Law, Crime and Deterrence
Posted on 1-February-2016
In December last year the youngest of those sentenced in the case of a notorious gang rape in Delhi in December 2012 was released from a correctional facility for juvenile criminals to which he had been sent as he was under 18 years of age at the time of the crime. His conviction, sentencing and release all took place under the extant law about juvenile criminals. The High Court of Delhi and the Supreme Court of India upheld the release order. All this was as it should have been. What was not normal and therefore difficult to understand was the public protest about the release. Activists came down on the streets, television channels virtually encouraged protests and even brought the mother of the 2012 rape victim on camera who not only expressed her disappointment at the release but called for more stringent punishment for such people. The Delhi Commission for Women made a night time appeal to the Supreme Court. How much of all the noise was driven by sentiments of revenge and how much merely posturing for one purpose or the other is difficult to say, but the noise shut out the possibility of quiet, sober reflection. In fact, ever since it became clear that this particular accused would be tried and sentenced as a juvenile and therefore more leniently than the others different groups have have been calling for harsher punishment. In response the Indian parliament has now amended the law which allows for juveniles above the age of sixteen accused of serious crimes like murder and rape to be tried and punished in the same manner as adults.
After the December 2012 incident some people asked for death penalty or chemical castration for criminals like those who committed such crimes. In response to the public outcry, Government of India appointed a commission under the chairmanship of a former Chief Justice of India which while ruling out punishments like castration or death penalty for rapists, recommended among others a minimum of twenty years in jail instead of the existing seven for a rapist. There were other recommendations too such as making stalking, inappropriate touching or use of of obscene language and marital rape punishable offences and campaigns for gender sensitisation. Yet despite the outcry and despite the elites' desire to do something to prevent recurrence of crimes like that of the 2012 rape case, there have since then been many widely reported cases of rape and gang rape, rape and murder of five year olds--none of which attracted the same amount of attention as the 2012 incident. There is no evidence that there is any decrease in the number of rape cases, reported or unreported.
Why rape happens is a question to which neither psychologists nor sociologists have clear and agreed answers. No simple answers such as prevalent patriarchy and the latent misogyny that goes with it, or the temptations that poor aimless youth from rural India coming to towns are subjected to or many other similar explanations are complete. Nor is it a class phenomenon. There are at least four incontrovertible facts: men find women sexually attractive, particularly when they are young; males are prone to be aggressive in their sexual advances towards women; males of all kinds and classes take some women to be fair game--consider the widely reported phenomenon of western white women being groped or touched inappropriately in urban middle class settings in India--either because of the way they dress or because of their comportment in public or, as in rural India, because they are poor, helpless, low caste or otherwise easily exploitable; and, finally there are criminals in all kinds of places and in all societies. The question of rape cannot be dealt with as separate from the question of crime in general. But even as psychologists can debate for long about what makes a criminal a criminal, practical action is still a necessity.
Prevention of crime and meting out punishment is one of the main concerns of all societies. For this states have laws, law courts and police forces armed with powers to investigate and prosecute law breakers. This machinery of the state never succeeds in eliminating or preventing crime altogether: the best it can hope to do is to restrain and control crime to the maximum possible. The more effective this machinery is the less the crime. It is not only the harshness of punishment prescribed by the law but also, perhaps more so, it is the high probability of being caught by the police and being punished by the courts that keeps criminals in check. In all cases of crimes that attract public attention and arouse anger in India, most people cry for harsh punishment--in the wake of the December 2012 incident some people were even asking for summary execution of the accused forgetting that respect for the law also implied respect for due processes. Not many in the protesting crowd were prepared to quietly pause and ask the question whether the real problems in India were not the laws on the statute books but less than effective policing, sloppy investigation and the inordinately long time that trials, convictions, sentencing, appeals and final closure of a criminal case take. These last are the major problems that India has to deal with. Those in authority--the executive, the higher judiciary and at least the more enlightened among India's politicians--know this but over the years very little has been done to deal with these problems. On the other hand the habit in India has for a long been to pass a law to deal with specific problems, even social problems, and then do nothing to really solve the problem, almost as if laws are passed to salve the consciences of the rulers.
Apart from the law and law enforcement another effective deterrent can come from a widespread culture of respect for the law. It is an unpleasant social reality in India a that cavalier attitude towards the law is so endemic--it can go from non-observance of traffic rules to cheating in examinations to getting round established systems for recruitment of people to encroachment on public land to breaking wild life protection or environment protection laws. There are people who even vaunt their disregard for the law as a sign of their status and power--a relative of mine who has stashed a pile of money from bribes once told me that only fools observed rules. Then in some cases religious, regional, caste and ethnic groups are ever ready to rise in protest if one of their own gets punished even for right reasons and with due regard to principles of justice. Widespread disregard, even contempt for the law thus is an ideal manure for breeding criminality. There are no easy remedies other than a long-term, sustained effort towards education and strict, impartial implementation of rules and laws that can in the long run change people's habits and attitudes.
Laws to be effective must be made after careful, cool deliberation. Making a law in a hurry in response to popular frenzy is the worst way to do it as happened in the recent amendment to the juvenile justice law. Any widely applicable law, like the juvenile justice law, has to be general in its application and cannot be made to vary to suit a specific case. As the law defined a person less than eighteen years of age as a juvenile, the youngest accused in December 2012 who was a few months shy of eighteen years at the time was treated as one--the atrocity committed by him did not make him less of a juvenile. Yet the protesting crowd--most of them were urban, educated and middle class and not a bunch of illiterate, rustic mob--were arguing precisely that. In response the parliament has effectively lowered the age-limit for a juvenile to sixteen years in the case of serious crimes. This raises the question whether if a fifteen and half year old committed a triple murder in cold blood, the law should be changed to lower the age limit of juveniles to fifteen years. It would have been a different matter if the law had been changed as a result of studies that showed that a person of sixteen had all his faculties so fully developed that he could be held fully responsible for his actions. After all not long ago in country after country the voting age was lowered from twenty-one to eighteen years. Among the many changes Indian society needs is a change in the way it deals with the law and law breaking.