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Reform criminal justice system to stop crime against women: AHRC

 

Monday June 09, 2014

India, Crime Against Women, Criminal Justice, Crime investigation  
 
If women in India feel that they are not even safe in the company of the police, perhaps it is time that they ask the Indian government what is its plan to change this. Mere increase in the number of women police officers is not a solution to this. It is only a wrong presumption that women could better protect women and women in distress talk better to women. It is incorrect to make such an assumption particularly in India since the wrong is with the institution and not just in its gender balance or in the nature of the crime.  
HNF Correspondent  
   

The incident of brutal sexual assault in Delhi, India's capital city, led to several debates and varying opinions about what changes are to be made to the criminal justice process to effectively address the scornful menace of sexual assault and forms of sexual violence in India. ‘Some of them were poignantly valid and others ridiculous,’ said Asian Human Rights Commission (AHRC) in a release citing that an alarmingly large proportion of the population, if the media reports and surveys were to be believed, suggested prompt if not instant punishment to the accused. An overwhelming number of people, including political parties suggested nothing less than capital punishment for the offence. Organisations like the Amnesty International favoured processes like chemical castration. The country’s judiciary, expressing dismay over the particular incident that happened in Delhi, said that the government should do everything possible to ensure safety of women.

 

A large number of lawyers in the national capital on the other hand denied to defend the accused in such cases.

‘Most of these opinions fail to address the exact issue,’ viewed AHRC arguing that ‘to stop violence against individuals, women, members of the minority communities and the most vulnerable in India in particular, the issue is to be addressed. What is ignored either due to ignorance or intentionally is one of the fundamentals of criminal jurisprudence - it is the certainty in punishment, not the severity of it that deters crime effectively.’ The release further added that ‘Jurisdictions like China, where capital punishment is routine does not see reduction of crimes because of the prompt and severe punishments prescribed to crimes. In China capital punishment is prescribed for 55 crimes. This was 68, which the National People's Congress Standing Committee in 2011 recommended to be reduced. Neither do jurisdictions like Saudi Arabia nor most of its neighbouring middle-eastern princedoms see reduction in crimes, even though penal laws in these countries prescribe some of the grotesque forms of punishments for crimes.‘

Same was AHRC’s argument against punishments that would cause permanent physical damage to convicts such as, chemical castration. As per AHRC, ‘These forms of punishments cause permanent physical damages to persons that are irreversible. ‘The fundamental defect of such a punishment is that the advocates of such forms of punishment tend to blindly assume that the adjudication process, which convicts a person, is infallible. It would be patently wrong to make such an assumption within any jurisdiction. Given the circumstances in India, and the manner in which the country’s criminal justice machinery functions, one need not hesitate to conclude that, from the experiences so far, the country’s criminal justice process has some serious issues which require to be corrected,’ said AHRC.

Mentioning that ‘Any adjudication of guilt of a person begins with a complaint. Crimes registered for all offences, at the instance of a citizen or of the state, are complaints nonetheless,’ the release held the police mostly responsible adding that ‘the fundamental thus, is that the complaint registering entity should entertain receiving complaints; be able to record it in a professionally and are equipped to deal with the complaint immediately. Contrast to this is the single largest complaint receiving entity in India, the police.’

‘Police, the very mentioning of it, does not infuse confidence in people, but on the contrary generates fear and repulsion. Police stations are notorious for their secretive, fear-generating environments and events, that none in the country would wish to get to a police station, as a complainant, witness or as an accused. To approach this agency, people scramble for extraneous support, often in the Indian context, by approaching a local politician. Before approaching the police, ordinary people ask around what amount of bribes are to be paid to the police - the station house officer, a constable, the driver of the police vehicle, a Sub Inspector of Police, the Circle Inspector, or a Superintendent of Police,’ the release stated.

AHRC expressed its doubt on the functioning of Police or the investigating officers as they should according to the law. ‘Any person approaching the police runs the risk of being humiliated, tortured, raped, shouted at, and implicated in fabricated charges. Instances where people have lost lives at the hands of the police they have approached seeking help are not rare,’ said AHRC.

Placing reforms and changes in policing as immediate need, AHRC said, ‘If women in India feel that they are not safe in the company of the police, perhaps it is time that they ask what is the government’s plan to change this. Mere increase in the number of women police officers is not a solution to this. It is only a wrong presumption that women could better protect women and women in distress talk better to women. It is incorrect to make such an assumption particularly in India since the wrong is with the institution and not just in its gender balance or in the nature of the crime.’

Questioning the integrity of the police, the release said, ‘The generic statement that women facing domestic abuse seldom approach the police to make a complaint since they are afraid of being raped in police stations is not a joke. This fear is real. Civil rights moment in India should question the government - what action has the government taken to change this frightening perception?’

While sexual offences like rape and sodomy are some of the most complex and cruel crimes that a person could commit upon another individual, the police is not properly equipped with quality training and facilities to investigate these crimes. ‘More than 90 percent of police constables and low-ranking police officers do not receive any training in criminal investigation, other than what they get before joining the force at the cadet school,’ the release mentioned adding that ‘In the male dominated Indian society, one cannot expect a police officer who abuses his wife at home to be sympathetic to a victim of sexual abuse.’

Urging for changes in the criminal investigation procedure, AHRC said, ‘As long as the policy and practice in India are to treat confession, no matter how it is extracted, as the cornerstone upon which a criminal investigation is based, one cannot expect the criminal justice process in India to improve. The number of cases in which convictions are based upon confessions is far too low in India. In fact one of the reasons why the conviction rate in India is simmering around 4 percent is because the bedrock of most criminal investigations are confessions, a legal construct that would be the first to be thrown out of a court for good reasons when the case comes up for trial.’

AHRC did not cite the flaws in policing system in India but it also criticised denial of defence to the accused. ‘If criminal investigation in India has serious issues to be addressed, the legal minds in the country also suffer from severe aberrations. The most recent example to this is the protest by the Delhi Bar, when the accused in the Delhi rape case was brought to trial. Those lawyers who argued and tried to physically manhandle the lawyers who were willing to appear on behalf of the accused, have clearly demonstrated their disagreement with the rule of law and due process,’ said AHRC adding that ‘In any part of the world where acceptable standards of the profession is maintained, such conduct would not be taken lightly. In India, that too is an exception.’

The report urged that instead of discussing punishment for crimes, India should discuss and address the deep-rooted problems in the mechanism available at the moment to deal with crimes.

 
 

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