'You can hardly sneeze without breaking law'

Debates have been raging over the last few weeks on what the anti-rape law should be in India. There have been debates on awarding the rapists death, stricter laws with severe punishment other than death such as castration etc.

I am happy with the law as it exists. The existing law is perfectly capable of taking care of any situation that may arise in this country. Making laws stringent is unreasonable. A stricter law than the existing one if it is merely for sake of satisfying public outcry –understandably by the youngsters on the streets of Delhi and elsewhere – is not the appropriate way of approaching a subject of this serious nature. As I said, the current law is fine, the only problem we have is in its implementation.

This is because of a few drawbacks. The first one is the reporting of the case itself, while the second is the sensitivity with which investigation should be carried out. Lack of sensitivity leads to slipshod investigation and a sloppy investigation leads to shoddy charge sheet. Then the case goes to court. The court is guilty of not being sensitive to the issue of not fast tracking or completing the case in time. The reasons may be manifold. One such is lack of judicial will to render judgments forthwith. Secondly, there can be pressure of work but that is not an excuse because output must be measured; and unless you do that, merely shouting that there is paucity of judges is of no use. Combined effect of all these gives rise to stale ending of what is a very good law.

Ultimately, the sufferer is the law. The victim is dissatisfied, the accused or criminal has already taken the law for a ride , and finally, this dissatisfaction builds up and respect for law diminishes. And, therefore, insecurity sets in. When one is insecure, he/she tends to be irrational as well. Therefore, we are seeing outcry for death or castration without any positive input to this demand. If you analyse death for example, if it is to be a deterrent, are we capable of even implementing it? Look at the tremendous pitfalls when you go for determining rarest of rare case. Each judge has his own order on such cases. The Supreme Court has done largest acquittals of rarest of rare cases. Also, there is no standardisation. When this is the scenario, you cannot possibly think merely by awarding death, the accused will be hanged. Therefore, death sentence in itself may not lead to execution. So why clamour for a law on which there is no consensus? Asking for a death sentence is like neither being here nor there. It is a popular demand but it is not coming out of a rational behaviour or a seasoned legislature.

Demand for castration

Now, let us come to demand for castration. Castration is itself of various types. Here you can violate the body of a man. But according to law, you cannot violate the body. Does castration mean you make a man impotent for rest of his life, or is it temporary, do you punch in serums, how long should castration last, how many times it should be done, are you going to send a man after castration back to jail or send him home, what is the study done on it so far, what is the experience of countries which have such a law? There are so many questions which need answers.

There is also demand for making stringent laws. I am not for it. I don’t know of any law which is stringent but which is not violated. Can somebody point out such a law? A law is made only because of violations of public morality and norm that takes place. Otherwise, there is no law to be made in the first place. There are so many laws in this country already. Every topic has a law. We are an over-legislated country. You can hardly sneeze without breaking law. More laws you make, more cases will build up; because laws are not implemented it leads to people losing faith in law.

A lot of things spoken about in the last few weeks are absolutely emotional which are built up over time by non-implementation of already good laws by both executive and judiciary.

(Justice Sodhi is a former judge of Delhi High Court.)-- As told to B S Arun