Sunday, December 20, 2015

A Dangerously Populist Practice?

A friend messaged that the DCW moved the Supreme Court in a last ditch attempt to stall the release of the juvenile involved in the Nirbhaya case [note: I refrain from calling him a convict or accused, because he is neither, and labels matter]. This was at 1 AM. I slept fearing the worst, but waking up to news reports indicating no stay had been granted while the matter was posted for hearing on Monday before the Vacation Bench. Hearings last night were concluded swiftly, but still did happen to some extent. Hark back to the execution of Yakub Memon and we had full-fledged hearings. This is dangerous trend, only further revealing how dangerously populist our criminal justice system is becoming. Lets start at the roots of the malaise. 

Understanding Penal Populism
In 1993, a 3 year old toddler was brutally murdered in Walton, Liverpool. His killers were two 10 year olds. Since Britain allowed trials for people aged 10 and above, these boys stood trial and were convicted. Immediately after the trial the Judge allowed the media to report on the case, and the boys' names were splashed across the world. They were to serve ten years in prison. Immediately, though, The Sun [a U.K. Tabloid] petitioned against it and it worked. The sentence was increased to 15 years, in a move roundly condemned as playing to gallery. It was overturned by the House of Lords, the highest court in England at the time. Contrast this with a similar incident in Norway, where two 6 year old boys beat up and killed a 5 year old girl. There was no release of details in the newspapers. No trial. There were formal proceedings determined to rehabilitate the children which decided that a change of setting would be best.  

David A. Green has a brilliantly informative book called 'When Children Kill Children', where I take this from. He attributes these starkly different responses primarily to (i) different political cultures, and (ii) different media cultures of the two countries. The U.K. has highly competitive politics, where every issue is treated by the Tory and Labour as a zero-sum game, Norway has more political outfits but no zero-sum game. Dialogue is more prominent in their approach. As for the Media, the U.K. again has a notoriously capitalist media with everyone fighting for readers and stories. Attention-grabbing headlines, innovative gimmicks, all of this is but an attempt to ensure support. The capitalist regime also ensures there are links between the politicians and the media: papers are known to have leanings, and politicians greatly benefit from the support bestowed on them. Norway does not have a capitalist setup, and there is one clear leader in the newspaper race. The support, if any, by the media for politicians is also of no great consequence. All of this impacts how elected representatives respond to crime. Crime is one of the most reported segments for newspapers everywhere. The large personal element of crime makes public opinion increasingly voluble, and easy and profitable to report. The large noise so created has to be responded to by the politicians, for this zero-sum game has important first-mover advantages. The decisions made in such an atmosphere for penal policies are primarily populist, and usually end up being the wrong ones as well.

Penal Populism in India
I will assert, and not seek to prove, that India is a populist democracy where decisions are swayed by populist tendencies more often than not. It is much closer to the English experience highlighted here than the one in Norway. The zero-sum game is played between the Ruling Party and the Opposition on every issue. Instances of a united front being put up are very, very rare indeed. The views on penal policy are treated no differently. Consider the Yakub Memon hanging: the Congress condemned the decision while the BJP stood by its views of no mercy for terrorists. The Finance Minister called Congress leaders irresponsible in their statements. Both sides were covered by different news outfits. When the Law Commission was making its recommendations on abolishing the death penalty, its conclusions were tempered due to populist stands taken by representatives of the Ruling Party [it recommended abolishing the death penalty for everything but terrorism related activity].

Nirbhaya was no different. The issue presented itself in the form of a horrific killing. Everyone likes a good crime in the news and it was heavily reported. Sexual offences were not always so heavily reported. But the public outcry following the media releases here in fact contributed to an increase in overall reporting of sexual offences by every outfit. This massive public outrage became easy fuel for politicians, who now adopted a universal position of condemnation but took different and seemingly irreconcilable positions on what to do. The debates raged on aggressively dealing with sexual offences, and juveniles committing offences. Their positions were supported by different news outfits, ensuring everyone had something to talk and shout loudly about, and make money from. Capitalism won, and continues to win, with every 9 PM news debate.

The Current (Actually Old) Debate
Between 2012 and 2015, little or no movement occurred outside of these verbal sparring battles. One slew of amendments was passed with clear hues of populist dementia (introduce the death sentence for an offence to make everyone think its serious now, while they've forgotten the problem really was enforcement). Juvenile policy was worse. In 2012, there was a movement to change the law making 16 year olds responsible. It was reviewed by the Law Commission and the Supreme Court. Both concluded that the shift was possible if there was some scientific data to support the theory that 16 year olds understood ideas of responsibility. Populism alone was rejected as a basis for legislation. What happened between the three years? You guessed it. There was one Bill introduced, no scientific study conducted, and in fact no verbal sparring also. Callous statements only began to emerge closer to the Day of Reckoning. Reports with dubious credibility surfaced with the media showing no remorse. The Ruling Party blamed the Opposition for stalling its reforms (cue, applause). For good effect, they brought in ISIS! Because terrorism and sex offenders are perhaps the only things that get our public opinion really moving. 

And then there is the Supreme Court. Perhaps the only real development between 2012 and 2015 was that the Supreme Court began to play to the gallery. Its always good to be looked upon as a White Knight in a bleak world (no, I will not use the line from Batman here), and the Supreme Court played its part publicly to great effect. The midnight hearings for Yakub Memon were yet another exercise in boosting that image, while showing the 24 Hour newscycle that the 12-5 AM segment could have new material. So as the clock struck midnight and brought upon us the end of the world, the politicians ran to the Supreme Court again. Hoping, I believe, that the great work they've done - of verbal sparring in the media, using victims, shouting, and not doing any real work - will be duly rewarded. It hasn't, yet, and I hope good sense prevails. The Supreme Court will do good to recall its earlier position of wanting clear data to effect legislative change. A reading of When Children Kill Children would be handy as a starting point. It would also do good to remind the media that the juvenile was never tried, and must not be called a rapist among other things. And finally, maybe it will stop entertaining petitions at midnight before it becomes the next in-thing. 

6 comments:

  1. Hi Abhinav,

    firstly, I love your blog. its unique and the arguments are well articulated. This entry of yours however, needs a reply.


    What we need to understand is that law does not govern society. neither does society dictates law.

    Law, as we implement is, is not the laws of physics, that every thing we know must follow.

    The law that we have in our society is dynamic, and varies vastly from culture to culture and even within culture.

    Therefore, what we need to understand is society shapes the law.
    Law does not shape society.

    And this is why I differ from you.

    in the present case, there is no precedent for a person to be retrospectively punished by a change in criminal law.

    If that happens, then it would (to my knowledge) be first, i.e. without precedent and second, maybe open a pandora's box.

    But that does not mean, that the protest or even appeals are "theatrics"

    India's culture is different. That is why, by law, there is reservation. That is why, in law, you have 498A.
    Even without the law, a person is guilty till proven innocent, when a woman complains sexual violence.

    Any other country where cheque bouncing is a criminal/ quasi criminal offence ?

    All of the above are unique to India. And all developed as the laws of our society, due to the unjust nature/ unfair treatment to the victims.

    All these debates, "theatrics" that we see, shape the law. The juvenile is escaping a harsher punishment because, there is no exception. Unlike other countries, where a juvenile may be treated as an adult because of the nature of the crime committed.

    if the populism that you talk about, results in a change in the law, that reflects what the society wants, so be it. Who are you or me to question that.

    One can call it populism. someone else might call it giving legal a direction.

    Indian laws and the penalties are different from other countries, mostly because, there, the law is a process. From the actual commission of the crime, to investigation, to trial, to fair representation, to punishment.

    Indian legal system is vastly different. nothing compares. and therefore the end results (punishments) are also different.

    Laws that govern society are not always based on solid scientific basis. They are based on polulism. Look at immigrants laws in the west. Look at gun control laws in the US.

    Society makes the laws we live in. are they based on populism. yes. is it wrong ? no.

    If you start looking at law and society in two separate compartments, where one compartment (society) has to follow all the diktats coming from the other compartment (law), you would find it very difficult to understand the logic of law.

    I have not read the books, that you mentioned. but plan to.

    Let me suggest one. The morality of law, by prof. Lon L Fuller.

    He gives a fantastic interpretation of why some laws are strict, and others not.

    ReplyDelete
    Replies
    1. Hi Pukul

      Thank you for the appreciation, but I'm saddened by the fact that you found only this post in need of a reply. I'd prefer comments on each post!

      You make two important points, (i) the interrelationships between law and society have no fixed leader and follower, and (ii) comparative arguments on penal policy will remain wanting due to every country's unique demographic. I agree with both fully.

      What I disagree with, is your equating populism in policy making with an approach that caters to society's apparent interests. A populist approach gives precedence to what representatives make us believe are society's demands. These sadly are often little more than views if sections placed into prominence. No actual survey of credibility is ever conducted. That is what is happening now, rather than implementation of a process which has some thought behind it.

      Prof. Fuller, and subsequent members of the legal moralist school, argue that morality must find a place in the criminalisation process. I agree, but that position cannot be one of first among equals.

      I hope you comment more frequently!

      Delete
    2. Hi Pukul

      Thank you for the appreciation, but I'm saddened by the fact that you found only this post in need of a reply. I'd prefer comments on each post!

      You make two important points, (i) the interrelationships between law and society have no fixed leader and follower, and (ii) comparative arguments on penal policy will remain wanting due to every country's unique demographic. I agree with both fully.

      What I disagree with, is your equating populism in policy making with an approach that caters to society's apparent interests. A populist approach gives precedence to what representatives make us believe are society's demands. These sadly are often little more than views if sections placed into prominence. No actual survey of credibility is ever conducted. That is what is happening now, rather than implementation of a process which has some thought behind it.

      Prof. Fuller, and subsequent members of the legal moralist school, argue that morality must find a place in the criminalisation process. I agree, but that position cannot be one of first among equals.

      I hope you comment more frequently!

      Delete
  2. henious crimes committed by matured women never led to any law change or any outage. Rather criminal women like Rohtak Sisters were given bravery awards and Jasleen Kaur raised to fame. This is how feminism has become shameless today. No, One Nirbhaya Case can't determine fate for all boys, that will be dangerous for our future -

    http://themalefactor.com/2015/12/19/no-one-nirbhaya-case-cant-change-our-juvenile-justice-system/

    ReplyDelete
  3. Much needed - introspective and nuanced. Thank You.

    ReplyDelete
  4. It is very informative article. Thanks for sharing.

    ReplyDelete