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Legal reforms is the answer to Kathua/Unnao, not vigils

By Colonel Anil A Athale (retd)
April 26, 2018 09:30 IST
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'Loss of faith in the fairness of the system and the perception that one cannot expect justice are the first few steps to the slippery slope of anarchy,' warns Colonel Anil A Athale (retd).

Congress workers participate in a candlelight march to protest the government's 'inaction' in the Kathua and Unnao rape cases near India Gate, New Delhi, April 12, 2018. Photograph: Arun Sharma/PTI Photo

IMAGE: Congress workers participate in a candlelight march to protest the government's 'inaction' in the Kathua and Unnao rape cases near India Gate, New Delhi, April 12, 2018. Photograph: Arun Sharma/PTI Photo

While travelling in Sri Lanka recently, one was often asked by lady Western tourists about the 'rape' situation in India. This was nearly two months before the horrific Kathua and Unnao crimes.

The coverage of the crimes has created a sense of crisis and therefore warrants an effort in seeing the larger perspective.

If the crimes against women (both reported and un/under-reported) are seen in the context of India's nearly one-and-a-quarter billion population, these indeed are insignificant.

Seen as a proportion of population these figures are possibly the lowest in the world. Certainly far lower than in the prosperous countries of the West like the US.

It is also a fact that any generalisation is wrong in the case of a continent-sized country like India.


The crime in general is more rampant in the northern parts of the country than elsewhere.

Taking Delhi as an example and making a generalisation is like taking, say Rio de Janeiro's crime stats and making a generalisation about the situation in Brazil.

India is far more diverse than even the European Union. How fair is it then to extrapolate, say, the situation in Bosnia on Spain or Germany?

The real concern is not that the crime rate has increased or is alarming, but the fact that almost every crime is followed by public agitation, street protests and even violence.

This is true of not just heinous crimes like rape and murder, but even a road accident.

It has become common practice that a death in a road accident is followed by blocking the roads, stone peltings and attacks on the police.

This cycle of violence is due to the public perception that justice will not be done in the normal course and the culprit -- especially the politically influential and/or the rich -- will get away with, well, a murder.

It is this perception that ought to be the real cause of worry for all right-thinking citizens.

Loss of faith in the fairness of the system and the perception that one cannot expect justice are the first few steps to the slippery slope of anarchy.

This situation has not arisen in a day and has been building up over a period of time.

The rapid urbanisation that has been underway in India has given rise to lumpen elements in urban slums.

People migrating from rural areas suffer a cultural shock when they migrate from a conservative village environment to a relatively 'open' urban culture.

Unlike a village, the city offers anonymity that leads to freedom from moral inhibitions.

Most crimes occur due to the combination of these factors.

Add to this the breakdown of the joint family system and the tensions of urban living, and you have a potent witches' brew.

In addition to these factors, India has also unfortunately seen the erosion of religious beliefs and values.

Pseudo intellectuals have been conflating social ills with religion and have thrown away the proverbial baby with the bathwater.

Many visitors to the Middle East marvel at the absence of street crime in brutal regimes like Saudi Arabia and root for the medieval laws of 'an eye for an eye' variety.

On the other hand, very few Indians bother to ever study our South Eastern neighbours, predominantly Buddhist but also Muslim majority countries like Indonesia.

In all these countries, some of them poorer than even India, street crime is very low.

All these are deeply religious countries and the concept of 'good karma', earning merit for the afterlife, keeps the social peace.

It is essentially their Indian heritage, which they openly acknowledge, including Muslim majority Indonesia, that is responsible for this.

The motto of the Indonesian air force special forces is from the Bhagvad Gita: Karmanye eva adhikar as the, ma falreshu kadachina, roughly translated as doing one's duty without expectations or attachment to the result.

A visit to South East Asia leaves one with the sad feeling that while these countries have accepted, adopted and internalised Indian ethical and moral concepts, we in its birthplace have forsaken it.

This civilisational flaw has been compounded by our hubris and pride in our colonial heritage.

In 1947 we accepted Anglo-Saxon jurisprudence and its systems in toto. However, in 1960, in the wake of the Nanavati case, the jury system, an inseparable part of Anglo-Saxon jurisprudence, was abolished.

One does not recall much public debate or even parliamentary deliberations on such a momentous step.

The result of that unfortunate and hasty decision has been that justice in India has been totally divorced from commonsense and become more and more 'technical'.

A great majority of acquittals in our system have been on 'technical' grounds. This has indeed skyrocketed the prices of clever lawyers.

Since only the rich can afford their fees, it has become almost a sine qua non that the rich, famous and well-connected get away scot-free.

Verdicts are increasingly divorced from reality and fact, as seen so clearly in the infamous Jessica Lal murder case.

That should have been a wake-up call for reform of the criminal justice system, but it did not happen since the status quo suits the rich and powerful.

The concept of an independent office of public prosecutor or bifurcation of the police between law enforcement and investigation received short shrift.

Instead of reforming the system, we have a court monitored investigation, a sort of poor cousin of an independent public prosecutor.

With the court itself acting as prosecutor by proxy and sitting in judgment, we have violated the first principle of separation of powers.

Finally, we come to the issue of judicial delays, especially in criminal matters.

The Constitution lays down that the primary duty of the Supreme Court is to interpret the law and Constitution. It is, of course, the highest court of appeal.

But the apex court has been accepting appeals even in cases where no substantial point of law or Constitution is involved and the issue is mere interpretation of facts.

As a convention, in most other democracies, that is left to the high courts.

One can understand an admission of appeal if there has been a gross misinterpretation of facts at the high court level, but in India, our apex court has admitted appeals even when the issue involved is only of facts and not a point of law.

The result: The court is clogged with pending cases.

If we are serious about the rule of law and wish to prevent anarchy in the country, judicial reforms is the answer to cases like the Kathua and Unnao rape cases, and not lighting candles at India Gate on one hand and disrupting Parliament on the other.

Colonel Anil A Athale (retd) is a student of military history and specialises in studies in internal conflicts.

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Colonel Anil A Athale (retd)