ANOTHER GREAT INDIAN BAIL OUT

Joginder Singh,
IPS (Retd.) Former Director CBI

It appears that all criminals, women molesters, robbers, thieves and others have been reformed, or they have left the country or become saints. Crime has disappeared from the country and the people have become totally law abiding. India  has become a model for the entire world, if one goes by the latest amendment to the criminal laws approved by the Lok Sabha on 23 rd December, 2008 . Our National Parliament 
passed  a total of eight Bills without a debate in 17 minutes.

The new amendment to the criminal law had already been passed by the Upper House, that is, Rajya Sabha. It will come into force after the
President grants assent to it, which is a mere procedural formality.

The new law divests the police of the usual arrest powers, in all cases, where the maximum possible sentence is seven years or less. Broadly speaking, the police will not be able to arrest thieves, receivers of stolen property, forgers, trespassers, extortionists, or credit card pilferers, or shoplifters, pickpockets, people indulging in affray, or beating each other, or rash drivers, or killers on the roads, or a large number of offenders indulging in corruption.

The seven years' penalty clause covers  a host of other offences, including attempt to commit culpable homicide (Section 308) or robbery (Section 393), voluntarily causing grievous hurt (Section 325), cheating (Section 420), outraging a woman's modesty (Section 354) and causing death  by negligence (Section 304A). Instead of arresting the accused, the police will now be obliged to issue him a “notice of appearance”, requesting the accused to appear before the police and “cooperate” with the investigation. Only if he fails to comply with the terms of the notice, the question of arresting him will arise.

May be this has been done on the grounds of morality and to prevent the police from misusing the powers vested in it. One cannot take exception if the objective is to ensure fair enforcement of laws and prevent the misuse of authority. But it is vital to examine, whether it is going to worsen the existing state of affairs.

The truth is that the respect for law and authorities is at the lowest ebb in our country. Law already being too liberal is not able to ensure justice, peace and tranquillity, to the common man.  Simply passing the laws and curbing police is not going to rectify the situation unless the entire criminal justice system and not only the police is geared to meet the increase in crime and criminalisation  in the country.  

The deterrent of effective and prompt punishment is more potent than merely passing the laws, which has thrown up its hands in curbing the crime. What the Government seems to have done is that it has placed the cart before the horse and not horse in front of the cart. I hold no brief for the Police. But whenever there is a spurt in crime or increase in dastardly terrorist attacks, both the Government and the public expect the police to bring the guilty to book promptly. The general expectation of the public is that the police should catch the accused in the morning, try him in the court in the afternoon and by evening the court should award punishment, so that the guilty gets his desserts.

We cannot get rid of the crime by decriminalising the well known and rampant crimes in the country, however noble might be our intentions as a Nation.

The biggest problem faced by an ordinary citizen is that he does not get justice, quite often in his lifetime, apart from the unaffordable and exorbitant fee required to be paid to the counsels. The result is the mounting arrears in the courts, at all levels, as the Government is either reluctant or unwilling or disinterested, to keep pace with the increased requirement of judicial infrastructure and staff, which includes investigators and prosecutors.

Every additional law passed, or an amendment made thereto adds to the work of the criminal justice system, whether it is  investigating a case or giving a judgment on it. The new law passed does not sanction, or include the extra manpower or staff or finances which are required to cope with the added work. It goes without saying that Legislature is only legislating morality all the time, which in other words means, making it easy for the criminals to go scot free from their acts of omission and commission.

Indeed the law, as it is, is weighed in favour of the criminals and criminal class. Even in High Profile cases (Priya Darshini Matto and Jessica Lal)  in the National Capital, the judges themselves remarked that they were convinced that the charged accused had committed the  offence, but had to let them off, for lack of evidence, which the law demands.  Of course, the decisions were reversed in the higher courts. 

Instead of descending heavily on the criminals, newer and newer escape routes, wittingly or unwittingly, are being created for them.  The main reason for this is that those who make laws or recommend them sit in the comfort of air conditioned room, and are totally innocent of what is going on in the field. I still have to see the Law Commission visiting a police station and reviewing in details, as to how and what difficulties an investigator 
faces in collecting evidence or why people are not forthcoming to give evidence. No Law Commission has visited a trial court and sat through the trial to get a first hand idea of the things on the ground.

The upshot is that we get the above kind of laws which are based on how things should be and not how they are and how they should be rectified in favour of the society and the victims?

The outcome is that the recommendations made are irrelevant to the existing situation in the country and the position on ground level. The acid test of any law should be whether it will increase criminal activity in the country and whether it will embolden the criminals. 

Rights guaranteed in the Constitution of our country are sacrosanct and they are the same as human rights. But surely, it could not have been the intention of the framers of the Constitution to allow criminals, robbers, thieves, dacoits, women and children molesters to use them to escape the noose of the law. Incidentally, in 2007, for which figures are available from the National Crime Records Bureau, a total of 19,89,673 cognisable  cases under the Indian Penal Code were registered and if  we add the cases registered under Special and Local Laws, which are also cognisable, the total figure comes to  57,33,407.

It appears that an immoral thing in passing such laws has been done for moral reasons. It better be held back before the things go from bad to worse.

It should not appear that by passing the new laid back and non-chalant  law, the Government has given a New Year  2009 gift to the criminals, crooks, and wrong doers.