The law is an ass, we made an idiot of it

There is little point in demanding that male mindsets need to change before rape is stopped. Mindsets take long to evolve. There will be too many rapes by the time society changes. The entire purpose of rule of law is that it should deter even warped mindsets from translating their misplaced beliefs into criminal acts

Dhiraj Nayyar

India is outraged at the horrific gangrape of a 22-year old woman in the heart of Mumbai. It should be. But why is it not equally outraged at the proceedings of a ‘fast-track’ court in Delhi that is trying four men for the equally horrific gangrape and murder of a 23-year old woman in the national capital nine months ago? If a fast-track court is unable to convict a notorious set of criminals in what is an open and shut case eight months after the trial started, can there be any doubt that in India “the law is an ass” and it is apparently taking the periodically-outraged citizens of this country for a ride?

Exemplary crimes require exemplary punishment, delivered quickly. Other countries which adhere by the rule of law deliver quick justice. In May 2013, law enforcement authorities in Cleveland, Ohio arrested a 53-year old, Ariel Castro, for kidnapping, unlawfully confining and sexually assaulting two young women over a period of ten years. In just three months, Castro was convicted and sentenced to life in prison without the possibility of parole.

In a completely different case, in a crime of an altogether different kind, the Indian-born former head of McKinsey worldwide, Rajat Gupta, was convicted for insider-trading (a white collar crime) in a trial that lasted just three months. Cases of white collar crime like insider trading are often much harder to prosecute. Gupta’s case was not an open and shut one like Castro’s, yet the judicial system was able to reach a conclusion in rapid time. The swiftness of justice delivery matters, particularly when authorities want to set an example to deter future offenders. The entire purpose of rule of law is that it should deter even warped mindsets from translating their misplaced beliefs into criminal acts. AFP

The failure of the Indian law enforcement system – and this includes police, prosecutors, defence lawyers and judges – to deliver swift justice in an exemplary case like the Nirbhaya gangrape only emboldens criminals like the ‘Mumbai Five’ to gangrape with impunity. There is a small but significant probability that the young woman in Mumbai would have been saved her ordeal if her attackers had known that exemplary punishment for rape is handed out, with certainty and speed, in India.

There is little point in demanding that male mindsets need to change before rape is stopped. Mindsets take long to evolve. There will be too many rapes by the time society changes. The entire purpose of rule of law is that it should deter even warped mindsets from translating their misplaced beliefs into criminal acts. India has a fine constitution and an impressive set of laws but neither has succeeded in enforcing the rule of law in its true spirit.

Of course, the rot starts at the top. When a country allows rapists, murderers and other hardened criminals to become lawmakers, there is little reason to be optimistic about the rule of law. But in a democracy, the people must take the blame for electing such persons. Citizens too must take the blame for flouting the law at their convenience with impunity, even if it is something as minor as a traffic violation. Far too many Indians take greater pride in breaking the law (and then escaping the consequences) than preserving it. That is perhaps why our outrage is ineffective in bringing about change.

Charles Dickens’ Mr Bumble was addressing the archaic British law of coverture when he called the ‘law an ass- an idiot’ in Oliver Twist. In India’s case it is the bumbling justice system, and irresponsible citizens, that have earned the law the same moniker. Forget politicians, we should be outraged with ourselves.