TORT BY THE LAW OF TORTS

The resultant of the implementation of laws should be seen retrospectively and not prospectively. Law makers are lagging the foresight in structuring new laws. There is an immediate need for reiterating the existing law (so as to make it more effective) but there is no need for brand new law for any offense. Altercation/amendment means overhauling and to make sure that it is enforced so as to serve its very purpose. Though obligation for meeting the ends of justice rests on the judiciary however ironically they are bound inside a cubicle of protocols. When the cubicle itself is constrained with possibility of misuse how can the judges alone implement fair trials!

For instance if I talk about the draft bill for ‘Sexual Assault’ law which is designed to replace section 375 IPC (rape), it contains drastic irregularities. And believe you me, if this is cleared in its present form, its going to be hell in India. The scope for misuse can readily be seen by its language. For example, the new draft bill criminalizes insertion of any object inside the mouth of a girl. It means if a person (might that be father, brother or any blood relation gentleman), would insert his finger inside the mouth of the girl, it would be called sexual assault. Strange!

Rape is physical invasion and carnal knowledge thereof, of a female by a male, with such a force (mental or physical) which the female cannot oppose. When a female is in a position to decide freely (mentally as well as physically) to allow or disallow the male to have physical relations, then its only sex for pleasure and not rape. Our present courts consider cases of ‘promise of marriage’ as rape. A girl, who is matured, able to understanding the consequences of the act and has the option to say NO, opts on her own free will to indulge into sexual relations outside the matrimonial alliance. Now if the boy is not able to marry her due to any personal rational reason, how can that act (which the girl enjoyed) be called brutal, inhuman, ghastly, abhorrent, in short ‘rape’. The male trusted her and entered into a fiduciary relation and believed that she has affirmed to indulge into the act on her own as she herself desires it. But then, she suddenly turns into a devil and exaggerates the complaint and even goes to an extent (in some cases) that the male had forcibly raped her first time and then she decided to comply thereafter. Is that the purpose of law, to find a perfect matrimonial match, indulge into sexual relation and compel him to contract a matrimonial alliance?

When non-technical (not a law graduate) person like me can see ambiguity in the law, how these highly qualified people (law makers) cannot foresee the infirmity in the draft bill? It is again interesting to note that our law minister Mr. Moiley is a law graduate by himself. Moreover he can readily take services of the highly experienced advisors like Attorney General of India, Solicitor General of India and many others. But still he ended up in making a biased law? Seems this is why we call the law – ‘blind’.

We are already suffering at the hands of the law which has given sacred powers to the police which misuses it in abundance. I believe that about 70% – 80% of the time, police misuses its powers as vested by the constitution and common man has to suffer. For instance I recall the shameful incidence of Delhi Police when they framed a mason (to take revenge) in 18 different cases out of which one was of ‘rape’. After a battle of around 15years he was cleared of 13cases and Delhi High Court felt the need to rescue and provide some sort of relief to the aggrieved. Hon’ble Dr. Justice S. Murlidhar awarded a compensation of Rs. 6Lacs (approx.) for the trauma and torture, mason had gone through. But I feel this was not enough. Damages were paid off in civil nature but what about the criminal damages like jail term of 6years and mental trauma and physical assault? In my view such police officers ought to have been punished with imprisonment of atleast 6months each, whoever was involved including DCP who challenged the acquittal of the poor mason and even went to an extent of firing & flaunting his position to the lower court judge who exonerated the mason.

Why an amendment is not brought for the very cause of such crimes – Police? They are the perpetrators at grass root level. Anyone who commits a crime does not feel scared of this police but on the contrary an innocent person who has been falsely framed in a malafide case, fears for his life. Where we should feel safe when police arrives (protector of peace), we feel scared. What a pity!

It’s not actually women who are being targeted but it’s actually the helpless and innocent citizens of India who are being targeted and made a victim by the hands of the ill fabricated law itself. Recall the Ruchika case. Poor girl was subjected to continuous torture for about 3years to which she succumbed and committed suicide still the molester was let alone with 18months jail term only. No charge was framed for abetment of suicide. Had the authorities acted in a similar passion (including media) as they are working today, the girl would have been alive to see justice finally delivered.

I agree there is an urgent need to amend the law but the amendment should not give way to misuse. 100 criminals acquitted would be an aberration but 1 innocent convicted can never be acceptable. Innocent until proven guilty is only in the books but in reality, accused is treated like convict. Despite increasing the number of police stations, crime is on an all time high, in (high security) Delhi. It’s not because laws are week, but it’s because of factors like improper urbanization, misuse of law by criminals, abhorrent practices by police and political motives. The number offs suffering at the hands of the law itself are more than those who are protected. Section 498A IPC was enacted for securing women in their households, but ironically women themselves started misusing it. It was abused to such an extent that Delhi High Court felt the need to take ‘suo motu’ cognizance and mandated that an officer not below the rank of DCP should grant/approve before the local police can arrest in such cases.

We want peace and not police. We want innocence and not idiotism. We want equal rights and not biased laws. It’s my most humble request to the law makers that they should see the probability of misuse of new laws and then decide to bring it into force. Otherwise, the resultant is more ‘tort’ by the ‘law of torts’.