Saturday, December 29, 2012

Medieval-justice soup for the enraged Indian soul



As a society, are we really seeking implementation of medieval laws in India? Surely the calls for barbaric punishment are just a venting of anger and we don’t really want “public castration” to appear anywhere in our books of law, right? Surely we don’t want to join the likes of Saudi Arabia and Iran, do we? What sense does adding a stiffer punishment make, when we don’t even enforce punishment available with our current laws?

The gruesome rape and assault on a 23 year old woman in Delhi, has sparked unprecedented anger and outrage in citizens across wide spectrums of age, gender, and socioeconomic background in India. It might be safe to say that Delhi hasn’t seen this kind of on-the-streets-outpouring-of-anger since the “Mandal Commission” mania of 1990.

The crime is reprehensible beyond words and I choke up more often than I’d like every time the details of the injuries are described on television and the mind is forced to contemplate and visualize the brutality that caused them. The last time I felt this way was when the news of young Captain Saurabh Kalia being mutilated by his Pakistani captors broke in 1999. The thought of one of our finest being subjected to unimaginable torture by Pakistanis, and somehow still managing to uphold his IMA code of honor and loyalty to his motherland, invoked anger and emotion in me at a hitherto unknown level. This incident is right up there on the anger-emotion scale.

The public anger in response to this rape, which might be the proverbial “straw that broke the camel’s back”, is justified and it serves a finite purpose – bringing the gravity of the situation to bear on the government, and increasing the probability of corrective measures being put in place. Many outraged citizens will understandably call for grisly medieval acts of execution being passed into law as a means of satisfying the need-for-retribution. This too serves a finite purpose – it quantifies the scale of the public anger, and pushes the government and administration towards reasonable action.

Options put forth via television, social media, blogs…

1.Behead them 2.Hang them publically and leave the bodies suspended for the world to see 3.Castrate them 4.Chop off their limbs 5.Blind them, cut their tongues off, shove hot rods in their ears. 6.Fast track and execute them in 2 weeks.

I have no problem with a few outraged citizens making these suggestions. What I do have a problem with is elected officials, politicians, television anchors, and other thought leaders toeing this line.

Medieval Law fails even a simple sanity check.

Whats the problem with medieval law? Well, for starters – it’s Medieval (extinct, outdated, civilized society tried it and then discarded it)! These laws are medieval because they existed universally up until a few hundred years back, and civilized society found problems with them and upgraded them to become… well… more civilized. If they truly were the best laws around, it stands to reason that civilized society would have persisted with them and they would still be around. Pretty much the only few nations that follow such laws today are those that constitutionally believe that the only set of laws that are relevant for all of eternity, were penned in the 7th century. That’s the model we want for India?

The “Deterrent” argument: chop the bloody rapist’s head off in public view, and others will not dare rape.

I think it is reasonable that instilling chilling fear will deter some from committing a rape in the first place. Then again, for those that will rape anyway, a fatal deterrent to rape may actually spur the rapist towards committing homicide after the rape. Having committed a rape, the rapist may reason “I face the death penalty now, in super barbaric fashion no less…. so why don’t I minimize my chances of getting caught and kill her now? It's not like they can kill me twice. I got nothing to lose by killing her.“ This is not an outlandish hypothesis, but in fact one substantiated by behavioral economics research. Research shows that instilling the ultimate punishment (execution) for anything other than the ultimate crime (murder), actually increases the likelihood of the lesser crime being upgraded to murder by the perpetrator. There is also plenty of statistical research that shows that capital punishment is not a deterrent to violent crime. So what net-net effect capital punishment, or even barbaric capital punishment will have to the overall violent crime rate, is questionable, and quite likely it may even be counter-productive.

There is also the concern around causing irreparable damage to innocents. Anyone want to venture a guess on the rate of false arrests, and false sentencing in India? I think we can all agree that it’s pretty high. As an example, recently the Delhi High Court acquitted 2 alleged terrorists, who were on death row for the 1996 Lajpat Nagar blasts. The court observed that it appears that the police deliberately and callously framed and charged the 2, most likely to “show results” to their bosses. Want to bet that some politicians were involved in pressurizing the police to “show results”, so that they can hold on to their seats at the next election? Thankfully, we as a society were able to reverse this travesty, to some extent, by giving those men their lives and freedom back. Who will give back a limb, testicles, eyes, ears, tongues, and lives of those wrongfully convicted and bestowed with medieval justice? Acceptable collateral damage you say? I vehemently disagree. The collective blood lust of a nation pales in importance when compared to the right of an innocent to receive a fair trial and judgment. The authors of our judiciary agree, as do the authors of judiciaries around the world in observing the maxim of “let 100 guilty go free, but no innocent should be punished”.

The “expedited justice” argument:

Yes, our country needs serious reinforcements to the judicial system, so that the overwhelming backlog is worked through. Yes, our country needs a system to “fast track” certain kinds of cases, wherein the crime is so heinous that they deserve to bypass the backlog. However the “fast tracking” should be limited to these cases cutting ahead in line in getting resources and hearing dates, not in abdicating due process in investigation and legal deliberation. The notion that for some cases the entire process should be rushed, and “instant” punishment delivered, belongs to the annals of a banana republic. I question the sanity of the Times Now TV anchors who shriek themselves hoarse - “Why are the faces of those rapists covered” (in the police arrest videos)…. “Will our government wake up and try, sentence and execute them in months, not decades”. The faces of the rapists are covered because who is to say that the police has not arrested your Dad instead of the real rapists, Mr. Arnab Goswami? And yes, it will take more than a few months to try and sentence them, as it should, because again, who is to say that it isn't your Dad who has been wrongly identified from the line-up? It’s not rocket science that a rushed trial and rushed sentencing will dramatically increase the probability of false outcomes. Forensics, discovery, interviews, interrogation, searching for legal precedents, are all time consuming activities. The idea that a judicial system can effectively do all of those things in a rushed fashion, and still maintain a reasonable degree of accuracy, belongs in fiction.

If not medieval justice, or capital punishment for rape, what should be done?

What we are sitting on is an “enforcement” problem, not a problem necessarily with the laws. A large majority of actual rapists do not get convicted at all, because of a biased police, and because of shoddy police and prosecution work. Adding capital punishment, or any barbaric punishment, is not going to change enforcement rates. If we enforce our current rape laws well, that in and of itself is enough to be an effective deterrent. Do we really think that would be rapists would want to spend between 7 and 14 years in an Indian jail for a five minute power trip? If they knew that committing a rape meant a high likelihood of spending a decade or more in jail, it would very likely deter the vast majority. First thing that needs to happen top-down is a strict edict to every police boot on the ground – if you slack on your duty in handling a rape case, you can go back to kheti-baadi. If you refuse to lodge an FIR, harass the victim, or handle the case maliciously, you’re going to jail.

Of course, the biggest move we can make as a society, towards combating this problem, is to do whatever we can to combat the mindsets that disadvantage women. We need to eradicate mindsets that deny a daughter an education while offering it to the son, mindsets that treat as given the sole right of the son on inheritance and treat daughters as "paraya dhan", and mindsets that accept that the burden of a wedding and “continual hospitality of the ladke waale” rests with the parents of the bride. Whether this entails someone like Aamir Khan leveraging his fame for the cause, or it involves one of us talking to our relatives about not “bending over backwards” to “serve” the groom’s side of the family during a family wedding… every chip will add up. Empower and respect the women in your life, and use whatever influence you have to propagate the same behavior in others around you. It will not be inconsequential.