The Justice J S Verma Commission's recommendation that death penalty cannot be the weapon to fend off rape as an offence under the Indian law, even in the -rarest of rare cases', is a sane suggestion that the Government and Parliament have to consider for the merit of it. Extending the logic, the panel's suggestion for enhancing the punishment to 20 years in prison too may not help beyond a point. What could help instead is reviving, revisiting and improving preventive mechanisms that have given way, owing to complex reasons in between.
If one were to go by the media expose of rape, rape-cum-murder, and murder for rape (like -murder for gain') seems be the commonest of crimes across the country, in these weeks after the gruesome rape and murder of a 23-year-old student of physiotherapy in Delhi. It should have been so earlier, too. The days-long street protests in the biting cold of the national Capital, by the youth of the country converging on the campuses of higher learning through the past decades, have made media coverage of the crime relevant and rampant.
It is this that made the reverberations from distant Delhi felt in every home in every corner of the country. The sense of security for their sisters and daughters on the streets of Delhi, which many of their parents and siblings may not have even seen, made the difference this time. Obviously, these crimes used to be committed in similar numbers at same regularity and frequency, earlier too. It may remain so in the future as well, death penalty or not.
It is not as if the current episode is the only one of its kind, or is the only one to have captured the nation's imagination, and hence attention. Like every generation has its larger cause and larger-than-life icons, concerns of the kind have always made themselves felt. In the fifties, the -Nanavati case' did it to a limited extent, given the relative reach of the media. It was more so in the case of the -Chopra Children case' in 1978, again in Delhi.
Unfortunately for the present generation, the living from that past, appearing on television talk shows seemed to have suffered a loss of memory - be it in terms of recalling the cruelty involved, or the punishment that was meted out without much loss of time in relative terms. The -bravery award' that many among the Delhi protestors were seeking to be instituted int he name of the -Delhi girl' of 2012 had been instituted as far back as the late Seventies. Named the -Sanjay and Geeta Chopra Award' it has since been awarded to a child or children, and the winners form part of the Republic Day parade each year - taken along with the soldiery and weaponry that the Nation is equally proud of. But little was mentioned of this by anyone on any television channel, thus exposing their ignorance, or loss of memory, or both.
Deterrent for the future
It has traditionally been argued that penalty under the law, including death sentence, are as much a deterrent for the future as they are reformative in the case of the offender(s) concerned. In the case of death penalty, the offender does not live to be reformed. Yet, in this era of greater media expose and access across the country, execution of death sentences should have become a greater deterrent for the living than may have been the case earlier. It needs to be studied if such is the case.
-Penal jurisprudence' even in the best of times is a difficult aspect of law, believed to be effective yet not so in actuality, when measured against the goals it may have set for itself. Better still, when the results are measured against the goals that the State, whether in historic times or at present, may have set for itself. It is this belief than the actuality that has made the -State' relevant as much as a social institution as it is a political entity.
With periodic and evolutionary modifications, penal jurisprudence and procedures have become as much an electoral yard-stick as it is a measure of societal peace and balance that the State sets to achieve. -Law and order' is as much a measure of the success of the elected political leadership in power at any given time, as it is in defining the character of the -State' - as being -anarchist' or otherwise, for instance. The thin dividing line, when breached, has not generally owed to the -failure of law and order' but for the -failure of the State structure' for a variety of reasons, of which it may be one of the many - but not the most critical of them, either.
There is nothing to indicate that enhanced punishment and strict enforcement has acted as a deterrent in every case. -Rape' is not the only offence indicated in this regard. From picking the other man's pocket for a few pennies to cold-blooded murder, of one or more, have all continued, possibly with increasing regularity and equal severity despite the existence of the State structure in one form or the other through generations and centuries, and the enforcement of its laws, severely or casually
-Rape' as an offence falls between the two, in terms of the physical assault on the person of the woman concerned, and the psychological deprivation that it entails. India is not the only country, nor Delhi the only city, where the lethality of their frequency made any difference, either way. Just as there is no proof that the incidence of any particular crime has decreased owing to the severity of the penalty, it cannot be said that the lowering of the maximum punishment for any offence under the law - including death sentence - has contributed to the increasing number of crimes of that particular category.
Improving the policing
Stricter enforcement however could make a difference. Here again, a difference needs to be made between fast-tracking post-offence investigations, trial and punishment on the one hand, and preventive aspects of law enforcement, on the other. Increasing the number of police men on the streets, for purposes other than ensuring the personal security of political leaders, could help, instead. In a country like India, this is becoming increasingly difficult, given ever-increasing problems such as population-explosion, increasing urbanisation, and conversely, the neglect of the rural backyard by the State, whether in terms of development or policing.
Simple as it may sound, policing in the country is not without its problems. The numbers do not add up in proportion to the duties that the police is expected to discharge. As is often being pointed out, an average police station in the country is expected to enforce a plethora of laws of all kinds - whose numbers are put upwards of 650, with every new addition every other month, if not every other week. The corruption-ridden and pollicisation of police recruitment and of the force as a whole, from top to bottom, has added to the woes of policing to the extent that the system has come to believe that the status quo is the only real and possible thing.
What more, when policemen are often charged with offences, including lock-up rape and lock-up murders that they are supposed to prevent, there is a also an imperative need for improving their training and periodic retraining. It is more so in the case of rape, where these policemen too have mothers and wives, sisters and daughters, back home. Something is truly rotten in the State of India - and there is no comfort in the thought that policemen the world over have similarly been tainted.
Much as the task looks daunting, these are not issues and problems that are insurmountable. A pro-active Judiciary that has set high standards for probity in public life, and has made the -Bommai verdict' and the -2-G case observations' the unchallenged and unaltered law of the land on specific issues of national concern, should move forward on the -Prakash Singh case' on policing, even more. A clean-up of the police recruitment and supervision, and fixing the plethora of legal lacuna that the political and policing bosses in the State, and the Centre, exploit to mutual benefit and consequent dependence, can be ended through a stroke of the pen at the level of the highest judiciary.
Matters like the CVC appointment and fixed term for top-most rung in the bureaucracy and policing are examples of how fertile imagination could help in defeating the spirit of the law, through a skewed interpretation of judicial verdicts, tendered at the highest level. If -contempt of court' proceedings alone would help, the Judiciary should not shy away from exercising that responsibility, either.
It is not about the Judiciary exercising the role of the Executive or the Legislature. It is all about the Judiciary ensuring the implementation of the constitutional interpretation of laws and procedures, until they are changed, blatantly favouring the political class. Then it would be in the public arena, and the voter has always shown that he still is the master, at the end of it all.
Non-State enforcers
Ironically, punishments that are in the State's statutes work as an effective and immediate deterrent when enforced at the hands of non-State actors like the Naxalites. Increasingly, non-State actors as -law-enforcers' have come to measure their acceptance accordingly, if only over the short and medium terms in their immediate areas of operation and influence.
It is another matter that the leaderships of such outfits and at various levels either start off as offenders themselves, or end up as being one - continuing to target individuals outside of the -State apparatus', which alone they claim to wage war against. Rape is often an offence that they are accused of, just as the security agencies of the State fighting them, too, are.
The solution thus may lie outside of the State system. This is so not only in the case of rape. In the advanced West, the US in particular has been witness to an increasing incidence of campus shoot-outs and public killing by the use of the gun, which has become a toy in the hands of those that are not yet -grown-up'. It is hoped that stricter regulation on the sale and use of guns to and by civilians could help.
Vagaries of law and enforcement
The vagaries of law and enforcement may have created a situation in which it would seem that there may be no real law that can ensure deterrence in possible offenders of the future, and for all time to come. No amount of street-protests could do the trick that way, nor would any amount of laws and punishment. Yet, faster enforcement of existing laws and stricter implementation of preventive measures, such as street-patrolling by policemen, could definitely help.
If nothing else, better policing could help eliminate the existing air of permissiveness and re-introduce a sense of security in women - and also in men - inside their homes and outside - than at present. That would be half the well crossed, and half the battle won. It would be closer to the -Ram rajya' that Gandhiji talked of, and dreamt of his India to be, but which it is not, still!
(The writer is a Senior Fellow at Observer Research Foundation)
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