Haryana DGP, SPS Rathore, who in 1990 sexually molested a 14-year-old girl, Ruchika, who three years after the incident committed suicide as a direct result of the psychological trauma she had suffered. Her family was persecuted by members of the Haryana police; her brother had 11 false cases made against him, and the family eventually had to leave the state. Almost 20 years later, the perpetrator of this crime gets a jail sentence of six months and a 1,000 rupee fine. He leaves the court smiling, saying he will appeal.
However, Suraiya gets it wrong in the very next para, where he says:
The reason given for this gross travesty of justice is that the 150-year-old law relating to sexual molestation, short of rape, of a minor prescribes a maximum sentence of only two years, as against 10 years for rape. This antiquated law – which takes no account of that most repugnant of crimes, that of child molestation – is in the process of being reviewed.
Suraiya is thereby reposing faith in “positive law” – in the written legislation of parliaments. I repose full faith in “private law” – under which this would have been originally treated as a tort, and matters sorted out. But let’s get to the root of the issue first.
In the case of “criminal law” all crimes are “crimes against The State.” Obviously, this cannot work in cases where senior officials of The State are guilty of crimes. How would it be different under private law?
Under private law, all crimes are “crimes against the individual.” These are all primarily “torts” – the word is the root of the word “torture” and implies grievous hurt to a person. In all such cases, in a private law world, the victim can collect the evidence himself and prosecute his own case. Thus, Ruchika would have taken Rathore before a tort court, with her own evidence. This case would be decided “on the preponderance of evidence” (not “beyond any reasonable doubt” as in criminal law) and would therefore be decided fast. The victim would receive a generous compensation, and Justice would have been done. Most importantly, the Victim would receive Justice. Of course, Rathore might receive punishment from his departmental superiors too, but that’s another story.
Suraiya wants to “raise fundamental questions regarding the many weaknesses and perversities in the laws of our land.” I hope I have helped him in doing just that. Onwards to a private law world. What we have today is “unlaw.”
Does anyone have the pictures of SPS Rathore's immediate family......please publish them online.
ReplyDeletesauvik: Do you know of any material where a novice can read about law and its structure?
ReplyDeleteI recommend "Origins of the Common Law" by AR Hogue.
ReplyDeleteAnd also "Freedom and The Law" by Bruno Leoni.
And also "The Enterprise of Law" by Bruce Benson.
Happy reading!
Brilliant commentary, Sauvik!
ReplyDeleteCan you please elaborate what you mean by "preponderance of evidence" ?
ReplyDeleteAnd how would you apply it in this particular case ?
It is easy to sit at a key board and drum out courses of action. I sit and think what Ruchika, her brother and dad went through with the entire underground system gunning for them... had the child expelled from school, had the brother beaten up...Can such a family have the energy to read the law and look for ways out? The 'law' is experienced, usually. Never read. It is so so so so so easy for people with money and a sleazy mind to stuff power pockets with a few lakhs of rupees and thus bend it in their own favor. You will be eye-popping-startled to see how easily this works...
ReplyDelete@Shyam: Tort cases are "civil" cases, not "criminal." There is no jail, no execution in tort cases, only financial compensation. Thus, traditionally, they are judged on the basis of a lower criterion - "preponderance of evidence" rather than "beyond any reasonable doubt" used for criminal trials.
ReplyDeleteIn this case, whatever evidence could be gathered, from injuries on her body to statements of sworn witnesses, could have been used against Rathore in a tort case.
Of course, with our "unlaw" the entire matter has spun out of control; Ruckika is dead; Rathoore and his cops harassed her brother... and so much more.
So the shit hits the fan!