India's Darkest Edge
|Sunil Khilnani||January 5th 2013|
Times of India
As the Delhi rape murder focusses collective attention on violence against women, demands for drastic punishment abound. At the public rallies to express support for the young woman while she clung on to life, and then to honour her memory, many of the placards were direct: 'Mandatory death penalty', 'Hang the rapist', 'Hang the lawâ€ shoot all rapists'.
It's an unsurprising response to an act so beastly, and it's echoed by many politicians, from Sushma Swaraj to Jayalalithaa. Yet, for reasons not just moral but bitterly practical, it's a dangerous reaction too. If we really want to reduce the incidence of rape across India, we need to draw different lessons from last month's horrific end to a young girl's lifeâ€ lessons which demand a far greater effort of us as a society and polity than passing a few new laws.
The body of evidence is decidedly mixed as to whether capital punishment deters individuals from committing heinous crimes any more than life sentences without the prospect of parole. But one thing that does deter crime and make societies safer is the proper, consistent functioning of the core elements of the rule of law. Today in India, many of those core elements are abysmal failures.
Take for instance the policing system. A functioning police system means not just a constabulary that keeps public spaces secure. It means also one whose officers dutifully register cases of rape and violence against women, and investigate such cases in ways that respect the victim while thoroughly and impartially gathering evidence.
But in a recent piece published in Bloomberg News, journalist Lisa Beyer drew attention to an extraordinary set of figures. According to UN statistics, Sweden has 63 rapes annually per 1,00,000 people, the UK 29, the US 27. India has 1.8. Such statistics make clear that India's rape problem begins well before the stage of sentencing and punishment. The vast majority of rape crimes against women are not reported.
Sometimes victims are held back by fear, shame, or mistrust of a police force whose own personnel are too often involved in such crimes themselvesâ€ sometimes, against the very victims who seek their intervention and protection. Other times, the police ask victims' families for money in return for filing a charge. And of the small percentage of rape charges that are registered, barely more than a quarter of the perpetrators are actually convicted.
Despotic and populist regimes gravitate to harsh and spectacular punishments. Modern democracies, committed to the pluralism and collision of values, seek to make an inherently uncertain social world more predictableâ€ and that means holding fast to the rule of law. There's an absurdity to home minister Sushilkumar Shinde collecting in his in-tray suggestions from all parties for changes in the existing laws relating to crimes against women, while saying nothing of about how he'd address vast, nationwide deficits in policing and the administration of justiceâ€ basic elements of the rule of law.
Today, India's policing and judicial apparatus primarily dispenses uncertainty and proliferates probabilities for injustice. Citizens with means and power buy their way out of criminal charges, whether of rape, murder or corruption. Citizens without means and power are often framed or wrongly convicted, leaving society no safer as the guilty remain free. To entrust such an arbitrary system with powers of capital punishment may satisfy an immediate, vengeful urge. But it's desperate satisfaction.
In every society, human rights and social imperatives will collide: security and liberty, equality and justice. To adjudicate between such competing claims, we need reliable methods of investigation, evidence and impartiality. But calls for the death penalty for rape ignore the blunt realities of our criminal justice apparatus, and the supreme likelihood that in the current fault-riddled system, the innocentâ€ the poor innocentâ€ might be put to death. Unlike life sentences, there will be no possibility of later reprieve (often made possible by increasing use of DNA testing and information sharing as an evidentiary tool).
Miscarriages of justice happen daily now, and miscarriages will be made in coming months as media attention rightly focusses on poor rates of disposal in rape cases. There will likely be a rush by the police and our overwhelmed, understaffed, fast-track courts to dispose of pending cases and improve their statistical percentagesâ€ often in conditions in which evidence-gathering in the immediate aftermath of the rape charge has been lax. Those judged guilty may simply be people who are proximate, with little ability to defend their legal rights.