'Swift justice is most important'
Courting Injustice: The Nirbhaya Case and its Aftermath examines the horror and the hysteria surrounding the brutal gangrape and murder in New Delhi a year ago. Author Rajesh Talwar, in an email interview, says that laws by themselves are not enough India has more than enough laws, but speedy justice is the need of the hour
How effective do you think a law, even a stringent law, can be in curbing crimes against women?
On the law side I believe the situation is satisfactory following the implementation of the Verma Committee recommendations and the passing of new laws. However, laws by themselves cannot help in curbing crimes against women. We have more than enough laws in the country.
Former Delhi University Vice Chancellor and legal luminary Upendra Baxi was once quoted as saying that we have more laws than the GDP of the country! The most important thing in my view is swift justice. I’ll explain what I mean. When I was teaching criminal procedure at Delhi University, I often presented the following choice for law students.
Situation 1. The accused is found guilty of rape and sentenced to jail for seven years (under the old law). The final verdict after all appeals etc is announced within six months from the date of the occurrence.
Situation 2. The accused is found guilty of rape and sentenced to jail for ten years, or even life imprisonment under the provisions of the new law. The verdict becomes final after a period of 20 years. One of the frequent questions in the class was: ‘Sir, what is happening to the accused in the second scenario? Is he in jail for all this while? Or is he out on bail?’ The Supreme Court has made it clear that as far as under-trials are concerned, the rule is bail, not jail. A man is innocent till proven guilty. Of course this man is out on bail. There may be some high-profile cases - exceptions to the rule - where bail is not given.
Once this question of fact was out of the way, I have to say that 90 per cent of my students opted overwhelmingly in favour of the first option. ‘Justice delayed IS justice denied.’ We all do perceive the need for swift and fair verdicts. I can’t help wondering how Nirbhaya herself would have decided had she been given those two choices.
She would have demanded the harshest punishment possible, I do believe, but given a choice between only two alternative scenarios she would have opted for swift justice with a lesser punishment rather than a delayed decision with a harsher sentence. The harsher punishments hold little deterrence because of the delays. Former Chief Justice of India Altamas Kabir had said in a letter to chief justices of high courts in the country, that delay may be one of the factors contributing to the rise in the number of such cases, inasmuch as, on account of such delay, deterrence pales into insignificance.
What do you feel is the key to end violence against women - more laws, stricter policing, or education, sensitisation and awareness?
We need all the things you’ve mentioned. On the law side I believe we are now okay. There was the need to create new offences - which, following the Nirbhaya case, has now been done. For example, stalking should have been introduced as an offence much earlier. The legislators’ attention should have been drawn to this gap in the law as far back as 1996 when the Priyadarshini Mattoo case made daily headlines and there was a call for change. Had stalking existed as a separate offence at the time, it is quite possible that the rape and subsequent murder of the young law student may have been prevented.
The offences of stalking and acid attacks are also closely connected. There have been scores of acid attacks that have followed the same pattern. The boy has stalked the girl, made a proposal and then when that is turned down he has thrown acid. Voyeurism and disrobing a woman in public are also examples of new offences that should have been created much earlier. So it’s good we have new laws. And we need those other things that you mention: better policing, education, sensitisation and so on. But if you ask me what is the key - it has to be the need for speedy justice.
Do you feel that the institutionalisation of domestic violence against women in India, to the point that it is not seen as abnormal, contributes to or encourages violence against women in the public sphere?
You are right. There is a clear connection between the two issues. A man who beats up his wife and gets away with it, either because she doesn’t complain or because of police inaction - such a man will feel emboldened to think that he can get away with assaulting a woman outside the home as well. This affects the young boys in the family also.
There may be individual variations but taken as a whole, male children who grow up in families where they see their father beating up their mother are more likely, I should think, to inflict violence on their own partners when they grow up and get married, as compared with, say, children who see their father treating their mother with respect and kindness. I’m speaking only in general terms. Of course there may be cases where a male child who is a witness to his father being abusive to his mother may actually grow up with a hatred of male violence and become a campaigner for women’s rights - but this, I think, would be the relatively rarer case.
Reform, not revenge this was the key phrase in the aftermath of the Nirbhaya case. Do you think reform can replace revenge?
Let me put your question a bit differently. Unless there is reform, there will be more and more revenge. When people begin to lose faith in the ability of the courts to render them justice, they will resort to revenge to assuage their pain. Revenge or vigilante justice represents a breakdown in the rule of law. I believe that reform is coming, and that it is the Nirbhaya case that has pressed the trigger of ‘change’. If you will allow me to quote from the epilogue to my book which addresses this issue of reform....
As this book argues, we need to overhaul, reform, enormously expand and modernize our national judiciary, to give teeth to all those new laws that have been introduced, and all our other laws as well, and once that process begins, those reforms can be called ‘The Nirbhaya Reforms,’ which will then truly deserve her name.
Assaults are getting more brutal; disputes - even between teenagers and children - end in violence. Rape almost inevitably means grievous assault and injury to the victim. As an observer of society, what do you think is the reason for the growing anger that one sees, practically everywhere?
I sometimes see children getting angry; most of the time it is when they don’t get something they want. And the same is true for teenagers and adults. We live in a world of rising expectations. It is natural for the younger generation to have more demands. However, a part of growing up means coming to terms with your desires, to start to understand that you may have to struggle long and hard to reach your goals.
This understanding, this maturity, is harder to come by these days because of another reason. People are prepared to work long and hard as long as they see that others have to do this as well. But if they see that others are born with a silver spoon, others create shortcuts to wealth through corruption, if they are witness to ostentation and obscene displays of wealth, and if they see that this world is not only not fair, it treats people differently for no valid reason - it is then that frustration and rage begins to accumulate. As a famous judge once said, nothing rankles more in the human heart than a sense of injustice.
Even the child will be angry because he is not getting what he wants, but he will explode with rage if he sees a similarly placed child receiving preferential treatment. We have to restore equity and a sense of fair play in our society - and this is not unconnected with proper governance and a better, swifter justice delivery mechanism.