Lined up naked under the unrelenting light of the midsummer sun, the men of Rajasthan’s Mogya Beh village stood silently as the police examined their genitals, one by one, searching for bruises and cuts. Earlier that morning in July 2018, police search parties looking for a missing seven-year-old girl had found her body tossed in the scrubland, the earth dyed with her blood. Finally, one teenager was picked out of the crowd. The inquisition in the village schoolyard ended, giving way to a criminal trial that would see farm-labourer Komal Lodha sentenced to life imprisonment for rape and murder.
As rage sweeps across the country over the rape and murder of a trainee doctor in Kolkata, Lodha’s trial seems like a model of the fast, effective justice that protestors are demanding. Except, that is, for one disturbing fact: Forensic analysts were able to recover the DNA of two men from the victim’s body and clothes—but neither matched with the man who is now in prison.
Though Indian politicians have come to excel in expressing outrage against sexual violence, they’ve done little to equip the criminal justice system to address it. There has never been a national audit of the state of police preparedness to investigate sexual violence. What’s there is a steady drip of damning revelations.
Twelve years after the rape-murder of a physiotherapist in New Delhi catalysed massive protests, it’s clear the criminal justice system is depressingly under-resourced. Ludhiana hospitals have been found lacking simple, cheap evidence-collection kits; hundreds of trials are held up in Haryana because there are no DNA testing sets available. Local police have often sent samples to laboratories 10 days or more after their collection, sometimes rendering them useless. Forensic laboratories are hopelessly backed up, to the growing frustration of judges.
Legislation introduced after 2012 hasn’t helped. The national conviction rate remains below 30 per cent, less than half of that in the United Kingdom. There’s no telling if the suspect held for the Kolkata case is guilty, but the Lodha case reveals the criminal justice system just doesn’t care about the truth.
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The rule of misogyny
From its beginnings in the mid-19th century, modern police largely ignored violence against Indian women by Indian men, seeing it as a matter that involved custom and the family rather than the state. “The rule of colonial indifference,” the historian Elizabeth Kolksy has called it. Following the English legal theorist Matthew Hale, colonial judges worked from the presumption that women often consented to sex, but then lied about it. “False charges are constantly made and so easily proved as charges of rape,” judge DI Money argued in 1857.
In one 1851 case, a judge had held that it was impossible for a young healthy woman to be raped by a drunk man. In several other cases, Kolksy records that women alleging rape found themselves facing judicial accusations of adultery instead.
The burden of misogyny fell most heavily on the poor. In 1907, when the Kathiawar chief court heard the case of Bai Galal, an itinerant beggar dragged from a temple platform and raped by two men, it chose to disregard eyewitnesses’ testimony as well as injuries to her body. “I am compelled to think that with people of this low class,” the judge explained, “such slight injuries are explainable other than by violence.”
These attitudes entrenched themselves in the post-Independence criminal justice system. The text relied on by generations of Indian criminal justice officials, Jaising Modi’s Medical Jurisprudence, asserted that proof of rape required victims to demonstrate that “every means, such as shouting, crying, biting, beating, etc., had been tried to prevent the successful commission of the act”.
“False charges of rape may be easily set up by girls at the age of puberty,” another standard textbook published in 1963 claimed. “Girls often enough invent attacks by quite unknown persons or, graver still, they bring false accusations against persons named.”
These values embedded themselves through the judicial system. In 1977, the Supreme Court acquitted three men of raping a pregnant woman in Odisha, noting she “silently abided to have the intercourse with the appellant without putting up any resistance, except shouting”.
When evidence was irrefutable, judges often went to extraordinary lengths to excuse the actions of perpetrators. In a 1978 judgment, the Supreme Court reduced the sentence of a rapist from four years to two, arguing that a “hyper-sexed homo sapiens cannot be habilitated by humiliating or harsh treatment”. The court suggested the rape was, in part, extenuated by new sexual mores, including “lascivious dating and mating by unwed students”.
Lodha’s case, at first glance, appears to suggest the attitudes of the criminal justice system are changing. The story, though, ought give no reason for comfort.
Also read: When ‘good men’ are silent on rape, every Indian woman suffers. So we say ‘yes all men’
The usual suspects
Framed by former chief minister Vasundhara Raje Scindia’s election campaign in 2018, the Mogya Beh case involved unusually high political stakes. Local police, conscious of the potential electoral fallout on her campaign, pushed hard to make an arrest. An investigation by journalist Abhinay Lakshman threw up evidence that the authorities tutored witnesses to suggest Lodha had been seen with the victim just before she disappeared. The charges against Lodha were filed in just 10 days—eight weeks before forensic test results became available.
Those tests, documents seen by ThePrint show, cast substantial doubt on Lodha’s guilt. Experts at the Forensic Sciences Laboratory in Jaipur concluded that the DNA recovered from the victim belonged to two separate men, neither matching with Lodha. The semen from one of the two men had, inexplicably, also ended up on underwear recovered by police from Lodha—strongly suggesting a crude attempt at planting evidence.
Even medical evidence of Lodha’s age was carelessly dealt with. School records suggesting he was a minor at the time of the crime, for example, were dismissed on the basis of a medical opinion from a doctor with no qualifications in radiology.
Lodha was convicted in September 2019, trial court records show, with no discussion at all of the DNA report: The legal-aid counsel provided to him might — it’s possible — have misunderstood the significance of the determination. The issue wasn’t argued during Lodha’s appeal to the Rajasthan High Court, either, nor in the Supreme Court, which upheld the conviction but sent the case back to Jaipur for reconsideration of his sentence.
Lawyer Nitin Jain, who represented Lodha during the second round of High Court hearings in 2022, finally noticed and raised the DNA issue. Appalled, the bench of Justices Pankaj Bhandari and Anoop Kumar Dhand ordered the police to reinvestigate the case. This judgment was reversed the same year, though, with the Supreme Court rebuking the high court for addressing questions of fact not before it for consideration. Lodha’s revision petition was dismissed in 2023.
Even though the Supreme Court might have legal reasoning on its side, it left open the questions over the facts which have put Lodha in prison. There is good reason to suspect neither Lodha nor the victim have received justice.
Also read: I am a woman doctor and I was taught to keep quiet. Kolkata rape shattered my bubble
Ties that bind
Fifty years ago, the Supreme Court’s acquittal of two police officers charged with the rape of an Adivasi woman ignited a feminist rebellion against sexual violence. To governments, the judiciary, and police forces, the women’s movement posed a deep challenge. The state’s legitimacy as guardian of women came under assault, compelling it to respond. The criminal justice system responded to these new pressures by using the same tools routinely unleashed to solve other kinds of crimes: Torture, planted evidence, and dubious witness testimony.
The police officers alleged to have executed four rape-accused men in Hyderabad, beaten a suspect to death in Jaipur, or the prisoner found hanging inside his cell in Kashmir: Each of these were victims of a criminal justice system flailing in the face of demands for justice.
Like all other complex crimes, rape is difficult to investigate and prosecute. The eyewitness testimony of the novelist Alice Sebold, and junk forensic science, led to the wrongful incarceration of her alleged rapist for 16 years. Five teenagers wrongfully accused of raping a jogger in New York’s Central Park—the case that launched former President Donald Trump’s political career—even confessed to their crime, though DNA evidence eventually proved their innocence.
Even in highly resourced police systems, sadly, a large number of rape perpetrators are never identified—although new forensic techniques are enabling some crimes from decades ago to be solved.
The trial and punishment of rape have ultimately been about upholding the honour of men—not justice for women. The treatment of rape suspects like Lodha is intended to show that patriarchy does, after all, work. This is the logic of lynching, not justice.
Praveen Swami is contributing editor at ThePrint. He tweets with @praveenswami. Views are personal.
(Edited by Humra Laeeq)
No one wants instant noodles as justice. Or kangaroo courts. Bumping off suspects. Sometimes the pressure on the police to produce results can produce distortions. 2. However, there is an epidemic of crimes against girls and women. For reasons that are difficult to understand, often accompanied by exceptional brutality. A time for effective law enforcement. Tough, professional policing, fast track courts. Capital punishment more the norm than the rarest of the rare exception. 3. There are sociological factors that need to be addressed as well, for the long term.