to understand only two codes: a bribe from below or a kick from above. Whether the hand that bribes or the one who gets the kick delivered is that of a woman, a gangster or a terrorist makes little difference to the police. It is well known that the likes of Dawood Ibrahim exercise enormous influence on the police and can make it dance to its tunes. Our police have no hesitation in harassing and brutalizing men. Women are no doubt doubly vulnerable but only if they are not well connected. Ask the poor slum dwellers, street vendors, rickshaw pullers, auto rickshaw drivers and other vulnerable groups who survive on the mercy of the police, whether the men among them have any special advantage vis a vis the police.

Compulsory registration of sex crime complaints: Another common refrain is that the police must be obligated by law to register an F.I.R on the basis of every complaint of rape or sexual harassment that comes to them and that rape should be made a non-bailable offence in addition to mandating longer and harsher prison terms.  It has also been suggested that women should be able to make online complaints of rape and it should be mandatory for the police to register instant FIRs on the basis of such online allegations.

It is also being demanded that the burden of proof in rape cases be shifted to the accused, even though in most other criminal cases, including murder, the burden of proof is on the complainant. Tamil Nadu Chief Minister Jayalalitha has set a high benchmark by announcing a 13 point plan of action for her state which includes amendment to the Goonda Act to include sexual offenders. This law provides preventive jail for one year, with no scope for bail. To this list, Sunitha Krishnan, one of the most courageous and inspirational gang rape survivors has added another important demand that once the lower court has convicted a man of rape, appeal to the High Court or Supreme Court should not be permissible at all.

When we demand that every complaint must result in an instant F.I.R and that bail to alleged rapists be denied as a rule, we are opening the flood gates for fraudulent cases being registered by the police to extort money and other vested interests to browbeat those who stand in their way. If all those accused of sexual violence are going to be booked under the Goonda Act and kept in preventive detention for one year without the possibility of bail, as announced by chief minister Jayalalitha, there is nothing to stop extensive abuse of law given the lawless police we are saddled with. Let us not forget the kind of attacks R.T.I and other political activists have faced from police and politicians for exposing their criminal acts. (As an illustrative example see Indian Express report dated 3/1/13: http://www.indianexpress.com/news/bengal-crusader-against--rape--pays-with-his-life-because-of-police-harassment/1053560/)

The problem is not confined to police reluctance to register cases of genuine victims but also its increasing propensity to blackmail innocents by registering false cases against them as an instrument of extortion or implicate genuine victims in patently bogus counter cases in order to force them into withdrawing their complaints against powerful persons. This happens even in first world countries which boast of efficient police and law courts. The manner in which WilkileaksgeniusJulianAssange has been hounded by the US and European countries on what appears like a trumped up rape charge after adult consensual sex, points to the ease with which false criminal cases can be used to destroy lives, especially if you shift the burden of proof on the accused, as is being demanded.

This danger is even more acute in our country where we are saddled with a totally lawless police. I am myself saddled with the burden of facing a whole array of false counter cases on account of my policy reform work for street vendors which brought MANUSHI, into conflict with political mafias who prey on the illegal status of street hawkers. Every time I or other MANUSHI volunteers were subjected to murderous attacks from politically patronized gangsters, the goons succeeded in filing fake counter cases against me and other MANUSHI members involving serious criminal charges-- including attempt to murder, Section 420, impersonation, extortion and fraud-- with a view to forcing us to abandonour work.(Read http://www.manushi.in/articles.php?articleId=1586&ptype=campaigns)

One of our most active and valuable members Mehboob, has also been implicated in a bogus "attempt to rape" case through the use of call girls who he had never seen or met before. They just came to his shop and started beating him with chappals alleging that he had tried raping them. When one of the men named Sanjay who knew those call girls intervened to save Mehboob, he was attacked by local goons with iron rods and bricks which resulted in serious head and other injuries. He could have died from the injuries but the police refused to file an F.I.R. on the basis of his complaint though they quickly entertained the complaint of the two women hired by local goons to implicate Mehboob in a bogus "attempt to rape" case. This happened in 2008. Five years down, Manushi is still saddled with defending Mehboob in this false case. If there was no provision for bail, this poor street vendor would have rotted in jail for endless years.

The horror story does not end with Mehboob. When Sanjay insisted with the police that they file an F.I.R. against local goons who caused him serious injuries for defending Mehboob against false charges, the S.H.O. of KotlaMubarakpur police station arrested 5 adult male members of Sanjay's family, locked them up in the thana and threatened Sanjay that if he did not withdraw his complaint, all of them would be locked up and sent to jail under the Goonda Act. Those arrested included the old bed-ridden grandfather of Sanjay, plus his father who is a Class IV employee working as a maali in a government department. We took up this case to the Deputy Commissioner but got no help. Therefore, we had no choice but to advise Sanjay to withdraw his case. These cases, filed in 2008, have gone on and on without an end in sight. They have caused us endless grief, humiliation, harassment and a waste of time on addition to financial burden.

This is not a solitary case. Implicating innocents in false cases is a well-established practice of the police. The Muslim community is particularly vulnerable on account of the popular stereotype of their being pro-Pakistan and pro-terrorism. But even well-educated Hindus from respectable families are not spared wherever and whenever the police decide to hold them to ransom. For an account of how my brother became a random target of extortion by the police, read  "Police Can't Be Women Friendly without BeingCitizen Friendly".

In short, you cannot make our police "gender sensitive" by subjecting them to special training sessions or sermons unless they are made "citizen sensitive". This too doesn't happen by subjecting them to occasional sermons. It happens only by institutionalizing principles of accountability and transparency in the very structure of the police - including better recruitment criteria, and creating incentives for honest work.

In other words, the existing failure of the police to act honestly, to follow due diligence in investigating whether a complaint merits filing an F.I.R. cannot be set right by doing away with the need for honest investigation altogether. Let us not forget, even Rahul Gandhi was implicated in a gang rape case by some woman in his constituency. It was later pronounced as a fabrication. Not everybody has Rahul Gandhi's clout to escape being locked up in jail without bail.

Shifting the burden of proof: The demand that the burden of proof should be shifted to the accused appears reasonable in cases of brutal violence is also fraught with danger. It is noteworthy that under pressure from women's organizations in case of dowry related violence, the burden of proof has already been shifted to the accused and the bail made extremely difficult. Can anyone claim that dowry giving and receiving has stopped or that incidents of domestic violence on account of dowry demands have come down? Can we claim that all genuine victims have been dealt with fairly by the police and law courts as a result of stringent laws in favour of alleged victims of domestic violence?

On the contrary, we have plentiful evidence of gross misuse of law by the police, lawyers and their unscrupulous clients to implicate innocent families in false cases with a view of extorting money from them. Even in terrorism related arrests, the police have consistently misused provisions that shift the burden of proof as well as denial of bail to the accused. In the process, lives of numerous innocents have been destroyed while real terrorists roam free. If the police have failed to use these provisions responsibly in cases involving national security, why do we put so much faith in their ability to use them with integrity in cases of rape? There is no substitute for honest, professionally competent investigations by law enforcement agencies.

Denying provision for appeal to higher courts: The most dangerous of all is the demand that once a man is convicted by the lower courts, there should be no provision for appeal to the High Court or the Supreme Court. This is no doubt proposed with good intent by people who have seen how rapists go scot free by dragging the case for years on end through adjournments and appeals to higher courts which also function at a snail speed. During that time, the rapists roam free on bail and often intimidate the victims into turning hostile against themselves

Once again, the dysfunctionality and tardiness of our judicial system cannot be set right by doing away with the right to appeal. By that logic, why not do away with courts altogether and let the police deliver instant justice? The right to appeal is available even to perpetrators of terrorist attacks as well as those who indulge in mass murder. Those guilty of communal massacres are also protected under this constitutional right. To demand that this right be denied only to those who commit atrocities on women is to play with fire. When brushing aside of constitutional rights and due process gains legitimacy, it has a way of spreading into all areas like a virus and eat into the very vitals of democracy.

Marriage to rapist cannot be treated as rehabilitation measure: Police and courts have often pushed for such a settlement as a measure to "rehabilitate" the raped woman. Therefore, the message needs to go down strong and clear that forcing marriage between the two parties amounts to legitimizing rape.

However, what if a woman demands this "relief"? We need to take into account all those cases as well where the woman files a rape case as a retaliation measure against a man who refuses to marry her after a long standing sexual and/or a live in relationship. Several such cases are reported routinely in the press. I have personally been approached by a half a dozen such women but declined to take up those cases. We have also witnessed the ugly drama played out in the media, including on TV channels, by a young woman who dragged famous film director MadhurBhandarkar to court pressing rape charges when by her own account she had sexual relations with him over a long period in return for his promise to cast her as a heroine in one of his films. This in my view is a patent misuse of law. A woman who enters into pre-marital sex with a man or offers a sex bribe in return for a favour, ought to take full responsibility for her actions, instead of playing victim, if the man changes his mind and terminates the relationship or fails to deliver the promised reward as did Bhandarkar. This may amount to "cheating" but certainly not rape.

Demand that "marital rape" be included in the anti-rape law: Mahatma Gandhi was among the first in modern times to assert that a woman has the right to say "No" even to her husband. This was much before feminists came to demand that rape in marriage be treated as a serious offence. I strongly support the Gandhi's position but including marital rape as a punishable offence is a very tricky proposition. How does a man prove that the sexual relation on a particular day or night with his wife was with her consent? Have her sign an affidavit every time they go to bed together? The law against domestic violence already gives strong protection to a woman who alleges "cruelty" by husband with or without rape. This too has been subject to wide spread misuse because of insufficient safeguards against false charges. Adding "marital rape" is likewise fraught with danger unless strong safeguards are put in place against baseless, malafide complaints.

Selective fast track courts: The demand for special fast track courts in cases of rape comes from an unrealistic faith in "special measures". In a country where national security related crimes, including open and shut cases, take decades despite all the attendant "special" procedures, including suspension of due process requirements, to expect "special courts" for rape to act as a magic wand is to live in cloud cuckoo-land. Just as special police stations for women cannot perform miracles when the regular police stations are citadels of crime and corruption, so also "special courts" become mere tokens if regular courts are dysfunctional and court procedures are not thoroughly overhauled. In any case, there is no "fast track" provision in the High Court or Supreme Court. Our courts have not only failed rape victims, they have also failed victims of caste and communal massacres, hate crimes, victims of criminal mafias, as also those involved in simple property disputes.

There is much to be learnt from the fate of special dedicated courts set up in 1986-7 to deal with monetary compensation and rehabilitation of victims of the Bhopal Gas Tragedy of 1984. This case attracted widespread national and international attention. In full glare of national international media, first the Government of India played foul by making an infamous settlement with the Union Carbide in return for payoffs. Then it played foul in disbursing the pitiful compensation it announced. When gas victims sought the intervention of the Supreme Court, special courts were set up to deliver the measly compensation to be given to families of those who died of the poisonous gas as well as to those who developed serious illnesses.

The delays, deliberate hurdles, harassment and humiliation suffered by those who went to claim the money due to them was no less than those inflicted in regular courts. Hardly anyone got the full promised amount. Families had to accept far lower amounts than officially sanctioned and even from that they had to give cuts in order for payment to be processed. This when some of our best NGOs worked tirelessly to help victims make claims through "special dedicated courts". They brought the corruption and harassment suffered by victims to the notice of the Supreme Court. Yet the scam continued unchecked. It has been 28 years since the tragedy. Ask what the victim families think of these special courts!

Closer home, in February 2010, in response to a PIL by MANUSHI, the Delhi High Court passed a historic order banning the lawless confiscation and destruction of cycle rickshaws by the municipal agencies and police. This order was endorsed by the Supreme Court. When both these agencies continued flouting the High Court and Supreme Court judgments, the Delhi High Court set up a dedicated special court in June 2012 to investigate complaints of rickshaw owners whose vehicles had been confiscated involving contempt of court. Till date, the special dedicated court has been able to cross examine only 8 complainants! The procedure for cross examination remains as farcical as it is in regular courts. To add insult to injury, all of us complainants and victims are being treated as if we are in the dock. The entire attempt of lawyers representing government agencies is to prove us liars who brought in false complaints. All this is happening even though two of the best judges of the High Court, Justices Ravindra Bhatt and Murlidharan are monitoring the case.

Merely naming a particular court "special" cannot work as a magic wand to cure our colonial minded legal system of its deeply entrenched incompetence, inefficiency and deviousness.

Demand for special courts has come from many other disadvantaged groups- environmentalists, anti-corruption crusaders, victims of domestic violence, as well as those routinely displaced from their lands and villages through arbitrary land acquisition laws. The list of those demanding special fast track courts will keep growing if the entire judicial system is not reworked thoroughly. The soul destroying, torturous and corruption friendly court procedures require fixing for all cases, not just for those crimes that become hot issues thanks to high profile media coverage.

Need for accountability of lawyers: Among many other judicial reforms, one of the most urgently required measures is to clarify the role of lawyers as officers of the court. At present, it is taken for granted that the job of a lawyer is to defend his/her client and save the person from punishment, no matter what the crime and no matter how foul the measures used for the purpose. This makes a total mockery of the entire judicial system and renders it incapable of delivering justice. Those who can afford to hire competent lawyers can get away with murder, rape or worse. This is because giving false evidence and browbeating vulnerable victims through hostile and devious forms of cross-examination to mislead the court in practice is never treated as unethical. Perjury and false testimonies are almost never punished under our judicial system.

The job of a lawyer is to assist the court in arriving at the truth, in ensuring that no innocent gets punished, no wrong doer escapes the punitive action he deserves, and that the punishment is in proportion to the crime. Lawyers who encourage their clients to give false testimonies to browbeat the system should be dealt with severely.

Police and judicial reform first priority: In short, the situation calls for far reaching police and judicial reforms, not knee-jerk tokenisms. The rape law certainly requires improvements. But simply providing for "more stringent" punishment will achieve nothing except enhance the scope of abuse, if the police as an institution are not thoroughly overhauled to make it a fit instrument for ensuring safety of life and liberty of all citizens. Likewise, without simplifying court procedures, making laws more rational and investing heavily in improving the quality and proportion of judges and making access to justice more affordable, a few fast track courts here and there will inevitably rot out. In any case, if the police have messed up the evidence at the stage of primary investigation, what will fast tracking of the case achieve?

We have all witnessed the crude and mischievous ways in which the police used lathis, tear gas and false cases against people to break the morale of anti-rape protestors at India Gate in full view of T.V cameras. This was proven when some of the young men arrested for allegedly causing the death of a policeman were acquitted by the court because they could prove that at the time the police claimed they were stoning policemen at India Gate they were travelling in Delhi's Metro. This was corroborated by the CCTV footage provided by the Metro. The policeman who collapsed during the protests suffered a heart attack, he did not die on account of injuries caused by protestors as the police have falsely alleged. Can we afford to put AK-47s in the hands of those who routinely use their lathis to tyrannize people?

Finally, when demanding changes in legislation or legal procedures, let us not think of men only as potential rapists or wife-beaters. We are all connected to men in intimate caring relationships- as brothers, fathers, uncles, sons, nephews, lovers, husbands, friends, colleagues and caring neighbours. My pain and grief at the life of my brother or nephew being ruined on account of being implicated in false cases is no less than when I am directly victimized by our corrupt, criminalized police and dysfunctional judicial system. 

In short, we cannot let our concern for women victims of domestic or sexual violence blind us to the possibility of further damage by the already corroded police and judicial system of our country, leave alone blind us to the dangers of selectively depriving people of their constitutional rights. We need a surgeon's precision while amending the anti-rape law, not a butcher's hatchet. All cases deserve speedy trials without sacrificing due process. If so many countries in the world can do it, why can't we?

Immediate measures needed for improving police & judicial performance:
While the task of refashioning our police and judicial system requires many far reaching systemic reforms-something that can't be done in haste with unrealistic deadlines --the following immediate measures can kick start the process without delay:

  • Speedy implementation of the Supreme Court directives regarding police reforms. Contempt of Court proceedings against all those chief ministers, home secretaries, chief secretaries of state governments who fail to implement these modest guidelines.
  • Installation of CCTV cameras in all police stations to monitor how the police handle complainants and their work style.
  • Mandatory video recording of all complaints so that the police don't get a chance to distort the complainant's testimony. This should be made available to the court instead of shoddily written, incomprehensible F.I.Rs that are usually submitted to the court.
  • Institutionalised mechanisms for involving local communities in policing their neighbourhoods in coordination with the police.
  • Independent audit of the functioning of police stations every three months by qualified professionals.
  • Mandatory recording of court proceedings to monitor whether lawyers and judges do justice to their jobs.
  • Encouraging petitioners to argue their own case to reduce the dependence on lawyers.
  • Providing dedicated time to petitioners to present their case in person even when they are being represented by a lawyer, especially in cases of rape.
  • Restrictions on adjournments so that the case is not allowed to drag on endlessly.
  • Holding district magistrates under whose charge the police functions, and the Lt Governor in the case of Delhi, accountable for police lapses.

The following non police measures which can be implemented with speed can play a vital role in making our cities safe
  • Well lighted streets all over the city
  • Safe footpaths for pedestrians
  • Keep cities alive at night by creating citizen friendly public spaces with benches, vendor kiosks, night stalls, spaces for performances for local artists to keep the city alive at night. Deserted areas are more crime prone. Cities are safe only when they are walking friendly and ordinary families come out in the evenings to keep the streets and public spaces alive.
  • Massive investments in adequate and safe public transport-such as buses- in all our towns and cities as well as for connecting urban centres to villages equipped with CCTV cameras and other technological devices to monitor their movements.
At the same time, the government should facilitate a nationwide debate on the recommendations of various commissions on police reforms as well as proposals for judicial reforms suggested thus far in order to seek inputs from a range of concerned citizens as well as best available experts on measures needed to make our police and our law courts worthy of a democracy. This debate will be taken seriously only if the government announces clear time frame and mechanisms for implementing the systemic reforms arrived at by way of a national consensus.

Madhu Kishwar

Madhu Kishwar
इक उम्र असर होने तक… … … … … … … … … … … … … … … … … … … … … … …اک عمر اثر ہونے تک

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