Make them pay

It is hardly a stretch to say that our justice-delivery system barely delivers. The system includes not just our laws, courts, judges and lawyers, but also the police force, the investigators, the CBI and even the Enforcement Directorate. Each of these nodes in justice delivery contributes – through rank corruption, mismanagement and plain and simple ineptitude and stupidity – its own impressive share to the justice that is routinely delayed or denied. All of it also increases the cost of justice enormously for the common man, leaving the rich and the powerful to game the system effectively to their advantage.

In every case that justice is denied or delayed to an accused or an accuser, there is a corresponding, often a more powerful accuser or accused who benefits from it.

So, what's the solution? Fortunately, if we have the will, there is a way for many of the cases, if not all of them, to be solved meaningfully. These cases could be, say, related to accidents, wild-life poaching, drunken driving or brawls, causing bodily injury and such – crimes which are serious, even if ranking below terrorism, murder, rape, or kidnapping, et al.

Let us consider the Wild Life (Protection) Act, 1972. The penalties for killing a protected animal under the Act, among other things, provide for imprisonment up to six years and a minimum fine of Rs 5,000. Let us say, I am accused of committing the offence under the Act. My lawyers tell me of the potential imprisonment I am looking at. If I am one of those rich and powerful, guilty or not, what would I do?

I would use every trick in the legal book to defend myself, deploying expensive lawyers against the desultory government lawyers acting for the prosecution. Now, what will I do if 20 years later, I am awarded a five-year sentence and a negligibly small fine?

I will continue with the brute force of my formidable wealth to fight the award tooth and nail in every successive higher court, prolonging an already delayed justice in an attempt to escape the five-year imprisonment.  My expensive lawyers will keep gaming the system until they find a court that reverses the judgement or converts the sentence to a suspended one, and until I could happily stay out on bail.

However, what if I was an ordinary mortal, lacking the wherewithal to defend myself over 20 years, or may have expended all resources fighting the battle and cannot afford the very expensive lawyers needed to fight the case in higher courts? If I am held guilty, I serve the sentence. Period.

However, suppose the Wildlife Act was amended to six years imprisonment or Rs 1 crore in lieu of each year of sentence, with a minimum of one year served. Alternatively, the Act could also provide for, say, paying Rs 5 crore upfront, without accepting or denying guilt.

Now, if I am one of the rich and the powerful, as soon as I am accused under the Act, and informed of the possible imprisonment of six years, I may well cut out a cheque for Rs 5 crore without accepting or denying guilt and the money can go to, say, a wildlife conservation fund, apart from being a serious deterrent.    

The purists may cry foul that such a system monetises justice and that that while a poor man goes to jail, the rich pays his way out. That may be true, but the steep fines do serve a wider purpose. And, if one believes that the justice system typically works better in the West, well, that system makes use of such steep fines extensively.

Thomas Macaulay, who laid the foundation of the Indian Penal Code in 1861, favoured steep fines as a form of punishment. Incidentally, post-Independence, the IPC continued as an expansion of the same draft.    

Macaulay believed that while jailing criminals was a cost to the exchequer, steep fines for certain categories of crimes were a source of income for the exchequer, in addition to being a deterrent – a key objective of law anyway.

Now, here are some sample quantum of fines prescribed by him: misconduct in public by a drunk person – Rs 10; voluntarily causing hurt or provocation – Rs 500; endangering life or personal safety of others – Rs 200; sale of drug as a different drug or preparation – Rs 1,000; making the atmosphere toxic to health – Rs 500, and so on.

Macaulay specified these quanta of fines in 1860, that is, 158 years ago. Assuming a reasonable annual compounding rate of 5%, Rs 100 in 1860 would be about Rs 2.2 lakh today – no doubt a prohibitive sum, which becomes clearer when Macaulay's Rs 10 fine for drunken misbehaviour translates to Rs 22,000 today, in keeping with his belief that a stiff financial burden on a wrong-doer is a severe deterrent and makes him rue his wrong-doing every day of his life. But our lazy adoption of Macaulay's penal code kept those fines at the same level for over a 100 years (some remain at the same level even today), without ever thinking of sufficiently indexing those fines over time! That is why we speak of fines of Rs 2,000 or 5,000 for even serious crimes today!

Of course, one cannot let off a murderer, rapist or a terrorist with a mere steep fine. But the strategy of monetising some crimes would also free much of our crowded jail space. Our legal system in most cases does not even recover the loot from politicians and scamsters even when they are imprisoned. Often, the fine bears no semblance to the extent of the fraud. A scamster can indeed serve his many jail sentences concurrently and keep the loot so that his three successive generations can enjoy the fruits of his scam. Often, the sentence makes virtually no mention of recovery of the loot, while in the West, a fine of at least thrice the amount swindled is the norm. It is time we took another look at our laws.