Tamil Nadu’s Goonda Act — High Court suggests caution
Administrative overreach puts personal liberty in peril.
How does the law deal with a young man who
a. Molests a young lady in a over-crowded bus. He has done this offence for the first time in his life.
b. Sends a lewd message to his heart throb, or sends a vulgar abuse to a politician, again for the first time in his life.
c. Molests a child with sexual intent for the first time in his life
d. Indulges in sex with a person of the same sex
There are penal provisions under the IPC for each of the above offences. Police is empowered to arrest the offender, investigate the crime, prosecute him, and ensure his conviction through a court of law. The laws have been progressively strengthened in recent times to ensure the offender does not get away on technical grounds. The gaps in the law pertaining to sexual attacks on women have been made tight by clearly describing what constitutes molestation, rape, voyeurism etc. With all the escape routes closed, the police and the courts can now dispense speedy punishment to the guilty, if they show due sensitivity to the victim and try to finish the trial speedily.
Perhaps to send a message to potential offenders, the government of Tamil Nadu has included these offences under the Goonda Act of 1982. This means, the culprit may be compulsorily detained for up to one year after his arrest. The invoking of the Goonda Act appears to be draconian because
a. Detaining a first-time offender for a year could be very damaging for the individual. What happens if the culprit is finally acquitted?
b. The Goonda Act was framed to deter hardened and habitual offenders, who must be kept behind bars for the peace and safety of the society. Applying the Act to first-time offenders will be too harsh that militates the principle of individual freedom.
c. Cyber crimes can vary greatly in their severity – from fraudulent withdrawals of money to sending vulgar pictures to sending cruel jokes to innocent satires taken offence at by the receiver. It has been observed that most people arrested for such offences are let off by the courts subsequently. Only the hackers and fraudsters get jail sentences under section 66A of the Cyber Crime Act.
d. The members of the LGBT community now come under the Goonda Act. The section 377 of the IPC has been the matter of sharp difference in opinion even among eminent jurists, sociologists and human rights campaigners. The LGBT community will find the Goonda Act hanging like a sword over them, although these people seldom disturb the law and order situation.
e. The crimes like molestation, rape, sex with minors, misuse of cyber space have strict laws in place empowering the prosecution to bring the guilty to justice. Those arrested under the Goonda Act have very often been granted bail by High Court, but the relief comes months of being confined in jail. Quite clearly, detention under the Goonda Act is always looked at with suspicion by the higher courts. If this is so, bringing such a wide range of crimes under the act appears regressive and vengeful.
Considering the above points, the Madras High Court has ruled that even one offence is enough to invoke the law in certain circumstances, but incorporating it as a statutory power may violate constitutional guarantees.
So, the police, lawyers of both sides, and the judges should work hand in hand to conduct trials efficiently and speedily so that the guilty go behind bars and the innocent are acquitted with the minimum of incarceration.
A just and progressive society must eschew the temptation of instant punishment to the suspect. Individual liberty is inviolable and sacrosanct.