INDIA: Where even a judge is not safe

June 10, 2014

The rape of a judge in her residence, located in a high-security area in the city of Aligarh, Uttar Pradesh, speaks volumes about both the epidemic of sexual violence and the respect for law in India. Such an incident cannot occur in a jurisdiction where a citizen is convinced that the law will play its role in preventing and punishing crime. India is not such a jurisdiction.

Who in India is safe when even judges are not spared? The ceaseless stream of news reports about incidents of sexual violence inflicted on women and children across the country, ever since the Delhi gang rape case in December 2012, has failed to generate a national debate about India's failed criminal justice apparatus, forget about the critical mass needed for a transformation.

That such things happen across India has been the best response Indian political leadership has been able to muster so far, amidst routine statements of the 'boys will be boys' variety delivered by regional politicians. And, that such statements are irresponsible is the only hackneyed response elicited from the international community, including the Secretary General of the United Nations.

At the core of the problem is not the prevailing culture of gender violence, something India shares with other countries in Asia. What is lacking in India is the ability of its criminal justice apparatus to deal with crime. The current state of crime control in India is not the sole fault of the country's law enforcement agencies. For, in addition to law enforcement, the responsibility lies with policy makers of the country and the judiciary. The state of the country makes it obvious that India's legal setup has serious problems.

The argument that the country has good laws but poor enforcement is a defensive position; legislators and academics alike often toe this line. The argument lacks merit. Forget about the litany of colonial laws in force promulgated to brutalize the population, or any of the ones shoddily drafted in the post-colony; the argument is poor for a simpler reason.

No law can be a good law if it is unable to be enforced.

When crimes of a dehumanizing nature are committed repeatedly, and no law enforcement officer or agency is held responsible and accountable for the recurrence of the crime, it exposes the fallacy in the argument that laws in India are good and the problem lies with enforcement. If a law enforcement officer does not fear accountability and hence fails or, as it often happens, refuses to intervene to prevent crime, the finger points to the Indian state, which allows a culture of irresponsibility among law enforcement officers.

A law enforcement agency that uses torture as standard operating procedure in investigations cannot be expected to apply a different set of standards for other crimes. In fact, the law enforcement agencies in the country are not expected to prevent, investigate, and curb crime. Had it been so, the Indian state's policing policy would have been catered to improving the capacity of law enforcement agencies to deal with crimes and to make officers accountable, as may be expected in any responsible society today.

Fault lies with the judiciary as well. When courts take a decade to decide cases and judges are insensitive to the concerns of average litigants that approach them, the first casualty is the concept of justice. The accountability of the judiciary literally ends at the convenience of each individual judge. In a country where the judges in the Supreme Court seek and obtain impunity against crimes they have committed, the court reduces itself to a market place. And, in a market place, bargaining is the norm. So, in such a system, where those mandated to prosecute crime themselves engage in it, when a crime is tried the criminal usually has higher higher bargaining power.

In India, the average citizen has no faith in the criminal justice system, and would prefer not to touch or be touched by it. Those who can afford to do so employ private security infrastructure. Despite the realities, it is pertinent to serve a reminder: it is the responsibility of the Indian state to ensure that every person in the country enjoys equal protection to his or her life and property. Unless this becomes state policy, no one in India's jurisdiction is safe.