The
gang-rape-of-a-23-year-old-physiotherapy-student carpet bombing has reached the
heights (or, is it the depths) of our polity, that includes not only the
institutions of governance but also their associate outfits, like the Supreme
Court Bar Association (SCBA). I think I can keep this post short, mainly
because SCBA has already done much of my work. Please refer to the scanned
image below, an article in The Hindu of December 23, 2012.
The
SCBA demands the “harshest punishment possible”. It is smart enough not to call
for death penalty by its name. Had it been explicit, its plea would have been
drowned in the cacophony of the blood thirsty calls for capital punishment from
everyone and her cousin – Sushma Swaraj included. But, the harshest penalty now
on the cards for rape is life term and the next rung on the ladder of harshness
is death penalty. Of course, there is an intermediate rung, life term without parole, but who will
pay for it? Hence, death penalty.
“[E]every [my emphasis; please note, no
qualifications] rape case should be treated as the rarest of rare case,”
leading, of course, to death penalty. I would like to refer to an article Executing the neighbor by Nilanjana S. Roy,
The Hindu, December 20, 2012. I will
refer only to the strap line, which goes,
“The popular view [hungry for death penalty] would send many
fathers, brothers and neighbours to the gallows since rapists are known to
victims in most cases.”
Oh
no, the SCBA refers, implicitly, only to those cases that gain public traction!
The headline case here has gone virally public. Ergo …
“[T]he
Evidence Act has to be amended to treat the statement or affidavit of the
victim girl to be admissible without cross-examination [my emphasis].” This
asserts that in rape cases, you are guilty if you are accused, and you have no
option but to be led to the gallows. Good for slaking the blood thirst of the society.
“All
rape cases should be decided by a Special Fast Track Court consisting of two
judges of whom one should be a woman.” I have a simple comment – it would have
been better had SCBA included Due Process
anywhere in this statement/demand.
“A
group of lawyers … held a demonstration on the lawns of the Supreme Court,” and
you have, thanks to this post, been a witness to the wisdom of this group. I
prefer to be wisdom-deficient.
Raghuram
Ekambaram
6 comments:
People in any profession should possess a certain degree of wisdom - at least be able to think professionally.
It's surprising that the lawyers are becoming highly emotional.
Personally, I think rape is a very serious crime; it's one of the most serious offences one can commit on an individual. It should be awarded a harsh punishment.
No Matheikal, this is a calculated outrage, to score brownie points. It is difficult for me to understand how rape is worse than stuff the Abu Garib prisoners went through, just as an example. I have not experienced rape, gouging out my eyes, cutting off my tongue and on and on. Therefore, I can neither deny nor affirm what you say about rape.
RE
The penalty for rape today is minimum 7 years that can either lead to life term or to 10 years.The Bill for amending CrPC right now in Parliament has proposed to delete the option of 10 years. It would be well to include death penalty in the rarest of rare case for rape as well while the Statute is being amended and Parliament is still considering it.
A rape victim is invariably medically examined and only when rape is medically established does the rest of the procedure starts. Therefore what does 'cross examination' of a raped girl add value to by way of evidence, except to make her feel ravished and go through the trauma once more, while the rapist could engage the best of the criminal lawyers to cross examine and confuse her?
I do agree that every rape case does not call for a death sentence.But that is not because many fathers/husbands/brothers would be sent to gallows...this argument is as emotional as the supposedly emotional and hence malignable call for death penalty.
I would want death penalty in the rarest of the rare case of rape, because otherwise conviction rates might go down and in the worst scenario, the inhuman demon might kill the victim after rape so that he himself is spared the gallows.
The response you gave to Matheikal was bizarre. I feel that you have diplomatically distanced yourself on ground of "non-experience" just because death penalty was being considered seriously, which you oppose. This, I am afraid, is as calculated an outrage as what you hold others guilty of.
If people are indeed 'blood thirsty' at the recent incident it is because they are not evolved enough to consider the demons in human form as human beings, and are angry with the establishment for not doing their duty of providing safety to citizens. They will be fine, thank you.
Well, that was also an emotional blast from you Aditi; but we are not here to measure ourselves on the emotion scale.
I never said that the identified rape victim is lying and therefore needs to be cross-examined. The cross-examination must be about how sure the victim is about the identity of the criminal. There have been many instances in which the identity parade has been found to have led to false identification. My simple question is why have an identity parade at all? The victim says, "He did it." Then, we go, "Hang him." Simple, inexpensive.
Cross-examination is a right of the accused. It is part of "Due process of law". You want that abrogated, do you? That is a can of worms. You do understand but deftly step aside the fact that it is the ACCUSED who stands trial and not the GUILTY. It is Due Process that delivers judgement on his guilt.
If you are justifiably worried about the victim feeling ravished and putting her through the trauma again, I have two things to say. One is procedural - mention what can be brought out in the cross-examination. This is what judges are for. Two, please do see the Jodie Foster movie "The Accused", circa mid to late 1980s.
More personally, your sentence denies me my humanity. I am equally concerned about getting the victim justice, but this side of state sanctioned murder. I am ready to bear the full expense of his life term incarceration, even if it should pauperize me.
When I call those who clamor for death penalty, and even as I characterize them as blood thirsty, I do not deny they are humans. But when you say that my position in this instance is driven "just because death penalty was being considered seriously , which you oppose." That is, my principle is divorced from humanity. I am not a human. OK, if I too am a monster disguised as a human, so be it.
Just suppose I say that rape is not any worse than getting your eyes gouged out, you would have responded, "How do you know?". Please do not deny that. I have posted a piece on abortion long time ago, and I was asked that question, "How do you know?"
I had to choose between two poisons and I chose one. That is NOT "calculated outrage". There is nothing BIZARRE about it except that I had the courage to take poison. There was no diplomacy behind it. What I feel about crime and justice, I have not got even an iota beyond.
You must recall that when I pointed out that if too many cases come under being "rarest of rare", then the crime becomes less rare, you agreed that the classification is wrong. Now, apparently not having come up with an alternative distinction between capital and non-capital crimes, you have gone back to rarest-of-rare.
All said, the way I have to understand is anyone who is not a father or brother of a girl, and husband is fair game in the rape crap shoot. Fine, I am safe.
RE
Raghu,
Actually you maybe correct, a rapist should not be hanged, instead he should be sentenced to a life long RI and on Sundays should be made to sleep bare body on an ice slab
I am perfectly Ok with what you say Balu.
RE
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