Friday, May 25, 2012

Presumption of Guilt

More and more, the Indian state is throwing up its arms on critical executive functions.  It has already given up on infrastructure (private toll roads), electricity (install your own generators), water (install your own water systems), health (public hospitals are in abysmal shape), education (nobody, who can afford not to, sends their kids to government schools), and so on.

But I am appalled to learn that it is giving up on law and order.  The momentum is unmistakable.  With more and more murders, rapes, child abuse cases piling up in the country, and with the bottom-of-the-barrel prosecution ability of government lawyers, the government is increasingly presuming guilt and asking the defendants to prove themselves innocent.

The reasoning probably is: we can't be bothered to build a water-tight case, better ask the defendant to prove that he/she is innocent.

This is nothing but a travesty of human rights.  And as the Indian populace is helpless, frustrated, angry and desirous of quick solutions, they are welcoming this draconian direction in our jurisprudence.  Of course, as long as this direction doesn't hit them personally.

There are genuine problems of increasing crime and corruption.  But to presume guilt based on a mere complaint (which may be mala fide) is a sure recipe for a police state, especially since the act of complaining is a privilege.  Since the police registers your complaint only in exceptional circumstances (based on a bribe or a connection), to enact such laws is to give untold power of harassment to privileged individuals.  If you get into the bad books of an influential person in India, with these laws, not even God can save you.

There already exist a plethora of such laws in India.  The dowry death law, the law against possession or eating of beef (currently enacted in Madhya Pradesh), the various laws about rape, and so on.

The most recent example is the Protection of Children from Sexual Offences Bill (2011).  Child sexual abuse is a serious issue and needs to be firmly tackled, but you cannot throw the burden onto the defendant.  It is the state's job to protect its citizens, and if a child is a citizen, so is an accused (until proven guilty).  The state cannot privilege one set of citizens at the cost of others.

The bill was passed by "voice vote" in the Lok Sabha, which makes me believe that many MPs might not even have browsed through the bill.  Of course, it is politically incorrect to rail against a bill which protects "helpless women" or children, but as a concerned citizen pessimistic about the future of human rights in India, I cannot remain quiet.

Section 29 of the bill needs to be condemned in the strongest possible terms:

"Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed the offence, unless the contrary is proved."

If you think draconian laws are needed in India, then we might as well invite the British back.


Kislay Verma said...

In recent times, private enterprise in India has surged forward so strongly that the state has not been able to keep up. The Indian story is that of individuals, not the govt., never mind the political rhetoric. With economic changes and consequent social changes piling on, I don't think the current govt. has much of an idea of what to do.

Even if we discount the draconian laws, the law and order dysfunction shows up most clearly (for me) in the state's response to the issue of safety of women in the NCR region. When the police claims that women require a 'permit' to stay out of doors at a certain time, you know something is terribly, horribly wrong.

Although in general I believe that a government (especially a democratic government) governs the best when it governs the least, I agree with you that some functions can be abandoned to the free wheel. Education, law and order, and defence MUST be top priority on the govt. list. Economics we can manage.

Kislay Verma said...

Comment moderation? Really?

Anonymous said...

Addition to your point on child abuse law..

The new sex code for teenagers

Radical provisions of the new Protection of Children from Sexual Offences Act (PCSOA) are both empowering and threatening to teenagers accustomed to mixing freely with others.