Unnao and Kathua rape cases: Changes in substantial law meaningless until accompanied by changes in procedural law

Raghav Pandey and Ramanand
A Union Cabinet meeting which was underway at Narendra Modi's residence in in New Delhi has approved an ordinance on amendments to the POCSO Act

There is no doubt that violence against women is a harsh reality of the society in which we live. The Dowry Act, Domestic Violence Act and similar legislations have attempted to strengthen the safeguards against such violence, but these laws could not bring the desired results on ground. This is evident in the fact that the number of incidents of such crimes remain significant and conviction rates remain low.

A similar trend can be observed with respect to the crime of rape:

The data primarily indicates that a change in the substantial law is not merely enough. The substantial law is the law prescribing a quantum of punishment for a particular crime. The procedural law is that which lays out the rules of procedure for establishing guilt.

Therefore, the substantial changes brought about in haste, as seen in the aftermath of the 2012 Delhi gangrape case, are not serving the purpose for which they were enacted.

As has been established, societies suffer from over-criminalisation when there is an excessive reliance upon the changes in criminal judicial system. In India, this problem is very acute because a change in the substantial law is the perceived as the most viable solution for any rampant crime.

It has to be stressed with authority, that such changes in substantial laws have no meaning, until and unless they are accompanied by peripheral changes in the procedural laws and changes with respect to the role of the judiciary. Also, such changes are not needed in the first place, if the existing rules are enforced diligently. India has long suffered this problem of many laws with little implementation.

The narrative of change in law, which is usually the main standpoint of protests in the wake of such incidents, is therefore self-defeating and mostly results in the number of false cases, with no effect on the deterrence of that particular crime.

Raghav Pandey is a senior fellow with the Department of Humanities and Social Sciences, IIT-Bombay. Ramanand is an alumnus of Tata Institute of Social Sciences.

Also See: By withholding Kathua rape victim's name, we are protecting the rapists: Tavleen Singh

Kathua and Unnao rapes: Rahul Gandhi’s candlelight vigil is just 'tragedy opportunism’, not call of conscience

Congress march highlights: Party holds nationwide protest, seeks justice in Kathua, Unnao rape cases

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