There are ways to address the total indifference to sexual violence without taking short cuts that could ultimately further imperil the rule of law in India, says Vanita Gupta, Deputy Legal Director, American Civil Liberties Union, and Director of the ACLU's Center for Justice.
Twenty-one years ago, my Ammaji, my father's mother, was murdered during a robbery in her house just outside New Delhi. No one was ever arrested or charged or tried for this crime. In fact, there was practically no police investigation into the matter.
The police came by the house twice to meet with my father and my father's brother as the rest of the family huddled inside as part of the post-death thirteen day Hindu ritual. The police sat outside the house and never entered to investigate.
The police did not much care to examine the sheet we found that the perpetrators had used to strangle my grandmother or bother to take fingerprints off of the upturned furniture throughout the house.
My family strongly suspected that a particular set of individuals had committed the crime based on numerous factors, but we also suspected that the police received hush money, and gave up on pursuing a criminal case amidst our grief.
We had no faith in the police or in the rule of law.
Today, Indians have righteously taken to the streets to demand justice in the case of a woman savagely gang raped on a New Delhi bus on December 16. The details are horrific and yet Indians know that women are daily brutalised and intimidated in small and big ways.
The protests in India have highlighted the role that the police play in perpetuating sexual violence by, for instance, advocating that rape survivors marry their rapists, but also the failure of a justice system that takes years to adjudicate a sexual assault case in the rare instance that one is brought and that seldom yields a conviction.
It has surfaced the commonplace practice of street sexual harassment of women ('eve-teasing') that enables and creates space for violence and intimidation.
Sexual violence is by no means unique to India; indeed, it is a global problem that defies geographic boundaries. Just this week, The New York Times covered multiple stories of now well-documented sexual abuse in the US and the UK that officials for decades ignored and refused to investigate.
But Indians moved to action by the December 16th tragedy are now protesting and demanding justice and change. I am proud that men and women and children are standing side by side day after day to ensure that this particular rape victim did not die in vain.
From where I sit, this terrible crime looks like a tipping point for Indian activists who have demanded -- for years -- that the culture of impunity for those who commit sexual violence must end.
But I am also concerned. Many protestors are demanding 'swift justice' and the death penalty, some even advocate for a new law to permit the execution of juveniles in light of the alleged fact that the most vicious perpetrator was the seventeen year old in the group. There is a serious call for 'mandatory chemical castration.'
The Indian Bar Association had refused to represent the defendants and the Saket Bar Association boycotted their defence because of 'how heinous the crime is.'
A number of female lawyers had stated that no lawyer should represent the alleged perpetrators. (Subsequently, all the accused found lawyers to represent them.) While I understand -- and I feel -- the emotional weight of this case, and of the years of corruption and impunity that preceded it -- the answer cannot be to further diminish the rule of law and human rights in India.
Instead, Indians concerned about women's rights and a fair criminal justice system should join those advocates who are seeking real and permanent legal and cultural reform.
As an American lawyer who has dedicated her career to US criminal justice reform and as a feminist of Indian origin, I want nothing more than to see something good come out of such a terrible crime. But US experience with criminal justice policymaking reveals that enacting reforms in the heat of particularly horrible crimes can yield unintended consequences far beyond what triggered the laws to begin with and that then take decades to undo.
We need a rational conversation about how to prevent such acts from being committed in the future -- which involves confronting a misogynistic culture and creating a justice system that is accountable and professional -- and that people believe in human rights and the rule of law.
There is a difference between a justice system that adjudicates complaints effectively while protecting due process and 'swift justice' which assumes that the rule of law can be shortcut when we feel certain that the defendants are guilty, and so do not deserve a defence.
The experience in the US and internationally has been that such shortcuts in one case later get used on the most vulnerable members of society; ethnic minorities, and the poor.
Just as I argue in my US-based work, one cannot trust a diseased legal system to administer the death penalty fairly. I realise that it will be hard for people to hear this in light of what took place on December 16th.
But swift justice in this woman's case will not result in a systemic transformation of the police and the criminal justice system or in the way women are treated in society. It will not result in a legitimate criminal justice system that people have faith in.
It may satisfy the hunger for revenge, but it will not provide real retribution and it will not move us closer to the rule of law.
Many activists and advocates in India are engaged in a thoughtful conversation about what reforms are required -- they are getting concrete about police reforms, reforms to prevent the inexplicable delays in the justice system while protecting due process, and the need for culture change. They should not be fobbed off with cosmetic changes and hasty actions.
There are ways to address the total indifference to sexual violence without taking short cuts that could ultimately further imperil the rule of law in India.
This victim, my grandmother, and the victims of all the dismissed, denied, unreported, uninvestigated and abandoned cases deserve real change.
Vanita Gupta is Deputy Legal Director, American Civil Liberties Union, and Director of the ACLU's Center for Justice, which houses the organisation's criminal justice reform, prisoners' rights, and capital punishment work.
She leads the ACLU's National Campaign to End Overincarceration.
In addition, Vanita, the first winner of the India Abroad Publisher's Award for Special Excellence, is an adjunct clinical professor at the New York University School of Law, where she teaches and oversees a racial justice litigation clinic.
