The long arm of the state: Draconian laws often ignore the real issues

President Ramnath Kovind gave his approval to two Ordinances last week, the Fugitive Economic Offenders Ordinance 2018 and the Criminal Law (Amendment) Ordinance, 2018. The former empowers the government and its agencies to confiscate properties and assets of those economic offenders who flee the country in order to avoid facing Indian courts. The other Ordinance introduces death penalty for anyone convicted of raping a girl aged below 12. The Fugitive Economic Offenders Ordinance appears to be a knee-jerk reaction to criticism that the government has been facing after Vijay Mallya, a wilful defaulter, flew out of the country evading arrest. Things became worse when jeweller Nirav Modi, accused of swindling billions from a public sector bank, did just the same earlier this year. The Ordinance on rape, too, tries to assuage the massive and widespread outcry about the safety of women, especially the girl child, after the brutal rape of an eight-year-old girl from Jammu. The central element common to both the Ordinances is the government’s increased reliance on draconian measures to improve deterrence. However, a more careful examination of the two Ordinances and, indeed, the gaps they intend to bridge, shows how they are not only removed from the ground realities but also are more likely to do more harm than good. 

Take, for example, the issue of death penalty for those accused of raping young girls. For one, it is more likely this will lead to more rape victims being killed. Why would a rapist leave the victim alive if her testimony is likely to get him a death penalty? Also, the death penalty might well inhibit reporting of the crime when the rapist is a close relative or otherwise well known to the family of the victim, as is the case in 94 per cent of all reported rape cases. Latest national crime data show about 90 per cent of child rape cases were pending trial in India in 2016, only 28 per cent of such cases ended in conviction, and there is a 20-year backlog in bringing cases to trial. The fact is that the implementation of the extant Protection of Children from Sexual Offences (POCSO) Act, 2012, is still incomplete as many of its basic provisions are yet to be put in place. Similarly, the existing fast-track courts are anything but fast; worse, the acquittal rate in such courts is higher than in normal courts. In fact, acquittal rates are as high as 75 to 90 per cent. 

There are many reasons for such dismal statistics — an alarming lack of basic infrastructure (trained women police officials, for example) and the shocking levels of bias against women, including young girls, in our society. The case for the Ordinance on fugitives is also weak. Instead of addressing the adequacy of prosecution ability of the state and improving the conviction rate, the government is trying a shortcut by using the threat of confiscation of property. Instead of improving conviction this move will only lead to more rent-seeking. After all, given that cases go on forever, what is the worst that can happen to those who do not run? Both Ordinances, thus, provide an opportunity to reflect on the unintended consequences of resorting to draconian laws. The long arm of the state should not get deeper into people’s lives.