THE brutal gang-rape and torture of “Nirbhaya”, a 23-year-old physiotherapy student in New Delhi on Dec 16 led to spontaneous countrywide demonstrations of a kind never seen before. The young woman died in a Singapore Hospital after fighting her injuries for 13 days.
The wrath is unlikely to die down soon. Two inquiries were instituted after the crime. The first, headed by a former chief justice of the Supreme Court Justice J.S. Verma, will review the laws relating to the crime of rape and suggest amendments.
Another headed by Justice Usha Mehra will investigate the crime to fix responsibility for the lapses and suggest ways to make the nation’s capital safe for women.
Statistics tell a sordid tale of official apathy. As many as 754 accused were arrested in the 635 cases reported to the police between January and November 2012, the highest in the past five years. Only one accused has been convicted, and investigations are proceeding against 348. Meanwhile, 403 are facing trial and two have been discharged.
As it happened, only two days before the ghastly crime which shook the nation, U.S. Misra, a former head of India’s prime investigating agency, the Central Bureau of Investigation, revealed that pressure had been brought to bear on him in politically sensitive cases including one involving the former chief minister of UP, Mayawati. She was alleged to have assets disproportionate to her known sources of income. “The fact remains, I won’t hide it, that when we investigate cases against prominent political leaders, there are some influences to keep the progress report pending or present it in a certain way.”
The CBI works under the Delhi Special Police Establishment Act, 1946. Since 1969, the government has issued a series of directions which require it to obtain the sanction of the government before initiating any inquiry into suspected wrongdoing by senior officials of the government, public-sector undertakings and nationalised banks.
This was in addition to Section 197 of the Criminal Procedure Code which requires such sanction for launching prosecutions. On Dec 18, 1997 the Supreme Court struck down the directives. Politicians cutting across party lines united to restore them in the act itself by amending it.
Subversion of the police force by politicians in power corrupts and demoralises it. Amendments to the law will not prevent crimes against women unless the law enforcers are sensitised and respect for women instilled in them. In the prevailing culture women are devalued and treated as ‘objects’. In large segments of society threats of violence lurk not too far beneath the surface. Films and TV channels foster them.
However, legislation can strengthen the movement for reform. A gang-rape is a grossly aggravated form of a crime heinous in itself. A conspiracy that reveals itself thus calls for a minimum sentence of life imprisonment. Consider the US Hate Crime Statistics Act, 1990 as a model for suitable adaptation. It mandates preparation of data about crimes including “forcible rape” for publication annually but without revealing the identity of the victim. Publicity and the shame it brings are good deterrents. The law should provide for publication in the dailies of the city in which the rape took place and also where the perpetrators come from, after their conviction of the offence; if not, indeed, after the charges are framed.
The Police Act, 1861 cries out for reform. All works on British law devote an entire section to the police because on its probity and independence rests the rule of law, the very basis for democratic constitutional government. In contrast, Indian works on constitutional law are content to discuss the respective powers of the centre and the states over the police. There is a wholly mistaken notion about the status of the police force and the powers of the home minister.
The police are a creature of statute. Like any statutory body they are not amenable to any executive directive unless that statute itself sanctions it. Lord Denning ruled: “I hold it to be the duty of the commissioner of police, as it is of every chief constable, to enforce the law of the land”.
The policeman is certainly “not the servant of anyone, save of the law itself”. No minister can order him to arrest or not to arrest anyone.
Justice J. L. Kapur of the Supreme Court of India, formerly of the Lahore Bar, sat on a commission of inquiry to probe into the conspiracy to assassinate Gandhi. His report, as quoted in a previous article on these pages, said: “In the opinion of the commission, although a home minister is in charge of the police and police administration and answerable to parliament about it still he has no power to direct the police how they should exercise their statutory powers, duties or discretion.
“Both under the Criminal Procedure Code and under the Bombay City Police Act the statutory duty of the police is both to prevent crime and bring criminals to justice. Therefore, the minister can and could only pass on the information of the commission of an offence to the police to investigate.…”
The mass transfers of police officials on changes of government in most states reveal a deep disconnect between the law and its actual subversion. A police force subverted is a police force corrupted. What protection can anyone expect from it, man or woman?
The writer is an author and a lawyer based in Mumbai.