The Stumbling Block For Legal Architecture: Severe The Laws Finer The Enactment

“The best way to get a bad law repealed is to enforce it STRICTLY” …… Abraham Lincoln

INTRODUCTION

The rules and regulations that maintain the discipline in any society are the “Laws”. This law provides nuts and bolts for the society and tells how people must behave to form a better society. Laws are considered to be as the most important part of the society and are the pillar on which our society is established. But what if the laws made are not implemented properly?

 

When we say that law act as a pillar on which society stands, a tool which reshapes the society, a tool which maintain peace and reduces, and a tool which supervises the society or a nation at large, than we have to make sure that the laws that are made must be properly implemented. It is not true that the fear of not committing the crimes will only come if we have strict laws; instead the fear will come if we have the proper implementation of laws because than the person will think twice before committing any crime. He will be in a constant fear that if he does any crime then he can be acquitted and will be punished. Stricter laws without proper implementation cannot act as a deterrent.

POOR IMPLEMENTATION OF LAWS

Many countries in the world are lacking and are destroying their own well-established legal systems by poor enforcement and one of the biggest example of this is our motherland- India and this can be inferred from the increasing rate of crime in our society. Taking the burning example of increasing cases of rape in India, we can get a better picture of this. Even after having so much strict laws for the offence of rape, these cases are increasing readily rather than decreasing. After the Nirbhaya rape case many amendments were enforced which made the punishment for rape stricter but has the scenario improved? No! Instead it became worse. 1According to National Crime Records Bureau (NCRB) 2013 annual report, 24,923 rape cases were reported across India in 2012 and the number increased to around 39,000 in 2016.2 Out of these, 24,470 were committed by someone known to the victim (98% of the cases).3 4An estimation shows that 68% of Indian men agreed that women should tolerate violence, 37% has physically assaulted their intimate partner at least once and about 24% men has committed an act of sexual violence against someone in the society. Does this figure show us about what is happening to the women in India?

 

After the Nirbhaya rape case, On December 23, 2012 a three member Committee headed by Justice J.S. Verma, former Chief Justice of the Supreme Court, was constituted to recommend amendments to the Criminal Law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault against women. The Committee submitted its report on January 23, 2013. The Committee recommended that the gradation of sexual offences should be retained in the Indian Penal Code, 1860 (IPC). The Committee was of the view that rape and sexual assault are not merely crimes of passion but an expression of power. Rape should be retained as a separate offence and it should not be limited to penetration of the vagina, mouth, or anus. Any nonconsensual penetration of a sexual nature should be included in the definition of rape. The IPC differentiates between rape within marriage and outside marriage. Under the IPC sexual intercourse without consent is prohibited. However, an exception to the offence of rape exists in relation to un-consented sexual intercourse by a husband upon a wife. The Committee recommended that the exception to marital rape should be removed. Marriage should not be considered as an irrevocable consent to sexual acts. Therefore, with regards to an inquiry about whether the complainant consented to the sexual activity, the relationship between the victim and the accused should not be relevant. After that, THE CRIMINAL LAW (AMENDMENT) ACT, 2013 was enforced which made the punishment of crimes against women is very strict in India. 5Section 354.A of IPC define the circumstances in which any act of man will result in Sexual Harassment and the person committing the offence shall be punished with rigorous imprisonment which may extend to three years or with fine or both. 6Section 354.B of IPC define the assault or use of criminal force to woman with intent to disrobe and the punishment include the imprisonment of either description for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. 7Section 354.C and Section 354.D include offences of Voyeurism and stalking which also include rigorous imprisonment or fine or both. 8Section 375 of IPC defines rape and 9Section 376 defines the punishment for rape. It also includes various criteria in which the punishment can be rigorous imprisonment from five years up to lifetime till the time of person’s natural death along with fine. There are also provisions in section 376.E for the death penalty for the rapist who has been previously convicted of an offence punishable under the section of 376. Here, let us consider the example of the Nirbhaya rape case verdict: 10On 5 May 2017, the Supreme Court rejected the convicts’ appeal and saying they had committed “a barbaric crime” that had “shaken society’s conscience,” and the court upheld the death sentence of the four who had been charged in the murder and rape case. After about 8 years, this March 20, 2020, the convicts were executed by hanging. This too happened after so many years of the commitment of the inhumane crime. That is the reason people are not feared of committing the crimes because they know about the implementation of laws in our country.

 

Other than making laws the government has taken many steps like the abolition of 11Khap panchayat which was having a very radical approach towards laws and towards woman. The Supreme Court of India has declared Khap Panchayat to be illegal but still we can see that in most of the backward rural areas it is still practiced; that is what we are calling as poor implementation of laws. It is the implementation of the laws that tests its effectiveness in solving the community problems.

 

The problem is not only about poor implementation of the women related laws but also with other laws like labor laws, environmental laws, and this we can see from our day to day atrocities on laborer and the increasing problems related to environment. Despite of the facts that we are having strict laws for these matters, but again the biggest problem is poor implementation of the laws that resulted in several problems in our society. Many prominent personalities also talked about the problem of poor implementation of laws in our country. 12Rajasthan High Court stated-

 

“The country has adequate laws, but problems arise when they are not implemented in letter and spirit and many people seek legal recourse when such problems arise.”

CONCLUSION

The laws are basically implemented according to the rules framed by the government. So, it can be said that the rules made by the government are as important as the laws enacted by the parliament. But are these rules not proper enough to enforce the law in the society? That is one of the biggest reason for improper implementation of the laws. Many laws are operational in our country, so it needs a proper rulemaking process to ensure consistency between the intent of Parliament while making laws and implementation of these rules by the government. The government must be free from all type of corruption for this process of proper implementation.

 

Laws are not properly implemented often because of lack of awareness among people specifically the uneducated section of the society. In villages, forget about laws people are not even aware about their basic human, constitutional and legal rights. So, if the awareness factor improves the implementation of these laws at ground level will also improve as both the awareness factor and implementation of laws are directly proportional to each other.

 

Leo Tolstoy also stated in his book War and Peace that –

 

“Writing laws is easy, but governing is difficult.”
There are already many laws on paper. Now, it is the time for proper governing of the laws and proper implementation of the same. This would help creating the fear of punishment in the minds of criminals. That will in turn lead to the betterment of the society as a whole.

 

Author: Mr. Abhishek Tripathi

    

References

1 Chapter 5: Crime against women”, Crime in India 2012 Statistics (PDF), National Crime Records Bureau (NCRB), Ministry of Home Affairs, Government of India, p. 81, archived from the original (PDF) on 16 January 2016

2 Total number of rape cases reported in India from 2005 to 2016, Statista Research department, Sep 29, 2019 https://www.statista.com/statistics/632493/reported-rape-cases-india/

3 Sirnate, Vasundhara (1 February 2014). “Good laws, bad implementation“. The Hindu.

4 https://www.thehindu.com/opinion/lead/good-laws-bad-implementation/article5639799.ece.

5 THE CRIMINAL LAW (AMENDMENT) ACT, IPC Section 354.A

6 THE CRIMINAL LAW (AMENDMENT) ACT, IPC Section 354.B

7 THE CRIMINAL LAW (AMENDMENT) ACT, IPC Section 354.C, Section 354.D

8 THE CRIMINAL LAW (AMENDMENT) ACT, IPC Section 375

9 THE CRIMINAL LAW (AMENDMENT) ACT, IPC Section 376

10 DELHI GANG RAPE, WIKIPEDIA https://en.wikipedia.org/wiki/2012_Delhi_gang_rape

11 Khap, Wikipedia https://en.wikipedia.org/wiki/Khap

12 Non implementation of laws properly leads to problems’ , THE TIMES OF INDIA http://timesofindia.indiatimes.com/articleshow/12488053.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst