How Legal System Fails Women, One Lynching at a Time

Member of Parliament Jaya Bachchan’s remark on 1 December in the Rajya Sabha, in reference to the rape of the 27-year-old Hyderabad veterinarian, were reported as, “I know it sounds harsh, but these kind of people should be brought out in public and lynched.” Given the heinous nature of the crime this sounded like a rational response. Certainly, the brutality of the rape has led to a collective societal revulsion for the four men who have since been killed in a police “encounter.”

Yet, how many lynchings would be necessary in order to address a crisis that seems to continue unabated? 

While the horrific 2012 gang rape in Delhi had transfixed the world (as has the Hyderabad rape) and drawn attention to a violent epidemic, rape is just one facet of a broad range of violence and discrimination that leads to the deaths of almost two million Indian women a year. Among the causes are not only sexual violence but also domestic violence, family disputes and female infanticide, as well as infant neglect and poor care of the elderly that affect girls and women far more than boys and men.

“Does India have a special rape problem?” asked Noble laureate and economist, Amartya Sen, in response to the rape and murder of the 2012 Delhi victim. Sen observed, “If we go by the comparative statistics of reported rape, India has one of the lowest levels of rape in the world.” By strictly following the official data Sen concluded that though the number of recorded rapes in India was certainly a substantial underestimate, but even if we were to take five times—or ten times—that figure, the corrected and enlarged estimates of rapes would still be substantially lower in India than in the United States, the United Kingdom, Sweden, or South Africa. Yet, the reality of rape is more complicated.

NGOs believe that more than 90% rapes in India go unreported, which is an abysmal level of reporting when compared to reporting of rapes in the United States and the United Kingdom. Unlike in these countries the stigma associated with rape in India blames the victim. Sen is right to point out that rape is a symptom of a larger disease which is female disadvantage in every facet of life. India ranks dead last among G20 nations in policies that safeguard women against violence and exploitation and a 2018 poll of experts ranked India as the most dangerous country for a woman, even over war-torn Afghanistan and Syria.

But Bachchan’s remarks are not about the reality of rape or about gender inequality. It is about the country’s justice system.

The legal definition of lynching in the United States has been recognised as when three or more persons, one which constitutes a mob, put someone to death extra-legally and without court sanction. Lynching began during the American revolutionary war, and it's named after Charles Lynch whose brother went on to establish the city of Lynchburg in the state of Virginia. Early lynching was sanctioned at a time when there were not many courts and it was difficult to get to them. Further trial would entail time, trouble, and expense. Therefore, as tradition has it, Lynch conducted trials at his home where the accused was brought face-to-face with his accuser. If found guilty, the accused would either be hanged or burned and their bodies dismembered.

A hundred years after Charles Lynch, between the period of 1870 until 1950s, lynching took a new form of vigilantism but this time it became a popular way to punish African Americans who were at first trying to escape slavery and then as a direct form of oppression and intimidation. This period ushered in a widespread campaign of racial terror against newly freed black slaves, of which lynching was a cornerstone.

Most often accused of sexual assault or murders, these men and women were subjected to public hangings where townsfolk would gather to watch the show and cheer and in some instances were allowed to keep body parts as macabre trophies and souvenirs. The exact numbers of how many African Americans were lynched during this period is unknown since many lynching were never documented; the National Association of Advancement of Colored People or NAACP gives a rough estimate of 4,743, between 1882-1968, of known lynching victims.

More recently, police and military forces in Philippines, Colombia, Nicaragua and Mexico have been accused of drug related extra judicial killings and lynching. Human Rights Watch has accused Philippines police force of generating a “kill list” where accused—or even suspected—drug users and dealers are routinely murdered. The president of Philippines, Rodrigo Duterte, has gone on record to say that the government would not punish members of public who will kill a drug dealer or an addict. According to Human Rights Watch this policy has been devastating where men and women have been gunned down in the streets, left gagged and bound in pools of their own blood, with crudely drawn signs left at the scenes declaring them “pushers.”

While India’s justice system has failed on multiple fronts, women’s safety is one area it has perhaps failed most miserably. Victims face significant barriers including hostile conditions and questioning at the police stations, pressure to withdraw their cases, or political threats of transfer of police officers who may consider investigating the crime; once charge-sheeted by the police and sent to trial the case can languish in the court system for decades.

But as these high-profile rapes get media attention, Bachchan and others wrongly focus on individualising the crimes and the criminals. Lynching is nothing but subverting of established constitutional judicial processes. International comparisons reveal that vigilantism does not thrive in societies in which an appropriate amount of resources and skill are brought to bear upon the administration of criminal justice, adequate provision of policing, prosecution services, courts of law, and correctional facilities.

India has both a female disadvantage problem and an incapacitated justice system, neither of which can be fixed by lynching and police “encounters.”

Is vigilante justice the last resort of the unprotected or the abject failure of rule of law? History shows that the unprotected will not be served by vigilantism or lynching but only by the establishment of an efficient, functional, and equitable legal system.

Shakuntala Rao teaches at the Department of Communication Studies, State University of New York, Plattsburgh. The views are personal.