Legal experts in tangle over how to punish rapists

While death sentence is the peoples chorus, lawyers want to move cautiously

The country has erupted in protest against the gang rape case in Delhi. The chorus of awarding death sentence to the rapists is getting shrill every passing day.

All and sundry justify the emotive outburst of the country over the issue. But experts say since the rot runs deeper, India needs a systematic change of which increasing the quantum of punishment is a part.

According to experts, three things can deter potential rapists — time-bound investigation, fast track trial and harsh punishment.

“Currently, it takes years to complete trial in rape cases. The delay in investigation process and trial gets reflected in the conviction rate as well,” says women rights activist   Kumari.

“Even the trial in the Buddha Jayanti Park case, in which guards of the President were the accused, took nine years to complete. The delay also works in the advantage of the defence as witnesses turn hostile,” says Kumari.   

“As trial gets delayed, victims also come under social pressure to withdraw the case. Many a times, the family and the victim are forced to withdraw the case as there is pressure on the victim to get married, instead of fighting the case. So the country needs to fast track the trial of rape cases,” she adds.

The Delhi government has been forced to announce that it will form five fast track courts. But those working in the field of law call for overhauling the entire criminal justice system.
“Today, everybody is talking about fast track court so that case hearing can be done daily,” says senior Delhi High Court lawyer Geeta Luthra.

“The fact remains that even existing courts have to hear cases daily. That is how the law provides. But with the increasing number of cases, courts have no choice than adjourning them,” says Luthra.

A judge in a district court in Delhi, who doesn’t want to be named, says the government’s approach lacks vision. “One decision of the government taken in 1980s reflects the lack of vision on decision making.

The Negotiable Instruments Act was amended to make bouncing of cheques a criminal offence. While the decision was justified to maintain the sanctity of cheques among the mercantile community, they could not foresee the kind of burden it would bring on courts.”

“Cheque bounce cases crossed lakhs within a decade, but the government did not care
to take any consequential step to improve infrastructure to handle the same. While the number of cases continued to grow, the number of judges and courts remains almost the same,” he says.

While popular sentiment has been to give capital punishment to rapists, experts say it will in fact make the situation even more complex.

“Conviction of the accused is more important than taking the life of the accused. Such punishment would in fact create a situation where the rapist may kill the victim to conceal his identity. Even life imprisonment is a strict punishment, provided conviction is guaranteed,” says Ranjan Kumar.

Experts also point at legal bottleneck that would entail any such decision. “Capital punishment cases come with a caveat of establishing the act of the accused to rarest of the rare. Such cases are bound to get in the process of appeal before the High Court and then the Supreme Court,” says Luthra. “Also, the previous President granted pardon to some rapists who were awarded death sentence,” says Luthra.

While the recent gang rape has ignited the debate over the existing criminal justice system, sociological aspects of the crime cannot be overruled.

Puja Singh, an IT professional working in Noida, who is also the mother of a teenaged daughter, says, “People are talking about the recent case having hit the conscience of the society. But I don’t know how many men have stopped whistling and passing lewd remarks at women.”

“Forget about my school-going daughter, even middle-aged women like me are not spared from harassment. I can’t quote what I had to hear three days back at a grocery shop in a Noida market in daytime,” she says.

“Any change would be effective only if there is change in the mindset of society towards women, coupled with a just criminal justice system,” she adds.