Time for change, effective action

| | in Oped

The lawmakers of this country have to rise to the occasion and amend the law to ensure that criminals cannot brutalise and walk away to unleash more terror in society. The culprits will have to be dealt with more severely

The recent beastly assault on a young girl in Mumbai has once again evoked horror on the part of the civil society. This repetition of ‘Nirbhaya’s’ case has left the nation aghast. Up until now it was the high incidence of rape cases in Delhi that had shaken society. Cosmopolitan Mumbai, the financial centre of India, was considered to be a very safe city for women. But the recent episode has shattered this belief. This is one among the several horror attacks on women in Mumbai in recent times.

The brutality and the unbridled frequency of sex crimes against women evoked the concern of the Supreme Court, when an anguished Bench questioned out aloud, “What is wrong with the system? Why are 90 per cent of rape cases ending in acquittals? The situation is going from bad to worse, why is it (rape) happening again and again? That too, only in metropolitan cities?”

After ‘Nirbhaya’s’ case when the society reeled in the aftermath of anger, terror, frustration and the sheer pressure of civil society movements, not launched by organised groups but led by civil society factions, primarily the youth of the capital, the Government, which was under severe pressure to take effective action, vowed to bring about a positive change in the treatment meted out to women in our society.

One of the primary demands of the protesters was for the enactment of stricter laws to punish the perpetrators of sex-related crimes against women, with the hope that effective laws would act as a deterrent to potential criminals.

It took many days and nights of protests and active civil society movements to force the Government to finally relent and amend the law, imposing higher punishment and adding additional crimes of sexual assault on women, including acid attacks and stalking. This happened in April, four months after the Delhi incident.

As a great promise, we saw ‘Nirbhaya’s’ case being adjudicated by a fast-track court, and it is now still awaiting the final judgement. The primary accused, alleged to be the most brutal and ruthless, is being tried by the Juvenile Justice Board as he is stated to be more than 17 years of age but less than 18 years.

The civil society was understandably enraged that the existing law did not provide for a strict penal punishment for an under-18-year-old criminal who is accused of committing the gruesome crime. The maximum punishment under the law for a criminal below 18 years of age is three years in a special home. The juvenile can be released immediately after advice or admonition or be asked to perform community service, depending upon the nature of his crime. He could also be sent under the care of a probation officer for a period of three years.

This does not seem to be right. How can we subscribe to a system of law which does not protect the victim, and is not victim-centric? How can we subscribe to a system which does not look into grievousness of the crime and the injuries inflicted on the victim? How can we put a seal of approval on the offender going almost scot-free only on the ground of being under 18 years of age? How can we have a system which does not look into the maturity of the offender and the nature of the crime?

Some of these questions have been raised in the writ petition filed by Subramanian Swamy in the Supreme Court. The petition contends that the Juvenile Justice (Care and Protection of Children) Act suffers from a case of casus omissus, or an omitted case. This means when a statute or an instrument of writing undertakes to foresee and to provide for certain contingencies, and through mistake, or some other cause, a case remains to be provided for, it is said to be a casus omissus.

It is Mr Swamy’s contention that the court is bound to consider the emotional, mental and intellectual maturity of the accused juvenile before considering him for trial under the Juvenile Justice Act.

It is being argued that since India is a signatory to the UN Convention on the Rights of the Child and the Beijing Rules, the drafting of the relevant Sections 2(k) and 2(l) of the Act, defining without any ifs and buts, the Age of Criminal Responsibility as above the age of 18 years, is an inaccurate representation of Parliament’s intention, and that of the UNCRC and the Beijing Rules.

It is contended that the Indian law has left many unintended gaps in the statute, which need to be rectified. Whereas the Beijing Rules require “emotional, mental and intellectual maturity of the juvenile to be borne in mind” while awarding the punishment, the Indian law has merely provided a blanket provision based only on age. If the arguments of Mr Swamy succeed and the term ‘juvenile’ is redefined retrospectively, then in that event the juvenile accused in the ‘Nirbhaya’ case may be tried as an adult.

The Supreme Court has directed the lower judiciary to ‘not be soft’ on the criminals accused of rape and not award light sentences to rapists. It has been held time and again that “rape is an offence against the society and there is no scope for compromise”.

I have personally advocated for the severest of punishment and the linkage between the gravity of the crime and the punishment. I believe that in a society where crime is rampant and the under-18 tag is being used as protective shield for brutal crimes, there needs to be an immediate change in the law.

I cannot say whether in view of Article 20(3) of the Constitution, the petition in the Supreme Court will succeed and the existing law will be read interpretatively to include punishment awarded to adults under the Indian Penal Code and whether the same will be read retrospectively. I, along with millions of this country, would wish it to be so.

The defence that is now being raised by the accused in the Mumbai rape case, shocks and threatens one’s sensibilities. One thing is for sure: The lawmakers of this country have to rise to the occasion and amend the law to ensure that criminals cannot brutalise with impunity and walk away to unleash more terror in society.

(The writer is a senior advocate at the Supreme Court of India)

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