A-G argues for gender sensitivity in rulings on sexual assault survivors in SC, recommends training judges
There is no doubt that the judiciary has been quite insensitive and vacillating when it comes to handling rape cases and their survivors, sometimes forcing a reconciliation, at other times becoming sexist and overall being guided by a patriarchal mindset. So instead of assuring and encouraging the abused girls, the courts fail them, few of whom anyway register cases with fewer still fighting it out till the end. This is exactly what happened when the Madhya Pradesh High Court directed a man accused of sexual assault to get a rakhi tied by his victim as a condition of bail, implying that any man can absolve himself of guilt and recompense a girl’s dignity by posing as a brother without her consent and changing the predator status at will by becoming the protector. This is worse than the khap mentality that we love to rile about, which advocates that rapists get married to the violated girl in the name of preserving honour. The justice system then becomes equally guilty of violating a girl’s rights. Worst, it destroys her integrity by easing bail instead of denying it altogether. So Attorney-General KK Venugopal has rightly raised the issue in the Supreme Court, saying judges seem to have been “carried away” while passing the order and that they need to be educated. He further called for adding a part on gender sensitisation in the judges’ recruitment exam. It is a sad comment that judges, who are considered learned, informed and seen as notables, are woefully inadequate when it comes to not just gender rights but ensuring humane and equal standards. Unfortunately, this isn’t the first time that such bizarre statements have been made in a sexual assault case by the sitting judge. On June 22, while granting bail to a rape accused, Justice Krishna S Dixit of the Karnataka High Court said he found the woman’s statement “a bit difficult to believe” and asked her why she had gone to her office at 11 pm and why had she not objected to consuming drinks with the accused, as if proximity implied consent for sex. The judge even felt that it was unbecoming of the woman to have fallen asleep after she was raped, undermining the severity of the physical assault. In July, a civil court in Bihar’s Araria district sent a 22-year-old gang-rape survivor to jail on charges of obstructing court proceedings. In 2015, the Madras High Court, in a highly criticised order, granted bail to a convicted rapist and advised a “compromise” between him and his unmarried victim, who had become pregnant. Such rulings have only prejudiced the affected woman, making her look like a revenge-seeker than a credible victim. Worst, her trauma has only multiplied because the justice system rarely individualises the woman on a case-specific basis but defines her in feudalistic terms and judges her under the cultural umbrella of a desired behaviour of Indian womanhood.
Trivialising verdicts on sexual offences mean that rape adjudication and sentencing are still subject to stereotypes despite legislative reform. It is not like the A-G’s suggestion for gender awareness lessons is new. Training and sensitisation of judges have been recommended and followed since 2013, post the December 2012 gang-rape and murder of Nirbhaya. The Criminal Law (Amendment) Act, 2013 explicitly stated that lack of physical resistance is immaterial for constituting an offence and even broadened the scope of sexual assault. But correspondingly, the judicial sanctification of virginity, chastity and honour being a woman’s most prized possession, in turn, places the burden of proof on victims. So, while the demand for swift justice continues to echo throughout the country, we should also call for the reformation of the judiciary and the restructuring of the Provincial Civil Services (Judicial) exams. With the conviction rate in rape cases abysmally low at 27.2 per cent, archaic rulings do not settle cases but unsettle women further.