Dr JAVED JAMIL
IN the wake of any heinous crime, cold blood murder or sexual assault, political parties and the media start berating the state or central governments. If the crime happens in a state governed by the Bharatiya Janata Party (BJP) or any of its allies, opposition parties come into action and start blaming them for their utter failure in maintaining the law and order. And if it happens in a state ruled by Congress or INDIA bloc state, the whole National Democratic Alliance (NDA) and its favourite media swing into action labelling the state governments and the ruling parties as promoters of crimes. The truth, however, is that while the governments cannot be exonerated, especially when the crimes have some political connection, the real blame falls on the legal system that controls the larger world today including India.
Justice is the pivot around which peace and harmony revolve. Justice is rightly believed to be an essential ingredient of the global systems for the long-term goals of peace, security, equality and harmony. But if justice itself is imprisoned by the very forces that claim to be its biggest protectors, the talk of justice would be reduced to mere display of nice words. Unfortunately, this is what has been happening in the so-called modern, advanced and civilised world. Despite trillions of dollars involved in the system of law and order, despite tens of millions performing the law enforcing duties, despite the tens of millions of counsellors that vouch to defend justice, despite millions of judges that preside over tens of thousands of courts, despite tens of thousands of prisons that are housing tens of millions of the alleged and convicted criminals, lawlessness and crimes are zooming horrendously with every passing day with billions of men and women being subjected to numerous kinds of serious crimes every year. How can then we call it even a satisfactory, what to speak of an excellent system of law and justice?
Coming back to India, in 2023, 45,544 murders were under investigation by police, of which charges were framed in 24,575 cases; and 40,393 rapes were under investigation by police, of which charges were framed in 24,582 incidents. In 2023, 2,72,198 murders were under trial in courts, of which conviction was given in 7,181; and 2,03,067 rapes were under trial in courts, of which conviction was given in 4,464. The murder conviction rate was 37.7 and the rape conviction rate was 22.7 in 2023.
As per the National Crime Records Bureau (NCRB), the number of reported rape cases in India was 29,670 in 2023 and 31,516 in 2022.
According to the NCRB report 2024 titled “Top 10 Indian states with highest crime rate” published in Indian Express, crime trends have shifted noticeably across the country. Following are the 10 states with highest crime rates:
Top 10 states with highest crime rates
Rank State Crime Rate (per capita)
1. Uttar Pradesh 7.4
2. Arunachal 5.8
3. Jharkhand 5.3
4. Meghalaya 5.1
5. Delhi 5.0
6. Assam 4.4
7. Chhattisgarh 4.0
8. Haryana 3.8
9. Odisha 3.8
10. AP 3.6
Despite the involvement of huge infrastructure, if crimes are becoming a norm, the simple reason is that, like every other field of governance, legal system is also guided by the forces of economics. For them, crimes as well as litigation and punishment, all are tools of marketing.
Ideal Scenario
The legalists can boast of the greatness of legal system prevailing in the world; but the truth is that a system can be perceived good only if it produces good results. If the legal system fails to minimise the crime rates, and in fact leads to unbelievable zoom in all kinds of assaults, corruption and exploitation, it can be called anything but successful or ideal.
The law can be regarded as the most important faculty of social organisation. Without an adequate and effective legal system, civilisation cannot survive. The law is essential to ensure security of each law-abiding member of society, to provide him/her freedom and opportunity to fulfil his/her needs and desires within the prescribed boundaries, and to isolate and, if need be, to eliminate those elements that pose serious threats to the life, property and honour of others.
In an effective legal system, the economic fundamentalists found it difficult to pursue their exploitative tactics. So, they mobilised public opinion, through skewed logic, all over the world in favour of a legal system that does not adequately punish the convict, and that allows delay in justice, which more often than not results in denial of justice. This has led to a steep rise in crime rates in all those countries where such legal system is in operation. It is high time now we recognised the vices of this system and reconsidered alternatives that would establish and maintain a crime-free (or low-crime) society.
Impact on Health and Peace
The legal system must also take care of the effects of various practices on health and peace. There cannot be a better criterion, acceptable to all irrespective of their belief systems, than the impact of the substances and practices on health. Anything that seriously endangers the lives of the people or causes severe problems for families or society is to be banned. The constitutions must have not just Fundamental Rights and Fundamental Duties but also Fundamental Prohibitions; and impact on health and social security should be recognised as the guiding principle for all of them.
If the legal system has to produce positive results in terms of reduction in crimes, the first major requirement will be punishment equal to the crime.
The punishment must depend upon the effects of a particular act on individual, family or society. Murder and rape are the most heinous crimes; persons committing them have no right to live. A murderer, if he is not convicted, or receives punishment of imprisonment, is often emboldened to repeat the crime. The ability of most of the murderers to escape the gallows encourages potential criminals. Presently, in majority of the countries including India, death sentence is awarded in only “the rarest of rare” cases. It must instead be given in all cases, where the charge has been convincingly proved, except where it has been committed in self-defence or unintentionally, or the heirs of the deceased are ready to pardon him, with or without any compensation.
Similarly, a rapist must be executed in full public view, except when the victim is ready to marry him. Adultery is a big crime, and must be recognised thus, because it increases the mortality and morbidity in the population due to several sexually trans-mitted diseases, leads to devastating effects on the family, produces social tensions of different kind and enhances the incidence of severe crimes like murders and suicides. Severe punishment must, therefore, be given to the adulterers, both male and female. The persons involved in commercialisation of sex, drugs, and other addictions must also be given exemplary punishments. Apart from these crimes, thefts, robberies, bribery, gambling and other economic offences must also be included in the list of fundamental prohibitions and must be adequately punished.
Crime and Punishment
It is of crucial importance that the rigorousness of punishment matches the seriousness of crime; if it is less, it would encourage the criminals. It must be remembered that only a punishment equal to crime satisfies the victims, and if justice is denied to them, they often tend to seek alternative modes of revenge. Now the question arises: who should have the right to pardon? The propriety of justice demands that the right to pardon must rest neither with the judge nor with the head of state but with the affected party (or his/her heirs). The duty of the court should be to establish the nature of crime, and involvement of the accused; following this, the judge should pronounce the maximum possible punishment that can be given under the given circumstances in accordance with the provisions of the law. The aggrieved party may then inform the court if it wants the maximum permissible punishment to be carried out or intends to dilute it or has decided to altogether pardon the convict. If an accused is set free or given an inadequate punishment by the court, he may feel emboldened to commit another crime or further harass the aggrieved; if, on the other hand, his punishment, despite his crime having been established, is diluted or nullified by the benevolent intention of the aggrieved, he would feel extremely grateful towards them, and this positive gesture from their side may have a rectifying effect on his morals. But at the same time, this needs to be assured that the “aggrieved party” is not threatened or lured to pardon the convict, especially in cases of serious crimes like murders and rapes.
The time has come when the role of prisons in alleviating crimes should be properly scrutinised; it requires hardly any statistical data to prove that this system has been a total failure. Imprisonment reforms very few criminals and hardens most of them. It is also a great financial burden on the exchequer. In addition, the families of prisoners, too, suffer owing to the fact that they (prisoners) are in no position to earn, except whatever little remuneration they are given in jail for their hard physical work. Instead of being long, slow and ineffective, punishment must be short, exemplary and effective, from the point of view of their ability to reform the convicts and also from that of the cost of the punishment. Instant or short-term punishment will help in many ways. It will not be a burden on the government and society; it will not keep the convict away from his/her family for long; and he will feel encouraged to join society as normal citizens. The punishment should be physical, economic or social rather than long imprisonment. He may be given some form of physical punishment without causing any disability or permanent damage and may be asked to show his attendance at a police station or reform centre on a regular basis. He may be fined or asked to give a specific percentage of his income either to the victim’s family or to the government, for a certain period of time. Some kind of social punishments may also be given, such as doing part time voluntary work in an organisation working for the poor, sick and disabled.
Imprisonment should be reserved only for limited number of convicts, and wherever it is prescribed it should be after conviction and not during litigation. The exception can be hard core criminals who can be dangerous for others if not imprisoned. For civil suits, there should not be any imprisonment, social and economic being the ideal forms of punishments.
Role of Attorneys
There is one more area in the present legal system that needs scrutiny: the role of attorneys/advocates. The advocacy for the client rather than justice, and for the falsehood rather than the truth, does not merely cause delay in judgment; it also adversely affects the view of the court. The lawyers, habitually, suppress and/or distort the facts to save their clients. Two partisan views do not, necessarily, lead to the truth. The court has no option but to rely on the evidences and arguments advanced by the two contending lawyers. Would it not be better to provide the judges with a staff of nonpartisan investigators, paid not by the clients but by the state? The legal specialists may thus be made to serve justice rather than private interests.
Unfortunately, the judges too in most cases have been reconditioned to believe in a specific way. In their academic career, they are taught what the global powers want them to know. The whole intellectual environment is shifted in a specific direction through media. People including judges are exposed to the only selected issues and that too in a specific manner suited to advance the cause of the governing ideology, which is almost always driven by the forces of economics. In many countries including the United States, the judges to the higher courts are nominated on the basis of their ideological inclinations. A judge with known aversion, for example, for abortions or homosexuality is unlikely to be nominated.
Swift Judgments
A just, swift and effective legal system is a must to ensure social order. A good legal system must be able to drastically lower the crime rate. This will encourage the duty-bound common people and the upright officers to fearlessly do their work. The economic exploitation of the weak would then surely receive a big jolt as the nexus between the criminals, politicians and the economic fundamentalists would not develop. The effectiveness of a system can only be judged by the results it produces. If a system fails to achieve the results for which it was created; and instead, it increases the problem with numerous adverse effects on the people, it needs to be dismantled without delay. It needs to be replaced with a system where the results are good.
This is nothing but travesty of justice that the judgments are almost always pronounced in years, even decades. This is cruel not just for innocents but also for criminals who have to spend this time in a period of utmost uncertainty and in the process they have also to bear huge physical, economic and social cost of the trial. In all but few cases, litigation should not last more than a few months. Innocents should be duly compensated for the amount of pain they had to suffer on account of the trial.
In India, as already said, rather than fixing the blame on state governments, judicial system needs to be reviewed. Of course, there are crimes linked to the ideologies or interests of certain political parties and governments. But if the judicial system becomes strong, unbiased and effective, even these kinds of crimes will show a decline.
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Dr Javed Jamil is an Islamic scholar and author. He has over two dozen books to his credit.
