As expected, the whole country is livid and agitated over the number and nature of rape cases - one more horrifying than the other. Supercharged emotions impel irrational demands all the way upto public lynching, because the levels of fury and revenge invariably blind. That this is an offence which deserves zero mercy is undoubtedly accepted and the punishment just has to be deterrent, quick and certain when facts are fresh in the public mind as our Supreme Court said as early as in 1954. Unfortunately, the conviction rate in rape cases is exceedingly low (30%) because our centuries old legal system wants crude evidence such as eye witnesses etc. which will never be available. The Indian Evidence Act, Criminal Procedure Code and the Indian Penal Code require scientific amendments and not knee jerk changes.
In this category of cases forensic evidence is paramount right up to DNA matching. For this what we need is a new generation investigation which today’s police force is incapable of. Specialist training will have to be imparted to a rapid action investigative unit specially set up all over the country to handle this class of offences and the moment this is done it will automatically bring down the incidents of rape and molestation cases because this force will have to concentrate more on prevention rather than on investigation. For over a decade now I have insisted on cyber surveillance which can cover every inch of the continent, but it is equally important to design response units which will act within minutes. My recommendation is that every such offence will have to be investigated under the day to day supervision of a Judicial Officer not lower than the rank of District Judge as is the case under the French Legal System. In the Jessica Lal case I had recommended that there should be a re-trial under the day to day supervision of the then Chief Justice of the Delhi High Court, after the accused had been acquitted because of a corrupt investigation and on the second occasion the results were fast, effective and the trial ended in a conviction, though the accused were rich and powerful. Under our present system the offenders who belong to this class are not even prosecuted!!!
The forensic evidence has to be collected with utmost speed because all samples right upto blood deteriorate because of the delay factor. High calibre forensic units will have to be set up all over the country and it goes without saying that the quality of these units will have to be state of the art. These units will also assist the investigation in all other criminal cases when they are not dealing with rape and molestation.
Much has been said about Fast Track Courts and this country is indebted to my very dear and esteemed friend the late Mr. Arun Jaitley who was instrumental in setting them up. Unfortunately, in practice the load on the Fast Track Courts is so heavy that the cases assigned to them invariably take longer than in the regular Courts. We have specialist Courts in other fields and there is no difficulty in setting up designated Courts to specially deal with this class of offences. I would strongly recommend that the Judges and Prosecutors will have to be handpicked not only for their knowledge and integrity factors but more importantly for their mental makeup. To quote two examples, one of my colleagues in the High Court professed that rape was a big joke and that females enjoy it and another one told me that he could never agree to a death sentence because it would haunt him for the rest of his life. The attitude of the Judges in these Courts will have to be carefully screened. When the Green Tribunals were set up,
I recommended to the Government that only dedicated environmentalists should be put there - this was not done and the results have been pathetic. In Mumbai a large number of trees have been axed after sanction from the Green Tribunal and in Mangalore a whole forest has been cleared because the Green Tribunal allowed it. We cannot afford this to happen.
Lastly, the vexed question arises with regard to the sentence.
To my mind, condign punishments must be awarded with only one Appeal to the High Court with a mandate that the Appeal must be disposed of in not less than 30 days and if a Mercy Petition is permitted, there should be only one and that too must be disposed of within a period of 30 days. Keeping this class of human beings alive at the expense of the tax payers for long periods of time is contra indicated. They are perverts, incapable of any form of reform and dangerous to Society and if the legal process takes years and decades, delay is pleaded as a ground for commutation of sentence which reverses the entire purpose. There will still be a certain number of acquittals and as is the case in other parts of the world extreme caution will have to be exercised by Society - in the West there is total ostracism of paedophiles and sexual offenders because they are a lethal danger to Society. In Russia such persons are sent to Siberia where the temperature alone takes care of any repetition of the offence..!!!
I now come to the most controversial recommendation which is gaining ground universally. In earlier times, as also in certain parts of the world where the doctrine of eye for an eye, tooth for a tooth still rules, this class of offenders are castrated. This can be surgically done and does not have to be at the hands of a butcher. The reasoning is that such human beings have forfeited the right to reproduce and it would be dangerous to allow them to do so, but it will also take care of the possibility of any repetition of the offence in the event of acquittal at a later stage for whatever reason. Some years back at a very largely attended Seminar in Bengaluru over which I had presided a leading lady lawyer strongly justified this on the ground that the law itself justifies the offender being deprived of the weapon of offence..!!!
— Justice Michael F. Saldanha is a retired Karnataka High Court Judge...