The Telegraph
Since 1st March, 1999
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Rights are tough things to get around, even if they are the rights of a suspect. The right of bail, for example, follows logically from the foundational principle of Indian criminal law, that a suspect is innocent until he is proven guilty. The onus of proof lies with the prosecution, although there are some exceptions. In a case of rape of a minor for example, it is the defendant who must prove his innocence. But these are special cases. Generally, everyone is given the right of habeas corpus, else the justice system in place would be subverted. To suggest that a category of offences be made non-bailable is to enforce a condition that the Indian legal framework does not allow for. The police commissioner of Calcutta feels that those offences popularly referred to as “eveteasing”, coming under Section 354 of the Indian penal code, should be made non-bailable, as rape already is. As a reaction to the runaway growth in public crimes against women in the state, this proposal seems particularly illogical. If a potential offender is to be scared off by the knowledge that a particular offence is non-bailable, then there would not have been an increase in the number of rapes in West Bengal. It is not the courtroom that can help in checking the growth of crimes against women. The trouble lies with the police themselves. A criminal’s daring is proportional to police leniency. It is most often the woman, the victim, who is made to feel ashamed, insecure, insulted, if she decides to go to the police with a complaint. The atmosphere of indifference and brazenness within which public crimes against women take place has been created as much by the police’s attitude as the offenders’ brutality.

It may be argued that there is some pragmatic reasoning behind the commissioner’s proposal. Easy conditions of bail allow suspected offenders back on the streets, and this may work in two ways. They can use their freedom to intimidate witnesses. And the fact that they are inevitably allowed bail makes the police personnel concerned even more lackadaisical about registering women’s complaints. But neither of these reasons is sufficient to go against the basic principle upon which criminal law works. To be non-bailable, each crime must be looked at in its particularity. The police must be able to show that the presence of the suspect would hamper investigation and the collection of evidence. Again, this means harder work for the police. More, it means a change in priorities. It is the fact that offences against women are considered trivial that is at the root of the problem, both out on the road and within the police station. The law and its workings could be left in peace if a change of attitude could be achieved in this one sphere.

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