M R Shamshad

Whenever the criminal justice process fails, there is an outcry for new laws. We have enough laws. What we lack is the honest implementation of existing laws.

The Hathras case has once again put the spotlight on our criminal justice process. The facts of the crime and subsequent support from powerful interests in favour of the accused are very similar to the 2018 Kathua rape case, where two sitting ministers addressed a rally, largely of upper castes, in support of the accused. In Hathras, too, we saw upper-caste mobilisation in favour of the accused. The Kathua case was of a tribal girl, Hathras of a Dalit girl. The 2012 Delhi rape and murder case was gruesome, but no one sought to justify the accused. In fact, it resulted in an overhaul of rape-related law.

Initial facts in the Hathras rape show that it has a lot to do with hate and caste-related issues. The National Crime Records Bureau does not compile crimes within categories of hate crimes, lynching, khap-related issues, etc. A report by Amnesty International stated that “it is essential for the country’s penal laws to first recognise the bias behind the commission of such crimes and document the occurrence of such incidents — both of which remain conspicuously absent currently”.

The government responds to incidents like the Hathras case by transferring officials. Often, it is misleading for the public and arbitrary and frustrating for the concerned officers because they do not have any effect in ensuring the rule of law. Then comes arbitrary action through the police, for instance, invoking the most stringent laws on citizens. It has been reported that of the 139 people booked under national security laws in 2020, 76 are for cow slaughter, 13 for anti-CAA protests and only 37 for heinous crimes. These harsh laws are misused because the state is mixing up “national security” with general issues of “maintenance of public order” through statutory provisions, contrary to constitutional norms. At the same time, public order did not seem to be an issue in gangster Vikas Dubey’s case until he killed police officers. Though it was a case of police failure, people glorified the Dubey encounter.

The government’s control on the police is such that even the Supreme Court’s direction for the registration of FIRs for cognizable offences is not adhered to by the police system. In 2003, the Justice Malimath Committee recommended that the registration of FIRs should be the obligatory duty of the police officer and breach of this duty should become an offence punishable in law to prevent the misuse of power by the officer. Then came a Supreme Court judgment stating if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register FIR forthwith. Even today, for non-registration of complaints, one has to approach the courts of magistrates and the cases remain pending for months.

It is not a matter of non-action, but an issue of authoritative and arbitrary action on the one hand and not initiating the process of criminal justice altogether on the other hand. Action and non-action are more influenced by politics than the motivation to ensure the rule of law. That is why reports on police reforms and criminal law reforms, including the 14-year-old Supreme Court judgment in Prakash Singh, have been ignored by the political powers.

In 1886, the US Supreme Court in Yick Wo v Hopkins stated that “the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution”. B R Ambedkar spoke on the same lines while framing our Constitution.

Whenever the criminal justice process fails, there is an outcry for new laws. We have enough laws. What we lack is the honest implementation of existing laws. Now there is a committee working on reforms in criminal laws. Hopefully, the committee will suggest ways to make the police accountable, and free them from the influence of politics. This is necessary to save the system from embarrassments like the Hathras case.

This article was published in print edition of The Indian Express on 12th October, 2020
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