It is of utmost importance that the Bench hearing rape cases should be rational, unbiased and sensitive towards the victim
Patriarchy has existed from time immemorial and despite all our talk about the equality of men and women, society sees its evil face everywhere. Patriarchy rears its ugly head in our schools, colleges, families, workplaces, the Parliament, Government and sadly even in institutions entrusted to uphold justice for all citizens at all times.
For instance, in a recent order, while granting a rape accused anticipatory bail, the Karnataka High Court said, “It is unbecoming of an Indian woman to sleep after she is ravished.” Giving reasons for the bail order, the court noted that the complainant’s claim of having slept “after the perpetration of the act” because she was tired was “unbecoming of an Indian woman”. This reason for granting bail was inter alia followed by other factors viz, delay in filing complaint by the prosecutrix and her prior acquaintance with the accused. However, the observation made by Justice Krishna Dixit, about the behaviour of the “Indian woman” post rape, reaffirms the existence of deep-rooted sexism and patriarchal notions, even in the highest constitutional institutions.
These patterns of conservative judicial interpretation can be traced back to the Tukaram vs State of Maharashtra case, till which the judiciary usually focussed on principles like “utmost resistance” by the woman in order to establish her “morality.” This principle of “utmost resistance” was so fragile that it could be precluded merely by having a friendship with the accused. There are also instances where the judges who gave “victim-friendly” decisions ended up fortifying patriarchal and sexist norms through their observations.
The idea of male dominance and sexual morality persisted until 1983, when for the first time, the legislative inclination shifted towards ensuring protection to women and the freedom to live with dignity in society. The Criminal Law (Amendment) Act, 1983 brought major changes to rape laws and inserted Section 114A to the Indian Evidence Act, 1872, which imposed the burden of proving “consent” on the accused, creating a presumption of guilt against the general rule of presumption of innocence until proven guilty.
Interestingly, Section 155(4) of the Indian Evidence Act, 1872 provided defence to the accused to establish the testimony of the rape victim unreliable on grounds of her “immoral character.” Fortunately, the 2002 Indian Evidence (Amendment) Act repealed this provision, prohibiting the use of past sexual history as a proof of her “unchastity” and “impurity.”
Despite many progressive judgments by the Supreme Court post the above-mentioned amendments, the notions and stereotypes of a few judges remained intact and victims of sexual violence were time and again put to the tests of “morality” and “chastity” based on their individual ideas and personal beliefs. Consequently, such redundant precedents created stereotypical parameters to be adhered to by each rape survivor. There have been multiple instances where, though judges have rendered logical and rational judgments, they have used improper words to highlight the injustice suffered by the person.
In the Kamal Nath vs State of Tamil Nadu case, the court stated that “a game-keeper has become a poacher and some of the victim girls were reared to be butchered later when they attained the age.” Similarly, in a rape case involving a seven-year-old girl, the court made regressive observations by using terms like “loss of dignity”, loss of her “purest temple” and her “lost reputation.” Thus, in a sense reaffirming the ancient notion that “the pride of a woman is directly linked with her sexual history.”
It is of utmost importance that the Bench hearing rape cases should be rational, unbiased and sensitive towards the victim. This sensitivity is likely to come only when a woman lends a hand in such cases where the victim has suffered utmost physical and mental trauma. Hence, it is necessary to include women’s opinions by allowing women judges to compulsorily preside over rape cases.
It is worth noting that women judges can bring fresh perspectives and the required level of sensitivity while dealing with sexual violence cases. This was reiterated in the State Government of NCT of Delhi vs Pankaj Chaudhary case wherein the Delhi High Court acquitted a rape accused on the grounds that the victim was a sex worker and was perhaps believed to be of “immoral character.” However, the matter reached the Supreme Court, wherein the Division Bench consisting of women judges, viz Justice R Banumathi and Justice Indira Banerjee, vide an order dated October 31, 2018 set aside the acquittal and reversed the Delhi High Court’s judgment. The Bench ruled that “even if there is some material to show that the victim was habituated to sexual intercourse, inference cannot be drawn towards loose moral character.” A woman of “easy virtue” also could not be raped by a person for that reason, the Bench added.
Furthermore, the need of the hour is to acknowledge the severity of the crime, uphold justice and create prospects for rehabilitation of rape victims instead of asserting and re-asserting that “immense shame” has been brought upon rape survivors and their families.
It should be remembered that insensitive statements not only hurt the person but also take away her confidence and the right to live with dignity. Maybe even more than sexual violence, the victims fear the blame and character assassination that happens in court. Unfortunately, the reality of our society even after over seven decades of Independence remains the same, where we believe that the dignity of the family is related to the virtue and “purity” of a girl and it ends when she loses her virginity outside of marriage.
Hence, not only are women judges needed to make the rape survivor feel confident in her fight for justice but also to change the course of rape trials in India towards a victim-friendly, egalitarian and sensitive space, where the sword of justice cuts the wings of patriarchy and sexism and does not shame the victim of sexual violence.
(The writer is an Advocate. Thiis article is co-authored by Advocate Sabreen Ahmed )