Thursday, May 2, 2013

B.D.R, A.D.R. or Anno Domini


Dr M N Buch, 
Dean, Centre for Governance and Political Studies, VIF

The Christian era is marked by two initials, B.C. or Before Christ and A.D. or Anno Domini, which means in the Year of Our Lord. However, when we read the newspapers today it would almost appear as if these two initials have been replaced by B.D.R or Before Delhi Rape and A.D.R. or After Delhi Rape. In the B.D.R. era rape cases were reported somewhere on the seventh page of a newspaper as a tiny item, but in the A.D.R. era right from the front page headline every page has mention of some rape case or the other in some part of the country. Were we all celibate saints in B.D.R. and in A.D.R. have we all become a nation of satyric, priapic devils from whom no woman is safe, especially if she is a child?


In every society and in every religion the use of force against women for fulfillment of sexual desire has been looked down upon. In Roman legend the rape of Lucretia by the son of Tarqinus Superbus, the man who ruled Rome, led to her suicide and this, in turn, caused the Romans under the leadership of Brutus to rebel against the Tarqins and expel them from Rome. The man of character, Ram, the chaste woman, Sita and the Immaculate Conception have always been the ideal and chastity and virtue have always been considered the hallmarks of a civilised society. What, then, has happened to this society in A.D.R. so that we are now projected as a nation in which no woman is safe? Is it a sudden epidemic of machismo in which rape and conquest of women are the only true proofs of masculinity or is the phenomenon much deeper, more serious and indicative of moral degeneration which should cause us much worry? Is it a build-up of sexual frustration in a society where men and women do not mingle very freely and, therefore, male sexuality has to be satisfied through rape?

Actually, what is being experienced and reported now is part of a very complex situation in which a number of factors are operating simultaneously. Traditional society had a value system, partly religious, partly social in which, because society was close knit, there was an extent of social pressure and peer pressure which made people behave in a particular desirable manner. This is not unique to India because other societies also had and have their own norms and mores of behaviour. For example, Western society has its traditions and value systems which may appear to us to be excessively liberal but which operate within a given set of rules. It is said that in Britain the morality of the lower classes was that before marriage there was promiscuousity but marriage was a sacrament which thereafter dictated complete faithfulness. The middle class was following the middle path. So far as the upper class is concerned, being at one time the ruling class it made its own rules and had its own code of conduct. Before marriage virginity was the rule and though young men and women met in good universities, made their social debut through chaperoned parties and events and were encouraged to make marriages which united families and remained within the same class, after marriage promiscuousity was not frowned upon. In fact if we read what Evelyn Waugh and the Mitford sisters wrote the country seats of the aristocracy were the venues of the goings on between men and women of this class after the house closed at bed time. The West has always expected a free and easy relationship between men and women, but on the basis of mutual consent. In India our norms have been different but here, too, factors have been at work which have disrupted old equations. The breakup of the joint family, urbanisation and rural-urban migration and the new heterogeneity of population have all led to a breakdown of old values without being substituted by a new value system. Peer pressure has more or less disappeared and the social organisation of a mohalla has been replaced by the anarchy of the slum and the urban colony. These are factors we must bear in mind if we are to understand and deal with the present phenomenon of forced sexual attention on innocent women by irresponsible men.


The December 2012 rape case in a moving bus in Delhi aroused a great deal of public anger, which led to what can almost be called a popular uprising. This forced government to enact the Criminal Law Amendment Ordinance, thereafter replaced by the Criminal Law Amendment Act, whereby stringent punishments, including death, were prescribed for rape and other sexual offences. It was projected that with strong new laws in place in the A.D.R. era women would become safe and rape would virtually be a crime of the past. This has not happened and reading the newspapers or listening to T.V. channels it would appear as if rape is a normal phenomenon in our society and is occurring constantly all over India. People are surprised that even after the new law a five-year old girl was raped and left for dead recently in Delhi. Once again Delhi has erupted, with blame being put on the police for the rape. The initial reluctance of the police to register a rape case is being interpreted as the callousness of the police. In the highly emotionally surcharged environment it is forgotten that initially the parents of the child had come to report that the child was missing and the police did treat this as some minor matter. It is only when two days later the girl was discovered in a locked room, bleeding and unconscious, that the rape came to light and allegedly a police officer offered rupees two thousand to the parents of the child to have her treated. This was irresponsible behaviour on the part of the police officer, but it is certainly not evidence of the casual attitude of the police in rape cases as being made out by the activists. One has to distinguish between police negligence or complicity which can permit or encourage rape and police incompetence when dealing with such a case and interpreting this as failure of the police to prevent rape. The question then arises whether the police by itself, through rape centric policing, can prevent rape.

The efficacy of policing is dependent upon the efficiency and the effectiveness of the police in general policing which inculcates in people a healthy fear and respect for the law. In India laws are enacted by the Legislature whose members, as elected representatives of the people, are expected to reflect public opinion and go about their legislative business accordingly. The Legislature enacts laws and thereafter it is for the legislators to insist upon the Executive implementing the laws and for this purpose to keep an eye on the functioning of government through questions, call attention motions, adjournment motions, resolutions, debates and monitoring of how the budget is being operated. A good, healthy legislative interaction with the Executive is absolutely essential for good government. Unfortunately our legislators are more interested in exercising executive functions themselves than in performing their legislative duties. Therefore, members of the Legislature hardly attend to legislative functions and concentrate more on spending the local area development funds made available to them by Parliament and State Legislatures. They are interested in postings and transfers, protecting those government servants who are found wanting in their duty and have been able to win over some politicians through bribes to plead their cases. Legislators are much less concerned with proper policing as they are with having convenient police officers posted to police stations and interfering in matters of investigation, maintenance of order, etc. India has become notorious for day-to-day interference by politicians in what is clearly the routine function of the administration to be performed by the Civil Service. The net result of this is that whereas routine administration suffers, impartial, unbiased, law based, people friendly functioning of executive officials is severely hampered and the Executive becomes ineffective. This is true of the police also.

In a society of laws there is a separation of functions and whereas the Legislature legislates, it is for the Executive to implement and do so impartially. It is for the Judiciary to adjudicate between the citizen and the government, between different wings of the State and between citizens who are in conflict with each other. The Judiciary, through appropriate judicial intervention, can hold the balance between the Executive and the citizen, but it cannot prevent the Executive from doing its duty because executive function is also prescribed by the Constitution. Unfortunately one of the first victims of political manipulation is policing. The functions of the police are to maintain law and order, keep order in public places and the streets, to collect intelligence about potential crime and criminals and take preventive action so that criminals are apprehended before they can act and crime itself, to the extent possible, does not occur. If a crime takes place the police is required to register an offence, investigate it and if a prima facie case is proved, to prosecute the offender. If the policing is consistent, relentless, impartial, honest and strict, crime would be substantially reduced. There was a time when New York was a very unsafe city and when I was in Princeton in 1967-68 I was advised that generally in the United States and particularly in New York one should not go out unaccompanied at night. Murder, rape, robbery, assault, drug peddling were common. When Giuliani became Mayor of New York he ordered the police to adopt zero tolerance policing, which meant that no offence, however minor, would be overlooked, there would be preventive policing and swift intervention if a crime was attempted and even the most minor offence would be prosecuted. The idea was to inculcate a fear of the law in wrongdoers, with a guarantee that every crime would invite consequences. Today New York is one of the safest cities in the world.

When I joined the IAS in 1957 one of the lessons we were taught at Metcalf House, the home of the IAS Training School (now The National Academy of Administration, Mussourie) was that in a developing law and order situation we should enforce Minor Acts and should do ruthless policing to check even minor offences. The objective was to send a signal to potential wrongdoers that we would tolerate no nonsense. It certainly worked for me when I was the young SDO in Waraseoni Sub Division of Balaghat District of Madhya Pradesh. The Sub division headquarters was then a town of about thirty thousand people and the town police station which had several villages also attached to it had a total strength of twenty-three policemen. Jabalpur had erupted in communal violence over the alleged rape and death of a girl called Usha Bhargav (in those days the name of the victim was not kept secret) and the whole episode became notorious as the ‘Usha Bhargav Kand’. The ripples of the Jabalpur riots were felt in neighbouring districts, including Balaghat. 

The senior most police officers I had was a Circle Inspector. I had to take drastic measures to create a police presence out of nothing. We posted two constables at the bus stand with orders that no one coming on a bus originating at Jabalpur would be allowed to disembark at Waraseoni, even if he was a local inhabitant. I did not want people from Jabalpur to spread rumours in Waraseoni and create trouble. I requisitioned five vehicles from different departments, ordered that the tarpaulin covers be lowered at the rear and on the sides and put one armed constable and one driver in the cabin. These vehicles were ordered to constantly patrol the streets and create an impression that there was a large police force moving around. Meanwhile I also ordered the Station Officer to rigidly enforce the provisions of section 34 of the Police Act under which even the most minor act of public nuisance could result in the arrest of the perpetrators. The owners of wrongly parked bicycles and other vehicles, people spitting or urinating in public places or throwing a banana peel were rounded up and made to sit in the compound of the police station. We thus had about a hundred people in custody who, in the late afternoon, were released after a Magistrate had fined them a couple of rupees. The idea was not to punish but to create an atmosphere in which people felt that if one could be arrested for littering, they faced very drastic action if they indulged in rioting, arson, loot, assault or murder. We had absolute peace in my Sub Division despite the efforts of some rowdy elements to disrupt order. Right from the beginning the administration, including the police were on top of the situation. I had used exactly the same tactics in the much more complex city and district of Ujjain where I was D.M. for almost three years with great success.

What is the situation today? India has a very poor track record of law enforcement and that applies not only to criminal law. Illegal construction is rampant and no municipality does anything about it. It took the collapse of a building in the Mumbra locality of Thane which killed about seventy people to awaken us temporarily to massive illegal construction. Of course the matter has died down. People encroach on public land with impunity, knowing that some politician, well bribed, will prevent its removal and in any case before the next election, regardless of the party which comes to power, the encroachment will be regularised. Laws relating to adulteration of food and drugs, liquor laws, laws relating to industrial safety are on the statute book but are ignored. In the matter of traffic most of us are guilty of gross violation. We jump traffic lights, exceed the speed limit, change lanes at will and, if one is a film star or the grandson of a retired Admiral fortunate enough to possess a Mercedes or BMW car, we drive it in a drunken stupor and run over and kill pavement dwellers, policemen at traffic check posts and innocent passersby. These are not acts of negligence but of deliberate violation of law and regardless of what the courts ultimately decide, they should be registered under section 302 IPC as a murder case. Instead we have a situation in which the man who killed two people sleeping on a footpath in Mumbai, only one of a series of acts of crime, including illegal hunting of black buck is called “poor Sallu” and the film world and the politicians fall over themselves in order to protect him. Sanjay Dutt keeps a prohibited weapon and ammunition and explosives, obtained from a known mafia don, hides them and when he feared arrest tries to mutilate the weapon, and the film world and politicians are sympathetic to him. The press and electronic media never tire of showing him with folded hands going from shrine to shrine whereas actually he is a common criminal.

In reality the situation is far worse. As long ago as 1984, shortly before I left the Service, I had personal experience of how politicians behave. The best drafted piece of legislation post independence is the Bonded Labour Abolition Act. It defines bonded labour in unambiguous terms, gives the procedure for identification and release from bond of such labourers, the measures of rehabilitation with the authorities clearly earmarked for these functions, with an attendant penalty clause of three years rigorous imprisonment plus fine for those who keep bonded labour. Such cases are triable by Executive Magistrates and the procedure is of a summary trial. I was summoned to the Cabinet by the Chief Minister, Arjun Singh, who asked me whether I had posted some other inspectors under the Act in Bilaspur Division. I told him that we had posted sixteen young officers as inspectors and they were doing a good job. Arjun Singh said that they were harassing cultivators and I replied that five of them were sitting before us in the Cabinet because these boys had booked five ministers from the districts of Bilaspur Division guilty of keeping bonded labour. The Chief Minister then told me to order the inspectors to go easy on the Act and to ignore it. I told him that this was not possible as both he and I had sworn an oath to uphold the laws of the land and I could not direct that a law be ignored. What is more, I told him that if I pass such an order then in one case the inspectors would follow my instructions and in nine cases they would extract money, sheltering behind my directions. It would be impossible for me to distinguish between the two. Arjun Singh then commented that my attitude would result in agriculture suffering in the State, on which I volunteered to draft a letter from him to the Prime Minister stating why Madhya Pradesh was not in favour of this law and that the Act should be repealed. A horrified Arjun Singh told me, “You are not to do that. After all the Bonded Labour Abolition Act is a fine piece of social legislation”. This outrageous statement virtually made me explode with rage, which no civil servant has the right to do. I said, “A fine piece of social legislation be damned! Sir, by your statement you have brought the whole system of laws into contempt. With such a clear cut law if a man can keep bonded labour with impunity tomorrow he will tell the worker to send his wife for his pleasure and if the worker refuses he would not hesitate in resorting to violence, including causing death, because he knows that he is above the law. Please do not give any discretion to any civil servant, including me, in the matter of law enforcement. If a law is not politically acceptable repeal it but if it is on the statute book enforce it vigorously”. Of course I left the Service soon thereafter, the inspectors were shifted and things went back to normal.

I have given the above example to show the mindset of our politicians. They legislate because it is the popular things to do, but they do not want the legislation to be fully enforced or the law to be applied impartially. The police is only one of the departments of government which is hampered in law enforcement, but the tragedy is that if the police does not keep order we shall have rampant crime and public order will be reduced to anarchy. This we cannot afford. I make this statement because merely trying to ensure the safety of women will not work. In a state of near anarchy in which no one fears the law and no one respects it why do our activists feel that rape centric policing will succeed? Policing has to be general and its main objective is to create an environment of order, not merely a fear of punishment in case of rape. Incidentally, that would also include the regulation of street demonstrations in such a way that demonstrations do not disrupt normal life. As a person going about his lawful occupation I would support public protest because Article 19 of the Constitution guarantees it, but my peaceful pursuit of a chosen profession is also guaranteed to me by the same Article and shrill voices leading to public protests cannot be allowed to disrupt my normal routine.

Certain things need to be done if we are to improve the situation. The first and foremost is that government at all levels, Central, State, Municipal and Panchayat must act and function as a government and provide us good governance. The police is a part of government and it, too, must do its duty of maintaining order, preventing crime and investigating and prosecuting offences, regardless of the seriousness of the crime or the persona of the criminal. If there is proper registration of sexual offences as of all other offences, consistent and swift investigation, prosecution of criminals in the shortest possible time and business like day-to-day conduct of cases by the courts, with the guilty being given appropriate punishment, this would have a major deterrent effect on crime, including rape. My mantra is that policing must be firm, consistent, relentless and impartial if we are to control crime, including rape.

The old village and mohalla social discipline having broken down we need to create community level institutions, growing out of the structure of society at large, which can create an environment in which people come together, discuss social issues and evolve new social and moral values. Community level interaction is the best deterrent of social irresponsibility, including crime. Our education system must also be geared to equating social and moral education with the normal school curriculum of reading, writing and arithmetic, popularly known as the three Rs. A child imbibes values in the classroom and in the family and we must emphasise that moral values are absolutely essential if the nation is to prosper.

India is sadly wanting in a strong counselling service which could reach out to people who need help because they are troubled or unsettled, to potential criminals and to youth who have strayed from the path of virtue. Proper counselling can bring misguided people back to the correct path and deal with those psychological problems which often result in crime, including rape. The counselling service has to be developed by the State, by the corporate sector fulfilling its corporate social responsibility, by philanthropic organisations and by local government which is best suited to interact with people at the locality or village level. The police cannot be everywhere, but if community level organisations alert the police on possible social aberrations which may occur in the community, the police could become much more focused in protecting vulnerable groups and target would-be wrongdoers. The path is not easy, it will take time to restore social order but this is not a task which is impossible of fulfillment. We need the will to succeed, the firmness of government to maintain order and evolving of social values and mores which will form the foundations of a just social order. That is how we can go back to Anno Domini.    

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