This programme called WE THE PEOPLE in NDTV 24/7 anchored by Barkha Dutt on 20/01/2013, was relating to the issue of Rape. I watched the programme and there were two retired Justices, and eminent persons including Ms. Flavia Agnes in the panel, which discussed the issue of RAPE in the Indian context.
My impression was that they came very close to the crux of the Legislative issue but somehow prevaricated tangentially leaving the core unattended to.
The crux according to me is two fold: firstly, the definition of the offence, which is essential for conviction. Secondly, the sentence part which would prescribe the maximum sentence prescribed for that offence.
The law of the land starts with the various legislations passed by the Legislative bodies and ratified by the head of the State or the Nation, as the case might be, to be called as ACTS and the rules/regulations made thereunder. Subsequently, if a matter is escalated to the courts, the judgements of the High Courts would be binding on those States to which the jurisdiction of the court extends, if there is no case law on the same topic if not decided by the Supreme Court of India.
The courts could however strike down the provisions if they are in derogation of the Fundamental Rights and other rights enshrined in the Constitution of India. This is the scheme, in a gist.
So, the definition of RAPE needs to be amended suitably. There could be discussions on end on this topic with no conclusion on it- so select committees and interested legislators could thrash it out. My ‘idea’ is that if HOMICIDE could be classified as MURDER, CULPABLE HOMICIDE and DEATH CAUSED THROUGH RECKLESSNESS& NEGLIGENCE, sure RAPE could also be classified into different categories and the corresponding sentences be prescribed through suitable amendments to the Indian Penal Code.
The real issue is how to ensure that the judges and justices throughout this vast country would be compelled by LAW to impose uniform penalty?
There is this Section 303 of the Indian Penal Code, which prescribes that if a person had been sentenced to life imprisonment and during that period commits MURDER, he shall be visited with DEATH PENALTY! There was NO DISCRETION LEFT FOR THE JUDGES. This section was struck down by the Supreme Court of India, on the grounds that the sentence was offensive of the provisions of Article 14 and 21 of the Constitution of India. So essentially, this Section 303 of the IPC, remains in the statute as a dead letter. No amendment has been made by the Legislatures or the Parliament to ratify the striking down of the provisions.
The point i am labouring to make is that, when a statute- in this case the IPC- could contain a provision prescribing a FIXED PENALTY for a particular crime, it is statutorily possible to bring an amendment to the IPC by imposing a fixed penalty for any of the three classes of rape, which i suggest to classify RAPE into.
This taking away the discretionary power of the judges would enormously help codifying a law which would be stringent and also provide the necessary deterrence!
Quintessentially, the Judges have only to option of weighing evidence and convicting the person, but the statute should be strengthened so that there are no whims of the judges coming into play when the offence has been established. Otherwise, like in a recent case, merely on the grounds that a person was inebriated and is young, judges may be swayed without any consideration of RETRIBUTIVE JUSTICE and award disproportionate sentences. I am aware that it would be the prerogative of the Judiciary to arrive at sentences in the normal course, but if the ACT prescribes sentences which will also not fall foul of the constitution, the vagaries besetting sentences could be avoided.
WE THE PEOPLE, did not broach this point adequately, even though the person from NLSUI came very close to it.
Analyzing a problem is one thing but attempting to find a solution is another thing. I think, the second is preferable, as otherwise there is every chance of the whole matter petering into vain sensation!.