How Do You Hang Them Without Convicting Them ?

When governments don’t have a solution to a problem, or lack the will to find a solution, they go in for distractions. The present BJP govt. at the center is a past master at this. It has made the red herring its own, to the point where we can justifiably call it the saffron herring. The issue last week of the “Death ordinance” (for rape convictions involving girls below 12 years) is a case in point. Having supported the rapists in Kathua and Unnao for months, and finding the ground slipping from under their feet as public outrage developed into a tsunami, it immediately promulgated this ordinance- without even bothering to go to Parliament- as a smoke screen. The govt. fully knows it won’t work- just as demonetisation, GST, Aadhar, or surgical strikes did not work. But when the essence of your governance consists of grandstanding rather than sensible administration, it doesn’t matter. This is something all governments in the past have been guilty of: when you cannot- or do not want to- do anything to stop the decay of your criminal justice system, simply come out with more and more blood thirsty and progressively draconian laws.

The Death ordinance will not work, for the simple reason that before you can hang somebody you first have to convict him, something which our broken down, corrupt, insensitive and venal criminal justice system just cannot do. The Prime Minister may shout from the rooftops or Wembley stadium that the guilty will be punished, but the fact is that they won’t- and every potential rapist knows this.

For the simple truth is that rapists just don’t get convicted, whether in Bharat or in India. More and more of them are getting off scot- free every succeeding year: the NCRB data itself tells the sorry story. The conviction rate( in rape cases) was 44.3% in 1973, 37.7% in 1983, 26.9% in 2009 and an abysmal 24.21% in 2016- a fifty percent decline in 35 years. Three in four rapists live to rape another day- and they do. Why they do is a disheartening saga of wrong policies, maladministration and a don’t give a damn attitude.

There were 38000 cases of rape registered in 2016, of which 2116 were of minors below 12 years. An unbelievable 152000 cases of rape are pending in various courts ! But only about 6000 cases are decided every year ( about 16%)- hence, even without the existing backlog it would take seven years to decide the average case at THE TRIAL STAGE ITSELF. It is best not to think of how long the appeals will take: the Nirbhaya convicts have still not been hanged because their appeals against the Delhi High Court order have been pending in the Supreme Court, no less, for the last three years! And why do these cases take so long to come to fruition? Apart from the normative sloth and delaying tactics, one major reason is the unacceptable number of vacancies in the court system. In the lower( trial) courts as in February 2018 there were 5925 posts of judges lying vacant out of a total sanctioned strength of 22677- or a little less than 30%. The position is worse in the High Courts- 403 of 1079 posts are vacant, or 40%. The situation is going to get worse in the coming months because of the on-going tussle between the Center and the SC collegium over the matter of appointments. It is in this background that we must consider how sincere the govt. is when it provides ( in the Ordinance) for a six month period for concluding trials and for setting up fast track courts. Both provisions are not worth the paper they are printed on unless the vacancy position is first rectified- THIS is what needs to be fast tracked!

The consequences of delays in rape trials are fatal for the prosecution, another major reason for the acquittals. Evidence disappears, witnesses turn hostile under all kinds of pressure or are simply eliminated ( eg. the Asa Ram case), there is no ownership of the case because everyone involved- judges, prosecutors, investigating officers- gets transferred, accused jump bail.

Given the type and quality of investigation conducted by our police, it is actually a wonder that anyone gets convicted. Two recent cases come to mind- the Aarushi murder case and the Kotkhai rape case. Both were totally botched up by the local police, the CBI even botched up the first one! It is not surprising at all considering that the police are completely devoid of any of the forensic or technical skills needed, and rely almost exclusively on third degree methods, ” confessions” and coercion of ” witnesses”, genuine or manufactured. A person who is carrying out a lathi charge one day cannot be expected to become a Sherlock Holmes the next. Many years ago the Supreme Court had directed that the law and order machinery should be separated from the crime detection personnel so as to develop specialisation in the latter- no state has implemented this yet.

Proper investigation is further hamstrung by the lack of any support on the forensic side. The reader would perhaps be shocked to learn that the whole country has only seven Central Forensic Laboratories! ( Some states have their own but most of them cannot even tell the difference between the DNA and the NDA).The pendency in CFLs is huge- more than 5000 cases: this is another cause of delay, and also acquittals because in many cases, by the time the samples are tested, they have deteriorated to a point where they lose all evidenciary value or are simply misplaced or removed.

The police is responsible for the rising number of rapes in other ways too. Their insensitive, callous and even hostile behaviour in dealing with rape victims or complainants, and their susceptibility to influence from the rich and powerful, encourages the feeling of immunity among the potential rapists. A case in point is the Unnao kand, where no case was registered against the local MLA for ten long months, even though the rape victim had specifically named him as the perpetrator in her complaint to the district police. The Criminal Law Amendment Act ( passed after the Nirbhaya outrage) has a specific provision that a policeman who does not register the victim’s complaint is to be dismissed from service and is also liable to six months’ imprisonment. But this provision has not been applied against the Unnao cops. In fact, it has not been used even once in any state ever since it was legislated! Is it any wonder then that cops give two hoots about faithfully registering complaints?

And finally, add politics, caste and nepotism to this witch’s brew to complete this sorry concoction. Vulnerable sections of society- minorities, tribals, lower castes, the poor- are seen as fair game and rape is considered as a legitimate tool for the expression of economic or social dominance. Increasingly, politicians view rape through the prism of elections and ideology: their support to the rapists, as in the Unnao and Kathua cases, seeks to confer another layer of legitimacy on this dastardly act. In his proforma response to these incidents even the Prime Minister refused to specifically refer to them, perhaps for fear of alienating his voters.

Let us also not forget that little demographic statistic in passing- that, thanks to a skewed sex ratio, we have 37 million fewer girls than men and that has its own consequences. It cannot be a coincidence that the largest number of rapes occur in those ( northern) states where the sex ratio is most skewed.

These then are the issues the govt. needs to address, and they are not new revelations- they have all been recommended for attention by various Police Commissions, the Supreme Court, the Justice Verma Commission. Unless the capabilities of the police are improved and they are held accountable, unless witness protection programmes are introduced, unless more Forensic labs are established ( why not use the hundreds of crores lying unutilised in the Nirbhaya fund?). unless vacancies of judges are filled up at all levels, unless political parties look at the rapist’s crime and not his votes, unless trials are concluded quickly, unless governments stop rewarding supporters of rapists and murderers by making them Ministers, as was recently done in Kashmir- nothing will work. What is required is not some instant panacea like the Death ordinance but persistent diligence, unpopular decisions, large-scale sacking of cops and prosecutors, a moratorium on pandering to votes, a return to the basic values of humanism. If we cannot muster up the courage and honesty to make this effort, then it’s not the rapist who will hang, but our heads, in collective shame and guilt.

Avay Shukla retired from the Indian Administrative Service in December 2010. He is a keen environmentalist and loves the mountains. He divides his time between Delhi and his cottage in a small village above Shimla. He used to play golf at one time but has now run out of balls. He blogs at

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