OUR criminal justice system appears so seriously broken that it cannot be stuck together with quick fix glue. Unfortunately, the task before us has been ignored for so long that it has now taken Herculean proportions. No one would like to deal with it now, for it would take years before results begin to show and no government has the perception of that kind of time. So quick fix is what we will continue to see.

The need to respond urgently in the face of widespread public outrage, as followed on the heels of the Kathua and other rapes of minors, is understandable. Any useful, well researched measures would take far too long; so we have an ordinance allowing death penalty for child rapists – the quickest, simplest and most ineffective solution possible.

Ineffectiveness alone would still be excusable, but what we have here is a course of action that is actually harmful since it makes child victims more rather than less vulnerable and unsafe. With such thoughtless steps, government after government has succeeded in washing its hands off the need for reform, failing to even initiate thinking on what shape these reforms should take. Individual victims, our institutions, and the nation are together facing the brunt of this failure. Only if the power to pass ordinances, or laws quickly pushed through Parliament, and the power to impose the death penalty were magically taken away from governments, would we see some sustained, critical thinking along the path of reform crying to be taken. Only then may we see some reprieve for victims, for women and children subjected to abuse and violence on an hourly basis. For as long as these remedies are available, they will always be the go-to diversions, seriously impeding other meaningful action.

The police force in our country is understaffed, overworked, poorly trained, poorly looked after and severely under pressure from the political class. Countless initiatives on police reform, including police commission reports over the decades, court cases, including one that is probably breathing its last in the apex court, and several parliamentary and ministerial committee reports, have not been followed up beyond seeking comments and action taken reports from reluctant state governments.

 

Professionally the police have minimal support from forensic and scientific functionaries and very mediocre legal and juristic support from a broken prosecution service. Police training still continues to rely largely on building discipline and physical stamina, a legacy of colonial times. Our substantive laws framed by the British have received no major updating, merely a tinkering here and there, such as with the present ordinance. Laws relating to investigation and crime have one overarching theme and that is to mistrust the investigator. Statements made by witnesses are not to be signed, confessions made to the police are not admissible and all seizures and recoveries have to be witnessed by reluctant members of the public. The police are either reduced to being congenital liars on paper, or to wasting hours of precious time on the simplest of cases.

 

Instead of acknowledging that the police are unable and unequipped to deal with a spate of crimes against women and children, successive laws have only thrust more on to their shoulders. The laws that came after Nirbhaya require women officers to be associated in the investigation and record statements of victims when police women form just 7% of the country’s police force. The present ordinance requires police to complete an investigation in child sexual abuse cases within two months, reducing it from three months, without providing any additional facility that the police would require to meet the new target. Added to all this is the institutional patriarchy with which the police are imbued. No amount of gender-sensitization courses can replace the values that every policeman acquires from birth, from his family and from society.

It is almost a truism that the certainty of punishment rather than its severity is what makes the punitive aspect of the justice system impact the incidence of crime. This is what made the Delhi High Court question the government about whether any research or scientific assessment had been done before coming out with the death penalty ordinance. While there is no research that shows a positive impact of the death penalty on the incidence of crime, the conviction rate can certainly be a deterrent, although no long-term studies have been conducted on this either. The issue of penalty necessarily arises after the perpetrator has been found guilty. When we do not address the low conviction rate of sexual crimes against women and children and set our sights on only ramping up the penalty, we are effectively placing the cart before a very decrepit horse.

To address the progress of a case in the court we need to consider the long road to justice: witnesses being intimidated, bribed or worse; the staying power of the victim and of witnesses; the impossibility of maintaining continuity so that the prosecution, the investigator and the state prosecutor remain the same over a period of years and the witnesses do not change their addresses or simply disappear. The case overload in the courts, which is often pointed to as the chief reason for delays, is one aspect, but there are other more systemic failures that too need to be addressed. Simply designating special courts to try a specific crime does not reduce delays, and may even increase them as these courts are usually designated to take on the additional case load over and above their normal work. It is one of those quick fix solutions.

 

Attending to capacity alone will not solve the problem of delays either. Leisurely, cumbersome functioning is now a part of the DNA of our courts. When the system is creaky, functionaries adjust to it by adapting their mindset, losing both impetus and vision. Hardly any call for reform has arisen from the judicial or the legal fraternity, and lawyers particularly resent and oppose any efforts at streamlining the delivery of criminal justice.

Long adjournments which are a primary factor of delays, benefit neither the victim nor the accused in criminal cases. The court is seriously stymied by them as they waste judicial time and put to naught any efforts to streamline the management and scheduling of cases. Only lawyers benefit. Despite the Justice Mallimath Committee (1990) identifying the granting of adjournments as a principal cause of delay, there has been no decline in the amenability of the courts to grant them. A recent study found that in 91% of the cases delayed over two years in the Delhi High Court, adjournments were sought and granted.

Besides the shortage of courts, the system is plagued with access to justice issues, such as complex, esoteric procedures that add significant delays. Embracing of technology – cameras, computers, electronic recorders – that could allow for easier oversight and accountability has been hesitant and patchy. The infrastructure of technology is virtually absent in the lower courts, where the cases are tried in the first instance.

 

Accountability is a stark issue that must be faced. Witnesses lie with impunity, courts rarely using the power to prosecute for perjury. There is no code for counsels and fabrication of evidence invites no negative consequences for the prosecution. The rights of both victim and accused are trampled on with impunity; justice is particularly elusive for persons without means and legions of the poor fill our jails as undertrials, wasting the best years of their lives without having been found guilty. As with any other system which is broken, the police and the judiciary take advantage of the loopholes to enrich themselves and acquire a vested interest in the failure of the system.

In 2009 the government came close to approving a National Mission to upgrade the judicial system which would address delays, accountability issues and set performance standards. However, it was soon realized that comprehensive judicial reforms were necessary as a first step and the matter ended with the grant of funds by the 13th Finance Commission for specific steps to be taken to improve the delivery of justice. It can be argued that the hour for a national mission to frame a road map for time bound, comprehensive, holistic reform in the criminal justice system has indeed arrived.

 

Diversion and assuaging of public angst is one outcome of the death penalty. Other pernicious impacts are easy to surmise when we consider the silence that surrounds the crime. There is reliable data to show that most abuse of children occurs within the family and the family’s social circle. For a child to complain is a formidable task, made almost impossible when the chances are that the perpetrator – an uncle, cousin, or even a father – will go to the gallows as a result of the crime. Even if the child complains, the family will be much more likely now to smother her/his voice. There is also no reason for the predator to leave the child alive in such circumstances – after all, the victim is usually the only witness that can hang him. Even if all obstacles are surmounted and the case does reach the courts, the judge is likely to be even more wary than normal of passing the death sentence on the sole testimony of a mere child.

A final crucial issue that needs to be addressed for the safety of women and children is to engender protection and prevention through social intervention. The deeply embedded patriarchy in our society needs to be met on all fronts. Creating awareness requires meaningful inputs not only in the formal education system starting from schools, but also mass campaigns extended over a long and sustained period. The results will not show for many years and, even when they do, are unlikely to extend their benevolence to the ballot box. But this is a road on which we have to start with no thought for reward other than that of saving the future of our society.