The lost opportunity?: Anti rape bill

The Indian media, the social activists and the mainstream political parties like the Congress, CPI (M) & BJP are on the verge of losing a golden opportunity to stem the rising trend of rapes and sexual assaults against women; something that the public opinion has been strongly and overwhelmingly in favour of in the aftermath 2012 December Delhi gang rape case. This statement might be surprising given that the “anti rape” bill is being discussed in its draft form today with a view to do just that and has been discussed widely by the above mentioned groups in an unprecedented discourse about policy in India. The focus of the draft of the so called “anti rape” bill (it is actually Criminal Law (Amendment) bill), that gained momentum in the aftermath of the 2012 December Delhi gang rape case & the subsequent Justice Verma committee (that was tasked to look at existing legislations relating to women’s safety and suggest changes to check crimes against women) has been on specifying & defining new offences as well as on amending criminal laws to provide for greater punishment for sexual violence. The problem with the discourse around the bill as well as government efforts is that even though it quite importantly seek to do the above mentioned it misses a very important aspect of the justice delivery system; that of efficient and effective criminal prosecution to help the rape victims get justice.

The consequences of an inefficient & ineffective criminal prosecution are reflected in the inordinate delays in the trial & completion of rape cases (an average of 10-12 years ; as it is said justice delayed is justice denied) as well the low rate of convictions (averaging approximately 27% nationally) achieved even as an increasing number of rape cases are being registered over the years.

Take for example the status of the progress of rape cases in Delhi. In 2012, the number of convictions out of the 635 rape cases registered in Delhi is a shockingly low figure of 1. As for the rest of the cases, 403 were facing trials, investigations were pending against 348 and two others were discharged.

Consider the statistics on a pan India basis as given in the illustration below courtesy Wall Street Journal

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Even as recently as the last two weeks, the Minister of State for Home Affairs in Rajya Sabha quoting National Crime Records Bureau said in a written reply about the trend of rising rape cases even as the convictions rates remained low and stagnant attributed the reasons to

several factors like inadequate and inefficient investigations by investigative agencies, deficiency of proper investigative infrastructure, prolonged judicial process etc

The above two outcomes of prolonged judicial process & low conviction rates are the symptoms of a deeper problem; that of a inefficient criminal prosecution system that is not independent and effective which has not been addressed as part of the bill that will be taken up today.

A 2006 report by Centre of Civil Society highlights similar problems taking the case of Delhi.

“The appointment of prosecutors is also a grey area; politicians, bureaucrats and big lawyers heavily influence the recruitment process. Even though there are many regulations regarding the appointment process, these are often overridden by the Executive, which would much rather have its preferred choices as ad hoc appointees. Prosecutors should be insulated from political pressure and an incentives-based performance approach should be emphasised. Internal audit mechanism to evaluate the standards on which the case was fought should also play a significant role in increasing the overall quality of prosecution.”

The anti rape bill is looking at changes in the criminal law by amending Indian Penal Code (IPC), Code of Criminal Procedure (CrPC) and the Evidence Act. However, none of the proposed amendments in CrPC relate to the aspect of prosecution which is critical to reducing delays in the judicial process and in achieving convictions that will have a deterrent effect on such crimes.

The issue of criminal prosecution has a simple and elegant solution that has been explained by BJD MP from Odisha, Baijayant Jay Panda who has moved a private members’ bill to amend the Criminal Procedure code (CrPC) in a bid to check the alarming trend of criminalization of Indian polity owing to poor criminal prosecution. I am reproducing the relevant text from his article in a business newspaper last month:

“The third would amend the Code of Criminal Procedure to enable independent and effective prosecution.

Furthermore, to ensure that proceedings don’t suffer owing to ineffective or biased prosecution, my third Bill proposes to increase accountability and transparency in the appointment of prosecutors so as to shield them from political interference. Though the Code of Criminal Procedure, as it exists, calls for “consultation” with the judiciary for all appointments to the post of public prosecutor, the requirement has been diluted through amendments in many states. Special public prosecutors are often appointed at the whims and fancies of the government and without adequate reasoning. This is done to suit special interests.

 While commenting on the independence of public prosecutors in India, the Law Commission held in its 197th report that any legislation that permits arbitrary appointment of public prosecutors, without proper checks, would violate Article 14 of the Constitution (the right to equality before the law). Therefore, to ensure free and fair trials in courts, it is vital that the existing provisions of the Code of Criminal Procedure be amended.

My Bill mandates the establishment of a separate Directorate of Prosecution in each state with administrative control over all prosecutors in the state and answerable to the home department. It prescribes “concurrence” with the judiciary for the appointment of prosecutors at all levels. It also sets down an objective criterion to gauge the requirement of prosecutors. The Bill will also require a detailed and written explanation from the government about the reasons for each appointment to ensure transparency in the appointment of special public prosecutors.”

Despite the huge public opinion in favour of providing justice to the victims of rapes and sexual offences in the aftermath of the 2012 December Delhi gang rape case, it will be a tragic waste of the immense amount of emotional and intellectual energies expended by the Indian public if the public discourse and government efforts to amend policy does not eventuate in concrete steps to actually ensure justice for rape victims and create deterrents for such crimes. The media can still take up this issue to ensure that they do justice to their role as watchdogs of the Indian democracy and to play a positive role in the creation of a modern liberal democracy in India. Will it rise to the occasion?

 

Mass movement needed to arrest the criminalisation of India polity

I wrote about Baijayant Jay Panda, Lok Sabha MP from Kendrapara,Odisha, in an earlier post in connection with his efforts to maintain the freedom of expression of India’s internet denizens. Late last year, he had moved a Private Members’ Bill for the Lok Sabha to consider and review proposed amendments in Section 66A of the Information Technology Act (2000) that would safeguard the right to free of expression in India. Panda is back in the news again; this time he has filed 3 Private Members’ Bills in the Lok Sabha, all closely related to the Representation of the People Act (RoPA),  that if passed will go a long way in the fight against illiberalism in the Indian society and will significantly alter the quality of India’s public life thereby giving the goal of good governance a shot in the arms.

Writing in a business newspaper, Panda rightly diagnoses “the perverse trend of criminalisation of politics and the inability of the criminal justice system to conduct timely and effective prosecution of offenders” as one of the key causes of India’s pathetic standards in public life.

The goal of each one of these three bills in Panda’s own words is thus:

“My first Bill proposes to amend ROPA to remove the exception that allows MPs and MLAs/MLCs to continue in the legislature even after conviction. The second would set up fast-track courts for speedy trial (within 90 days) of criminal cases against all elected representatives. It would bring all MPs, MLAs/MLCs and members of panchayats and municipalities established under the state panchayati raj legislation under the Bill’s ambit. The third would amend the Code of Criminal Procedure to enable independent and effective prosecution.”

In a simple and short article, Panda has managed to bring out the justification for each one of these bills. This article is a must read; not just for its clear, simple and direct approach to attempting to provide a legislative solution to what is at the root of India’s scam a day image, but also to get inspired and find some cheer in today’s corruption ridden gloomy environment brought about by India’s eminent scoundrels who continue looting the country in their capacity of leaders of  political parties, government agencies, government departments and every single public office they lay their sights upon.

Like Panda, I hope that “enough public support can be drummed up, (so that) the government would be compelled to pass legislation to that effect”. It will certainly be a test for the media if they will rise to the occasion and provide the support this bill needs; just as they did with all the attention that was showered on the Lokpal Bill. For my part, I have submitted a Wikipedia page on The Representation of the People Act (RoPA), 1951 that should be available soon pending review. The absence of a Wikipedia page on this very important piece of legislation is surprising given India’s status as the largest democracy in the world. Also, given the serious lack of propriety amongst many of India’s public servants, it is quite surprising to note that there is nothing in India that even remotely resembles a Committee on Standards in Public Life such as the one in UK that serves to “ensure the highest standards of propriety in public life”.

A liberal politician of India: Baijayant Jay Panda

Baijayant Jay Panda is an Indian parliamentarian from the Biju Janata Dal. His profile on his website reads thus:

“Elected to the 15th Lok Sabha from Kendrapara, Odisha on 16th May, 2009. Baijayant “Jay” Panda was elected to Upper House twice from Odisha and was leader of the Biju Janta Dal (BJD) in the Upper House.He is among the new breed of politicians who are redefining Indian Politics”

Even if he says it so himself, I believe he definitely is “among the new breed of politicians who are redefining Indian Politics”. For one thing, he has an active twitter presence (most Indian politicians do not even deign it worthwhile to have a twitter presence; leave alone an active one) and that has been largely my basis for forming an opinion of him. His tweets are fairly witty & lighthearted for an Indian politician. Also his comments and interactions on twitter reflect an ability to engage in discussions; something that the average Indian politician is loathe to, instead being ever ready to deal in rhetoric.

I didn’t know much about Baijayant Panda until about 2 weeks ago when I began to follow him on twitter. But a tweet of his today made me realize that he is a key leader in ensuring freedom of expression on the internet in today’s illiberal Indian society.  The screenshot of the tweet is as below:

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Now, Section 66A of the Indian Information Technology Act, (2000) has serious implications for freedom of expression on the Internet in India. The same has been discussed widely. Section 66A of India’s s Information Technology Act, (2000) contains draconian provisions that can be misused and taken advantage of by illiberal elements of Indian society which can lead to deleterious effects on the future of an open society in India. The following is an extract from the IT Act (2000):

Section 66A:  Any person who sends, by means of a computer resource or a communication device,—

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently by making use of such computer resource or a communication device; or

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.

Coming back to Panda’s key role in fighting internet censorship; he had initiated a private member’s bill seeking amendments to the Section 66 A of the IT Act, 2000. A private member’s bill is described as below on Wikipedia

A member of parliament’s legislative motion, called a private member’s bill or a member’s bill in some parliaments is a proposed law introduced by a member of a legislature who is not acting on behalf of the executive government.

A brief and somewhat discouraging summary of the performance of such bills is reproduced below from Wikipedia

Of the 300 odd Private Members’ Bills introduced in the 14th Lok Sabha, barely 4% were discussed; 96% lapsed without even a single debate in the House. Till date, Parliament has passed 14 Private Members’ Bills. Six of these were passed in 1956 alone and The last Private Members’ Bill passed by Parliament was ‘The Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Bill, 1968’ that became an Act on 9 August 1970. No Private Members’ Bill has been passed by Parliament since 1970.

Contrast on the other hand, the case of Subramanian Swamy, a widely respected economist, politician and academician who played an important role in prosecuting the key accused in the 2G spectrum scam. A few months ago, I had seen a tweet by Swamy where he threatened to initiate action against some of his twitter critics using provisions of Sec 66A. His comment was thus:

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This episode made me realize that even a distinguished person like Swamy cannot handle criticism and had to resort to threatening action using the draconian provisions of the IT act of India under Section 66 A. Also, that highly respected anti corruption crusaders like Swamy hold no promise as to the future of a liberal India.  That tweet by Swamy left a bad taste in my mouth given its implications of curtailing freedom of expression and its ill effects on a society as well as for the fact that someone with Swamy’s stature would resort to such petty behaviour.

But Swamy’s tweet doesn’t depress me much after knowing that we have a politician like Panda who is actively campaigning against internet censorship. And this definitely bodes well for the future of Indian politics which today unfortunately is dominated by criminals and narrow minded individuals.