We need to re-imagine our criminal law to address the wounds of the victims of crimes, not the outrage of the bystander, says Ranjeev C Dubey
There comes a time in everyone’s life when they must stop to radically rethink their priorities. For nations, we call them inflection points, sometimes cultural transformations. For mature managers, we call them midlife crises! In every case, it’s about testing basic ideological assumptions about what we believe we want, or should. India has many institutions that deserve this kind of critical scrutiny. I believe our much respected but deeply troubled legal system is one of them. The problem of course is that like many epic stories, you never quite know where to start, or how far back you should go. Let’s pick just one piece of it: plea bargaining. Plea bargaining is a central part of American jurisprudence. It takes too much time and costs too much money to convict a guy and walk him through the many appeals till he reaches jail: why not make a deal with him and ask him to admit to a lesser crime? That’s what the Americans do, but we Indians frown on this practice because we see it as letting someone off the hook. We just don’t trust the bargainers. We suspect our famously corrupt processes will allow killer drivers to plea bargain convictions for jumping red lights and for politicians siphoning money in Cattle Fodder Scams to plea bargain convictions for inflicting cruelty on animals!
What we get for our upright zero tolerance stance is criminal courts clogged with cases they aren’t going to decide for 20 years. In these twenty years, jailed accused will be rotated through hearings every month in rickety old armoured buses accompanied by dozens of policemen tasked to prevent them from escaping. It’s a huge investment of manpower, automobiles and diesel, with little to show for it. It makes no difference if the accused is on bail. He still goes to court every month, spending one day every four weeks pointless kicking the dust outside the court.
Given this well know reality, when the Madras High Court took the initiative to encouraged a ‘compromise’ between rapist and victim in the case of V Mohan v State (Crl.A.No.402 of 2014), it seemed reasonable for us to stop and say: “okay, here a new thought on how to deal with law’s arrears”. Instead, we had twitterati terrorists frothing at the mouth and feminist activists bursting arteries in their anger. The Supreme Court’s reaction a week later echoed the outrage. Justice Deepak Mishra observed that it would be a “spectacular error” to adopt “any kind of liberal approach” in sexual assault cases. Why did everyone find the Madras High Court’s approach so outrageous?
Let’s briefly revisit the facts as we know them. The victim is an unwed mother of a baby girl. The accused claims she consented to the relationship. Her consent was irrelevant because she was a minor at the time and the law deemed it a rape anyway. The accused was convicted to a jail term of seven years and ordered to pay compensation of Rs. 2 lakhs as well. The girl is an orphan who lives with an adoptive mother. She faces a very uncertain financial future. I suspect that sending her violator to jail will not materially alter her existential realities.
So in a maverick moment of original thinking, the court referred the matter to the mediation centre. It ordered the convict to deposit Rs. 1 lakh in the bank, the interest of which would be paid to the victim. It released the convict on conditional bail and asked him to join the mediation effort. What happened next depended exclusively on the girl because if no solution was found, the convict would be back in jail with little to show for the money he put in the bank. If it worked out, the girl would be financially secure and the guy would be out of jail working hard somewhere to secure the future of his baby daughter. It seemed like a reasonable deal for the girl to make, but ultimately, it was her call.
Clearly, what you think of these steps comes down to the narrative you buy into. If you think a violent man brutalized a young virgin deserves whatever the law has in store for him, then its jail or nothing. Ditto if you think this is a nasty Casanova who seduced a mere child. It’s a crime for a man to seduce an impressionable minor but I do think it isn’t quite the same thing as sexually assaulting a girl. This should be relevant to how we think of the crime. Besides, these are cultural constructs, inspiring legal ones. My grandmother married at 16, as did my paternal aunt. Conversely, if you think they were two young people in puppy love who became victims of the law and were then brutalized by the inevitable coercive police process, your response may well be very different.
This is why many societies still favour compromise and satisfaction for the victim over state sponsored retribution. In Denmark, Venezuela, Indonesia, Cameroon and Chad, the Legislations provide that if the perpetrator enters into or continues a marriage or registered partnership with the victim after a rape, it gives grounds for reducing or remitting punishment. To my mind, marriage is not germane to the issue, effective solution to the post rape financial issues is. Everyone understands that victims of all crime need help. Sending the perpetrator to jail is not help enough, not by a long shot.
State support for victims is gaining in popularity worldwide. India has such measures too but they don’t work well. A study of the Manodhairya Scheme launched in 2013 after the Mumbai Shakti Mills rape case shows that only a handful of victims have been compensated. The State’s Women and Child Development Department disburses the funds to district level committees which receive all the applications and scrutinise them. Rarely do the districts receive adequate funds. In the Pune district for instance, 174 cases of rape and child sexual abuse were registered out of which 122 cases were sanctioned for a total payment of Rs. 3.26 Crores. However, the state paid out only Rs. 1.92 Crores so the district committee decided to compensate only 73 victims, keeping the remaining 49 on the waiting list. At the time of the publication of the report in June 2015, only 17 of 73 victims had actually been compensated. The victims either had no bank accounts or were allegedly untraceable!
You could argue that the state is not best structured to provide succour to misfortune or you could argue that there are too many kickbacks blowing in the wind. Either ways, the idea that the state must compensate victims of certain crimes is grounded in the idea that the state is responsible for citizens and must pay because it failed to protect its citizens. Why this should mean that the convict should not pay for the injury he has caused, but cool his heals in jail instead, is less than clear. We hear it argued that allowing convicts to compensate victims of their crimes encourages rich criminals to engage in them knowing they could ‘buy their way’ out of jail. This may well be true but whose choice is this to make: the state, or the victim? Whose injury is it anyway?
That takes us to the profile of rape cases now hitting cop stations. How many of them are of strangers befriended on Facebook, followed up by meetings in hotels culminating in allegations of rape? How many others are accusations of rape because consent was obtained on a false promise of marriage? A false promise of marriage is established by the victim’s statement alone and it is marriage she wants. Why not let her have her marriage? Once the accusation is made, the case takes a life of its own where the lady has no more control over what happens next. Events now serve principally to quench the fire in the souls of drum beating women’s activists. If the accused does marry her, what does jail time do for either of them? In many jails across India, especially Delhi’s Tihar Jail, the usual welcome accorded to a rape accused is to be gang raped by hardened criminals within the jail. As I see it, those who demand that rapists be compulsorily sent to jail are really saying they want the rapist to be gang raped in jail. I understand the idea of an eye for an eye, but that still doesn’t help the victim of a crime to heal all wounds.
So any which way I look at it, we need to re-imagine our criminal law to address the wounds of the victims of crimes, not the outrage of the bystander. In many circumstances, money for the victim may well be the most appropriate solution. Forcing the perpetrator of a crime to compensate the victim strikes me as the most logical solution. In any case, if the victim is happy to receive a sum of money for the injury suffered, why should a third party (like the law) have any opinion on the subject?
Author: Ranjeev Dubey, Lawyer
(The author is managing partner of the Gurgaon-based corporate law firm N South. He is the author of “Winning Legal Wars” and “Bullshit Quotient: Decoding India’s corporate, social and legal Fine Print”. He can be contacted at email@example.com or firstname.lastname@example.org).
*Originally published at Businessworld. Published here with the permission of the Author.