Large crimes are prevented when small crimes are efficiently pursued

How can we avoid episodes like the Nirav Modi scam? The bank blames rogue individuals and now that they have been arrested, presumably the problem will not recur. The government says the solution is toughness. “I want to make clear that the government will take stern action against irregularities related to economic matters,” said Prime Minister Narendra Modi. He added: “The system will not accept the theft of public money. That is the key to New Economy, New Rules.”

Finance Minister Arun Jaitley also threatened fire and brimstone: “Those who deviate from that cause must always remember that the consequences will not only be a commercial and civil death as far as their businesses are concerned but the law would be tightened further if necessary to find out where they are and what is the extreme action the law permits against such persons.”

The thinking here is that the problem is localised and must be dealt with sternly so as for it not to happen again. This perspective is not specific to white-collar crime, and it is a view held generally.

For example, let us have a look at sexual violence. The government data suggests that 99 per cent of the victims of sexual violence in India do not report the crime. This is for a variety of reasons that we need not go into here. The political solution is harsher laws. In this instance, the death penalty. In 2002, both the Bharatiya Janata Party (BJP) and the Congress pushed for hanging as a punishment for rape. Is that a solution and is the lack of the death penalty the reason that 99 per cent of Indian survivors of such violence do not report? Of course not. The data journalism website IndiaSpend reported that India’s conviction ratio for rapes was 26 per cent in 2006, 28 per cent in 2014, 29 per cent in 2015, and 25 per cent in 2016, meaning three out of four accused were acquitted.

The talking-tough approach is to some extent built into the BJP code. It subscribes to drawing room solutions. In 2013, after the Nirbhaya incident, Sushma Swaraj said that “nothing short of death sentence in cases of rape of children and cases involving brutality and barbarity will help.” She was also reported as recommending “shock treatment” for “perverts and sadists.”

They seem incapable of looking at it another way. Instant and violent retribution — or at least its promise — will solve complex governance and societal issues.

The other aspect of seeing things in such a localised manner is that there will be some additional process. The finance ministry has now asked public sector banks to examine all bad loans above Rs 500 million to see if there is ‘fraud’ in them. The assumption here is that banks have no systems to assess criminality and must be specially instructed to do so.

What were the lessons learned and systems put in place after the 1992 securities matter involving public sector banks and the Reserve Bank or the one a decade later involving Madhavpura Cooperative Bank? We’re not sure, but those also had rogue employees. Of course we will see another such scam and another.

The criminal justice system is negotiable, and the experience of it is not the same for poorer Indians. A recent study by Amnesty India had all of the country’s jails send in data on undertrials. One of the aspects covered was Section 436A of the penal code. This qualifies those undertrials, who have served over half their maximum possible sentence, automatically for bail. The RTIs that were returned showed that Madhya Pradesh authorities did not even understand this law. The data was uniformly poor and this is an area of very low priority for all governments, because after the initial tough talk and arrests, interest falls off. That cannot continue if we seek systemic change.

The Broken Windows theory says that large crimes are prevented when small crimes are efficiently pursued and punished. The Indian polity and particularly the BJP believe in the opposite: Death penalty and encounters for the big crimes will deter criminals. As Mihir Sharma wrote earlier this week, about Uttar Pradesh’s encounter spree: “Lawlessness is infectious; if the cops break the law, so will everyone else.”

This is very true. The other thing is that the localised, harsh approach usually fails. It remains limited to strong words. I have written about this in Business Standard before but it bears repeating here. The Supreme Court acquitted individuals in Gujarat’s most famous terrorist incident, the Akshardham case just after the Godhra riots, with these words: “Before parting with the judgment, we intend to express our anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing” (page 280).

What more needs to be said? Even on terrorism, the thing that most angers and disturbs this government, the result of their talking-tough approach stands revealed.

Modi’s appeal to many is that of someone capable of delivering governance through a highly centralised and messianic style. Unfortunately that is not how governance works. Good governance is not easy to do, and it does not depend on one gifted and determined individual.

Its success lies in the boring bits of ensuring due process and doing everything by the book. Not in the flashy and chest-thumping bits that we seem to favour. Do we need new rules? No, we just need to follow the old rules.

The writer is executive director of Amnesty India