Justice (Retd.) Kamleshwar Nath
INCIDENCES of rape are visibly increasing in India despite protests and there are no clear official steps to remedy the evil. According to media reports, registered cases of rape increased from 2487 in 1971 to 24206 in 2011. Same year Delhi registered 572 cases, West Bengal 2363, U.P. 2042, Maharashtra 1701 and so on.
On 16th December 2012 Delhi gang rape and torture of 23-year woman by 6 men with simultaneous attack on her male defender in a running bus at night followed by dumping them on wayside has shocked the nation. Vociferous protests by young boys and girls for several days throughout Delhi and in other important cities of the country, demanding death penalty and other deterrent action against rapists, followed by use of police force on demonstrators has forced the Government to appoint a committee headed by former CJI, JS Verma to recommend improvement in the laws.
Offence of rape should not be mixed up with its motive/reason. In criminal jurisprudence, motive is irrelevant in determining culpability. It is universally recognised that rape is a heinous/barbarous act; gang rape is the most horrendous criminal act. Its evil consequences accrue throughout the life of the victim: Mental and moral shock, loss of self-confidence in coping up with difficult situations, potentiality of forced motherhood, constant fear and so on; it could be a ‘living death’.
Quite a few blame corrupt and criminal members of our law-making bodies who impede and influence investigation; people demand withdrawal of their protection security as it is certainly far in excess of perceived requirements (presently, on average, a VIP has 3 police personnel while 761 citizens have only 1 policeman to provide security).
Our political class has persistently struck down the demand for repeal of Section 8(4) of Representation of People Act 1951, which is a haven for criminals in Legislatures and Parliament with automatic stay of conviction for crimes and disqualification from the House ad infinitum. They refuse to enact a law which will prevent them from contesting elections; an effective Lokpal institution is going to meet the same fate.
The problem calls for immediate remedial action in addition to long term measures. Following punishments seem imperative immediately:
Provide for Death Penalty of the person who commits rape in following cases:
(a) ‘Gang Rape’ which means Rape by two or more persons in the course of same transaction, or by one person in furtherance of common intention of 2 or more persons. (short of murder, no crime is as heinous as ‘gang rape’ – indeed in the Delhi gang rape case, two of the rapists have voluntarily prayed to be hanged for the crime);
(b) Rape of girl whose age is 12 years or less (Indian Penal Code attributes total innocence to child below 7 years or to a child below 12 years if she is unable to understand the nature of nature the act; to exploit child’s innocence exhibits total moral perversion);
(c) Rape coupled with murder of victim or of person who tries to defend the victim;
(d) Rape after intoxicating the woman (infusing intoxication to her for committing the crime to deprive her of cognitive faculties or power to resist betrays depravity of the rapist – India which has avowedly a policy of Prohibition, must not recognise intoxication as a defence against commission of any crime);
(e) Rape by Public Servant of woman in his care or custody.
In all other varieties of rape, the person who commits rape should be punished with –
(a) Castration (crude analogy is ‘forfeiture of murder weapon of convicted murderer’! Life-time evil consequences of rape can only be matched by life-time deprivation of capacity to have sex; this deprivation is sure to act as the most effective deterrent against rape – Don’t say it is against Human Rights : Is rape a Human right?);
(b) Imprisonment which may be rigorous and extend to ten years, or otherwise imprisonment for life;
(c) Liability to pay Compensation to victims.
Incidental measures regarding cases –
(a) Delete Sections 85 and 86 of I.P.C. for all crimes, or in any case in respect of offence of rape;
(b) No mercy petition against punishment for rape shall be permissible;
(c) Prosecution for rape shall not be withdrawn.
Creation of adequate Infrastructure –
(a) Sufficient number of Fast Track Courts in all Districts for trial of cases of heinous crimes against women should be created. Day-to-day hearings should be conducted; and case should be decided within 2 months. Judges holding trial in rape cases must sit tight over the proceedings and exercise their discretionary powers under CrPC and Evidence Act to ensure that no material evidence is left out. Quarterly Returns of institution and disposal of such cases should be submitted to High Court through District Judge for monitoring performance. These Returns should be available for information of citizens under Right to Information Act 2005 on the normal fee of Rs 10/- prescribed by the Act.
(b) Victim of rape and eye witnesses should be given police protection till the case is decided.
(c) Proceedings of trial court must not be stayed in connection with any Appeal or Revision.
(d) If at the end of a trial for rape it is found that the accusation was wilfully false, the Court should be conferred with power by suitable amendment in CrPC to take cognizance and punish the woman like the power under Section 340 CrPC to punish a witness who gives false evidence in Court. This will control misuse of law and process by women.
(e) Performance of Public Prosecutors should be monitored by Director of Prosecutions who should be an officer on Deputation from amongst senior members of State Higher Judicial Service.
(f) Cases of Rape must invariably be registered u/s 154 Cr.P.C and copy of the FIR must be sent at once to the Magistrate having jurisdiction u/s 157 of Cr.P.C. If the police officer chooses not to register FIR, he must report to Superintendent of Police who shall take departmental action against the police officer if the refusal by him is found to be unjustified. The offence should be investigated by a Police Officer not below the rank of Deputy Superintendent of Police; other offences against women should be investigated by a police officer not below the rank of Inspector of Police. The progress of investigations should be reported to Superintendent of Police. The jurisdictional Magistrate shall be competent to ensure speed of investigation without issuing directions in the manner in which investigation may be made.
Long term reforms –
(a) Deployment of police personnel by foot/vehicular patrolling throughout night specially in areas of women activity. At present the Governments in Delhi – Central or State – are more keen to ensure security of the powers that be viz., MPs, MLAs and bureaucrats in high positions than common man. Consider, water cannon assault, despite cold winter, by security personnel on peaceful demonstrators at the residence of Delhi CM Sheila Dikshit. CM betrayed insensitivity to protests by failing either to appear personally or to invite a few demonstrators inside her residence to listen to their agony and offer some consolation. “He jests at wounds who felt not a scar” (Shakespeare). Demand of several demonstrators that security cover of these public men should be withdrawn is quite understandable.
(b) Superior police officers should check whether the concerned police patrol party is performing its duties fully; defaulters should be taken to task. The patrol party must help and protect women victims and their helpers against culprits.
(c) Fill vacancies in police force, reported to be 4.20 lakhs out of sanctioned strength of 20.80 lakhs. Vacancies should be filled on merit, not on reservations based on caste SC, ST, OBC or minority bias because that is bound to demoralise the most important law enforcement machinery.
(d) Fill vacancies in courts – Subordinate as well as High Court (almost 50 per cent of posts of High Court Judges are vacant).
(e) Police Reforms demanded in all forums, including the Supreme Court, for eradication of political influence and interference in investigation process should be implemented fast.
(f) Censor Boards should strictly enforce norms of morality in screening Films and TV Serials or TV Games, and delete portions which portray sexual or promiscuous acts; and strong action should be taken against defaulters. Advertisements promoting such acts must be banned.
(g) It is essential to infuse morality amongst the people to respect women and enough self-confidence to stand up against spot crimes against women. Education in good morals, coupled with deprecation of bad morals, must be infused in children of primary schools; this must, of course, continue till university stage.
(h) Discipline and proper dress are no less important. Every man and woman has an ‘aura’ around the body; exposure coupled with proximity causes the auras to intermix. This may lead to questionable effects.
(i) Repeal Section 8(4) of Representation of People Act 1951.
(j) Enact a new law to prevent persons charged by a Court of Law for specified heinous crimes, including rape, from contesting any election in the country – Parliament, Legislatures, Local Bodies and bodies elected in rural areas.
Above all the recommendations/report of Justice J.S.Verma Committee should be made public as soon as it is submitted to Central Government in the interests of Transparency and Accountability to enable people to press upon the Government to accept the recommendations and enact appropriate laws without delay, otherwise progressive improvements will stay in cold storage as in several earlier Commissions’ Reports.
(The writer is retired Judge, Allahabad High Court, Vice-chairman, CAT and UP Lokayukta, State of Karnataka).
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