India Fact of the Day

In India it is illegal for the police to arrest a woman after dark. The law apparently stems from a case decades ago when a woman was arrested at night and raped by the police. The law doesn’t seem like the second-best way to prevent police rapes let alone the best way. But what should an enlightened court do? Rape is already illegal. The courts create law but the law doesn’t rule. Thus, instead of obliging the police to control themselves the law gives women the grounds to refuse arrest. Imperfect but perhaps easier to monitor.  In India the state is so weak that third and fourth best solutions may be the only ones possible.


Police in India can worsen the situation you are in if you are a common citizen.
Typically there is no action unless there is a incentive- if you have connections in senior police ranks, political leaders or certain NGOs/Media etc- then they can do anything that is asked.

I did a semester at an Indian business school and the Professor was describing some particularly bad practices in rural finance one of the students said, "There ought to be a law against that!". To which the Professor responded, "There's a law that says that you must drive on the left side of the road." All the students nodded their heads, the teacher having won the argument.

Good post.

The rape law in India is not gender neutral - according to it a woman raping a man is not considered rape! And in spite of strongly hating feminists, and unlike some feminists even, I can't get myself to say with full confidence that the law should be made gender neutral (in contrast, the adultery law in India too is not gender neutral either, and I don't see any excuse to keep it that way).

This perhaps enables Indians to better appreciate the lesson that laws have to prioritize ground realities over theoretical elegance.

Actually, the bigger issue is the attitude about rape in India (i.e., it's tolerance), not just the risk of rape by the police.

Hypothetical counterpoint: If Singapore took over a random Indian city, rape (both of the police and non-police variety) would plummet.

The point being, culture is a necessary criteria, but not a sufficient one. Swedes living under Indian institutions would rape much less. But even holding culture constant, putting Indians under effective institutions would effectively eliminate the rape problem.

Some Asians still remember what happens when the Japanese took over cities in the mainland.

There has been tightening since a huge public outcry couple of years back.
Before this it has been reporting issue - women face a tarnished image due to rape and it affects their lives in the mostly arranged marriage system. So it was under reported.
In cities there is a huge migration of youth and fraction of them resort to criminals activity. As they are away from families and disconnected to urban society - there is no social pressure or family honour to guide them away from these activities.
Government only tries to make stringent laws and are unable to tackle the root cause.
As Minister Sushma Swaraj said - just hang a few rapists and this will stop.
Till last week - women in live in relationship could claim rape on breakup! Now a john she has ruled against it - this law based approach has skewed gender neutrality.
It is a common practice in a breakup of arranged marriage to get husband and his family in jail first - just by alleging fake harassment charges - and then negotiate favourable financial settlement.

"The courts create law but the law doesn’t rule."
Have we given up all pretense of a separation of powers? Was this rule actually created by the courts? I'm I mistaken that the phrase "courts create law" should not be uncontroversial?

Look at it from the perspective of fundementalist libertarians like Alex. Support for libertarian fundementalism in general population 2 percent. Support in the judiaciarty ten percent and falling (now that libertarians are finally being purged from the Republican Party). Strike while the irons hot and all that.

Courts create case law. Courts do not write statutes. "Law" is statute plus cases.

It's just probabilities.

In America if the police arrest a woman after dark, it is more likely that they do so because the police suspect she committed a crime than because they want to rape her.

In India, it's the opposite.

Wouldn't a better solution just be stronger internal affairs departments and very harsh punishments. Seems pretty easy to do a few sting operations: internal affairs (posing as fellow police) hands off an undercover agent posing as an unmonitored female prisoner. Rape-y police make a move, then get the door kicked down. Judge hands down a few thirty year sentences. It would only take a few well-publicized stings to chill the police rapists.

Definitely, but lack of funding, corruption, incompetence and a clogged-up judicial system conspire to make this sort of accountability difficult. That is what Alex means by India having a weak state.

As a Brazilian ambassador pointed out, India is not ready for self-rule and should not have been mademindependent until its population was ready to govern itself.

Pity morons like you were not being consulted. While the process of your fantasies, of "making" India independent was going on.

It is sad to see again, again and again that some guys are unable to practice some badly nedded self-restrain and behave in a civilized fashion in a public forum.

How long do you think India should have waited? Is there an optimum point?

It is like asking when a child will be ready to be on his/her own. I don't know. A few never will, think about some mental issues, for instance. The progress of the colony as the time goes by should be the only thinking conditioning independence, not a weary Engkand or overexcited natives. As Mr. Mao would say, we must seek truth from facts.

While the post itself is excellent and written with sensitivity, in the comments thread racists are coming out of the woodwork to stereotype an entire population.

I agree before tackling their police rape problem India should definitely focus on eradicating racism from the non-Indian world.

The Indian state is not weak, it's the law enforcement machinery in India that is exceedingly weak. Law enforcement reforms are waaayyyy past overdude including Judicial and police reforms.. but non of that is likely to happen soon.

A state is only as strong as it can enforce its laws. I am sure some 'failed states' have some very eloquent constitutions.

It used to be that police couldn't enter a home if the door were opened by a woman. This was one way to hide from things like tax evasion.

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