PROSECUTING STUPID INNOCENCE

Indian police and judiciary are in the habit of catching a stupid first-time offender, while they let hardened criminals go scot-free. This was typically seen in the famous DPS Dhamaka case. Does the system need to be reformed?

Ravi Raj - Does that name ring a bell? Probably no! Well, he can be described as an extraordinarily intelligent and equally stupid guy. He was foolish enough to commit a crime in a most innocent manner. He did not cover his tracks. In fact, he declared his name and address. Probably, he was not even aware that publishing or selling pornographic images is an offence. Probably, he thought that selling something that is available so easily couldn't be a crime. What he thought or what his intentions were is not relevant. The only relevant fact is that an inefficient police and judicial system has found it convenient to catch him and the brutal heartless and sluggish mammoth does not believe in showing any mercy to the small preys that it can lay its hands on.

Indian police and judicial system follows the rule of the jungle, where the weakest members of a species are hunted down. In any crime, the police are too happy to catch the small petty criminals, while the big ones carry on their 'business' without any fear. Let us take the case of Ravi Raj. A teenaged boy and a girl of Delhi are filmed while they are enjoying themselves. The film is circulated around the country by mobile phones, e-mails and illegal CD's. The film must have surely passed thousands of hands in its journey from Delhi to every nook and corner of the country. This was an amateur film. There are thousands of much better production quality pornographic films circulating in the market. It will be difficult to find an educated male in urban India who has never seen or handled any pornographic film or image. Legally speaking, hence, every man has committed a crime equivalent to the one committed by Ravi Raj. The only difference being that for everyone else it is a hush-hush act. Ravi Raj, a student of IIT Kharagpur, was stupid enough to not be hush-hush about it. He took the film that was floating around and put it up for sale on a website (Baazee.com).

Professional pornography does not make any news, but this amateur pornography made news. Indian media - always on the lookout for something titillating - flashed this news as if it was the key to country's future. Based on media reports and sensing an easy prey, Delhi police took suo moto action. Ravi Raj had put his hostel address of IIT Kharagpur on baazee.com. So reaching him was easy. When the police reached his hostel room, they had no difficulty in arresting him and seizing his PC. Hard disk of his PC contained all the incriminating evidence that the police wanted. Now they had a foolproof case against this stupid IIT student, whose greatest fault was that he was not a professional porn peddler.

Professionals in the porn trade pay weekly or monthly sums to all concerned police officers and operate under a cover of anonymity. Some naughty children cannot be allowed to disturb a system that is operating smoothly for years. So, they must be punished most harshly.

But it is not just a matter of naughty children discovering the pleasures of the flesh. Let us look at much-talked-about Best Bakery case. It is a well-accepted fact that a crowd of more than 1000 persons attacked Best Bakery in Vadodara during communal riots and set it on fire after murdering most of the family members. Police and investigating agencies have caught about 30 odd persons and have charge-sheeted them. It is clear that more than 95 per cent of the persons who committed the crime have not been booked. How did the police select the chosen handful? Are these the ones who were the most vicious and barbaric of the lot? Or are these the stupid ones who did not bother to cover their faces properly, while the professional hardened criminals hid themselves well? Or are these the people who did not pay to the investigating officer all that he demanded, while others managed to get their names cleared by that method?

The irony is that the self-righteous educated middle class, which is firmly of the opinion that all guilty must be punished, shuts its eyes to the worst offenders going scot-free. When Best Bakery accused were acquitted, almost everyone in India (including Supreme Court) were horrified and cried hoarse. Surprisingly, not one of these wise men talked of the ones who were never brought to court.

Mumbai is estimated to have more than 200,000 prostitutes and Delhi is not too far behind. Prostitution is, generally speaking, illegal in India. Most prostitutes are forced into the trade by rape, coercion, fraud, abduction and violence. Given this situation, one would think that Delhi and Mumbai police would have no time on their hands to pursue a teenager who got himself and his girl friend filmed in an obscene manner or to catch a student who tried to sell a clip of the film on the net. Quite in contrast, police have all the time to engage in a nationwide witch-hunt for these amateurs.

Does this hunting of amateur criminals serve the primary objective of legal and judicial system - prevention of crime? Quite the opposite! The system serves to convert the amateur into professional hardened criminals. Coming back to the case of Ravi Raj - let us try to look at what the future holds in store for him. IIT Kharagpur authorities have expelled him. If he is convicted, he will probably spend about a year in jail. Whether he is convicted or not, he will spend the best part of next two or three (probably five to six) years running from courts to police stations to advocate chambers. By the time he is through this ordeal, his only expertise will be handling relations with police, lawyers and courts. With this expertise the only career option open to him will be crime. After this rich experience, he will not be stupid. He would have learnt to sell pornography the right way. With his sharp intelligence (considering that he is an IITian) he would surely rise to heights in the criminal world.

Of course, it cannot be anyone's argument that Ravi Raj should not be punished. Let us look at this case as if Ravi is our younger brother. When one's child is caught stealing some candies, what does one do? Does one report the matter to police? No, one just slaps the child and admonishes in harsh terms. Ravi deserves a slap, may be two - but not the ordeal that he is facing.

A criminal law system must differentiate between pranks of a naughty child and crimes that are threat to the society. In most civil societies, there are clear laws that prescribe light punishments and humane treatment to first-time offenders. Not in India! Indian Penal Code, Criminal Procedure Code and judicial system were created by the British for the natives whom they considered sub-human. British could not imagine treating an accused native as brother. After independence, Indian legal, political and administrative fraternity has continued with the British attitudes. When one of their own class is caught in the clutches of judicial process, they discover loopholes to evade. For all others, it is the sledgehammer that shows no mercy and does more harm than good.

In many developed countries, Ravi Raj would have just pleaded guilty before the magistrate as soon as he was produced before one. His admission of guilt and considering the fact that he has no criminal record would have entitled him to get a light punishment - say serving in a social service institution every evening for one year. Even the prosecution lawyer in USA would avoid arguing for sending such a boy to prison. No trial would have been held, sparing the poor boy the trauma of court. This approach of "plea-bargaining" is standard in USA and many other countries. Indian laws have no provision for plea-bargaining.

It is ironic that the legal system of a country, whose ethos lay great stress on KSHAMA (pardon) and PRAYASCHIT (penance), has no place for these values. In Best Bakery Case, if Zahira Sheikh wants to pardon the accused, she is legally prevented from doing so. In a fit of madness, a vast community turned against the family. Now the community might feel sorry and might want to repent for their wrongdoings by rebuilding Best Bakery and doing all in their power to help the survivors. But such sentiments have no place in Indian legal and judicial world. In India, every murder must be followed by equally ghastly judicial murder called capital punishment. This must be secular morality, because no religion in the world has ever advocated this brutal concept of justice.

All religions emphasize love and brotherhood. KSHAMA (pardon) and PRAYASCHIT (penance) arise from these universal values. No society can survive if it lives only by heartless laws. Every society needs to continuously build and strengthen the bonds of heart, not just adhere to laws. Ravi Raj is my brother, Zahira Sheikh is my sister, and all the accused in Best Bakery case are my brethren too. None of them is a hardened criminal beyond reform. Some of them have made mistakes. What is it that I can do to ensure that they do not commit the same mistakes again? What is that I can do to ensure that each of them suffers the minimum? Let this be the sentiment when anyone sits in judgement.

Compassion, mercy, love, empathy and brotherhood are not constitutional values, but are certainly more fundamental and important than anything written in any Constitution or law. Before we sit in judgement, let us not forget that today it is Ravi Raj, tomorrow it may be one of us. Well, Ravi Raj is one of us.

ANIL CHAWLA is an engineer (and now a lawyer too) by qualification but a philosopher by vocation and a management consultant by profession.

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