India's Judicial Apathy for Women
In the decision granting bail to the accused that was rendered by the Hon’ble High Court of Karnataka in Sri Rakesh B v State of Karnataka, Justice Krishna S Dixit observed:
“the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep is unbecoming of an Indian woman; that is not the way our women react when they are ravished.”
The said observation has since been deleted from the order post responses from the civil society citing the deeply entrenched misogynistic and patriarchal connotations. However, it is worth noting that this is not the first time and possibly, will not be the last time the guardians of the Indian Legal System would produce judgments that hold women, specifically Indian women, to a set of standards that are informed by outdated Victorian morality.
In the late 1970s and the early 1980s, three cases of custodial rape led to amendments in the Indian Penal Code in 1983 - The Rameeza Bee rape case 1978, the Mathura rape case aka Tukaram and Anr v State of Maharashtra 1978, the Maya Tyagi rape case 1988. The survivors were from socially and economically disadvantaged backgrounds. Their testimony was suspected and they were revictimized. Rameeza Bee was accused of being sexually promiscuous and was convicted of enticing minors into prostitution. Maya Tyagi was accused of being a dacoit. Mathura, who had a lover, was castigated by the Supreme Court as being habituated to sex. It was further observed that there was no stiff resistance from Mathura indicating that the intercourse was a peaceful affair. In effect, the apex Court failed to distinguish helpless submission from consent.
The three judgments clearly sacrificed the human rights of women guaranteed by the Constitution of India. In the amendment to the IPC that followed, Section 376 was expanded to include custodial rape. Further, the onus of proof was shifted from the survivor to the accused.
Following the recommendations of the Law Commission of India in its 84th Report that was made in 1980, the Criminal Law Amendment Act 2003 did away with the admissibility of past sexual history of women in evidence. The Criminal Law Amendment Act 2013 inserted Section 53A of the Indian Evidence Act which states,
“where the question of consent is in issue, evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.”
The proviso to Section 146 that was also inserted by the 2013 Act states,
“it shall not be permissible to adduce any evidence or to put questions in the cross-examination of the victim as to the general immoral character or previous sexual experience, of such victim with any person for proving such consent or quality of consent.”
However, even the most seemingly positive judgments are not based on the bodily integrity or agency of women. Rape remains a question of honour and chastity. In State of Maharashtra v. Chandraprakash Kewalchand Jain, it was observed that since India was a conservative society unlike Western permissive societies, it was unlikely that a woman, more so a young girl, would stake her reputation by levying a false charge concerning her chastity.
The sharp contrast between an Indian/traditional woman and a Western/modern woman was well laid out by the Court while delivering the seemingly positive judgment where it held that refusal to act on the testimony of the survivor in the absence of corroboration, as a rule, was adding insult to injury.
In Rohit Chauhan v State NCT of Delhi (2013), the Delhi High Court cast doubt on the testimony of the complainant since she appeared to be an ultra-modern lady who would not be vulnerable enough to not raise her voice if she were immensely exploited over such a long period of time. The Court cited Mohd. Iqbal v. State, 2009, where it observed that it is the prime responsibility of the woman in the relationship or even otherwise to protect her honour, dignity and modesty. A woman should not throw herself to a man and indulge in promiscuity, becoming a source of hilarity. It is for her to maintain her purity, chastity and virtues.
To the judicial mind, Indian women, bound by gender roles and patriarchal notions associating her sexuality with her honour, were less likely to lie about rape. While her Western counterpart was more likely to lie about sexual assault for financial gains, revenge, publicity or even out of misandry. An Indian woman is the embodiment of honour. Rape is rarely looked upon as the violation of sexual autonomy of a woman. A virginal daughter or a sexually loyal married woman is representative of the ideal Indian woman even though both these representations reduce women to the sexual property of her father or her husband. Thus, a sexually active Indian woman becomes a source of hilarity.
The order of the Hon’ble High Court of Karnataka that expects a certain behaviour from a victim of rape can be placed within this larger socio-legal context. Without a doubt, it is for the Court of Law to judge the cases before it. However, the observations that the Court makes in the process can have problematic implications for society as a whole.
The Court called out the conduct of the complainant where she “agreed to spent time with the accused until morning”, did not “object to consume drinks with the accused”, went with the accused “to her office at 11 pm” and “falling asleep after the perpetration of the act” as reasons to disbelieve her testimony. The precedent that is set effectively holds a woman accountable for the criminal behaviour of the man. It further assumes consent to sex from the externalities that preceded the act. Policing the conduct of the woman and holding her to outdated standards of Victorian morality is reflective of a patriarchal society that attempts to condition its women. Women are classified into categories such as “easy/loose” and “difficult/good” based on her sexual choices. Traditionally, control of a woman’s sexuality was quintessential to ensure the transfer of property to the man’s own progeny.
Psychological research on the Rape Trauma Syndrome classifies three stages a survivor goes through post the assault. First is the acute stage where the person may appear controlled as if nothing happened, or shocked as in disbelief, or expressed as in agitated. Second is the outward adjustment stage where the survivor may seem to have resumed a normal lifestyle but might experience internal turmoil resulting in maladaptive coping mechanisms such as drug abuse. The final stage is the renormalization stage. A more empirical model is the Post Traumatic Stress Disorder model which in turn can lead to eating disorders, anxiety disorders, depression and obsessive-compulsive disorder. Thus, the human mind is a social formation characterised by experiences that are culturally and socially so complex as well as diverse that there can never be a generalization on post-assault behaviour. While one survivor can be inconsolable, another might be in denial. Thus, the Court must not generalize on “how Indian women would behave when they are ravished.”
The usage of the term “ravished” instead of “sexual assault” is also problematic. The Oxford Learner’s Dictionary gives two meanings to “ravish”, first, to force a woman to have sex; second, “to give somebody great pleasure.” The term ‘sexual assault’ underscores violence while ‘ravish’ is a term that has become common today in popular culture to denote passion. Rape is an act of violence, it is not a crime of passion.
It is not unusual of Indian Judiciary to pronounce judgments where the act of rape seems like a sexual adventure. In Phul Singh v State of Haryana (1979) the SC states,
“A philanderer of 22, appellant Phul Singh, overpowered by sex stress in excess, hoisted himself into his cousin's house next door, and in broad day-light, overpowered the temptingly lonely prosecutrix of twenty-four, Pushpa, raped her in hurried heat and made an urgent exit having fulfilled his erotic sortie.”
The Court further observed that the perpetrator was a hyper-sexed homo sapien with no antecedents and was capable of being transformed into a balanced person given correctional courses. It is noteworthy that the time period of this judgment was in the late 1970s when Mathura and Rameeza Bee were discredited as being sexually promiscuous.
The Karnataka High Court also stated that it was unnatural that “she did not approach the Court at the earliest point of time when the petitioner was allegedly forcing her for sexual favours.” This is despite the fact that she had reported the rape the next morning. At this juncture, it is worth noting that in Banwari Devi case from Rajasthan, the sessions judge acquitted the accused because the immediate report of the rape by the survivor was unnatural. On the contrary, in State of Haryana v Prem Chand (1989), the judges of the apex Court gave less than the mandatory minimum punishment owing to delay in reporting the rape. Here, she had reported the rape five days later.
Casting doubt on the testimony due to delay in reporting stems from the male standards of reasonableness. Women are socially conditioned through gender roles to be tolerant. It is quite common sexual abuse not involving penetration is brushed off as ‘nothing’ by even the custodians of social justice. In 2013, following the Criminal Law Amendment Act, the definition of sexual assault was expanded by inserting Section 354A of the IPC. However, a change in Law need not necessarily reflect a change in societal and legal mindset. It might happen that a woman would report sexual assault only when it crosses all boundaries and she has reached her breaking point.
It should not be forgotten that we are a democracy where the judiciary and the police are still looked upon by a commoner with apprehensiveness. In addition to this is the association of honour of the community or family with the virginity of the girl. Sexual assault is established to be a demonstration of power over a community by another in the wake of conflict between the two. The survivor is cast away by her family and ostracized by the community for no fault of hers. In the recent past, women’s right activists have raised slogans such as, “my honour does not lie in my vagina” and rightly so.
In India, rape is also heavily politicized. It is portrayed as the political failure of the ruling party during election campaigns by rival parties. Cases such as Unnao clearly show the link between criminalization of politics, police - politician nexus and sexual assault. The apex Court had to intervene and transfer the case to Delhi to ensure justice.
The judicial mind also seems to impose restrictions on a woman’s life post twilight in addition to questioning her character. What time of the day is the right time for a woman? It is no license to rape a woman if she is out post 6.30 pm. In Nirbhaya case, defence lawyer AP Singh had made victim bashing comments on why she was out at 12.30 am. It seems that for the judiciary to spur into action, a woman has to lose her life. Until then, her testimony will be cast doubt upon by citing time of the day.
The alleged sexual harassment happened at the woman’s workplace post office hours. In Banwari Devi case, the State government refused to accept responsibility since she was assaulted on the fields.
In Visakha v State of Rajasthan (1997), the SC had laid down guidelines for making workplaces safe for women at every step. This led to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The connection drawn by the Court in Sri Rakesh B v State of Karnataka between availing of the services of the accused for two years and consent to the alleged sexual assault does not appear logical. It has to be reiterated at this point that the past sexual history of the woman is no longer admissible in evidence.
The judgment of the High Court of Karnataka has to be seen in the context where according to the latest annual report of the National Crime Records Bureau, rape is the fourth most common crime against women. In 2018, 33,356 rapes were reported in India, 93.9 per cent of which was committed by someone known to the survivor. It is also noteworthy that only 27. 2 per cent of the cases reported resulted in conviction.
Article 15 of the Constitution assures equality to women by the prohibition of discrimination on grounds of sex. Article 51A enforces the citizens of this country to renounce practices derogatory to the dignity of women. Article 14 ensures the right to equality before law and equal protection of Law. Article 19(1)(g) professes freedom to practice any profession or to carry on any trade, occupation or business. Here, it becomes imperative to ensure safe workplaces for women to uphold the spirit of Article 19(1)(g).
The judicial system is looked upon as the guardians of the supreme law of the land, the Constitution of India. It is disheartening when the legal system acts as guardians of Victorian morality and indulge in survivor/victim-shaming through character assassination of the woman. It feels ideal to conclude by looking at the Justice Verma Committee’s report that was also reiterated in the open letter that was written to the Karnataka HC by civil liberty groups:
“Attitudinal changes to correct the aberration of gender bias have to be brought about in the institutions of governance to improve the work culture, and in civil society to improve the social norms for realizing the constitutional promise of ‘equality’ in all spheres for the womenfolk.”
It is the seemingly little things in daily discourses that add up to constitute grave offences. A change in societal mindset by being conscious of the classist, casteist, communal, regional, racist and patriarchal remarks in daily dialogues in addition to strict legal provisions shall enable Indian women to reimagine their future in this country.
Gangoli, G. (2011). Controlling women’s sexuality: rape law in India. In N. W. Gangoli, International approaches to rape. Bristol University Press; Policy Press.
Kumari, V. (1999). Gender Analysis of the IPC. In A. D. Parashar, Engendering Law: Essays in Honour of Lotika Sakar (pp. 139-160). Lucknow: Eastern Book Company.
Norton Rose Fulbright. (2015). Character Evidence in Rape Trials. Bangladesh Legal Aid Services Trust.
Views expressed are solely those of the author.
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About the Author
Devi is a BA Social Sciences graduate from TISS with interdisciplinary exposure to Gender, Development, Environment and Post Reform Transformation in addition to five major social sciences subjects. She was an active participant in national and international conferences where she presented research papers. Devi has also won numerous prizes at the national level and was selected for HPAIR as well as the UN Winter Youth Assembly. An LL.B. student at Campus Law Centre, Delhi, she is active in social work towards ensuring access to quality education. She identifies herself as a humanist and likes practising hatha yoga.