The Indian judiciary needs to be more sensitive in dealing with rape cases and not fall back on erstwhile sexist and misogynistic views that have emerged in numerous judgments say the authors.
The Indian judiciary is facing a crisis. The judiciary's response to rape cases, specifically, rape survivors seems to fluctuate between insensitive and thoughtless to sexist and misogynistic.
Two recent incidents highlight this crisis. On July 15, 2020, it was reported that a Civil Court in Araria district of Bihar had sent a gang rape survivor to jail on grounds of disrupting court proceedings. Her only crime was having an emotional outburst and a nervous breakdown that emanated from the Court's request to repeat her trauma over and over again. What seems to be a natural reaction for any rape survivor was misconstrued as "contempt of court".
Similarly, on June 22, 2020, a bench of Karnataka High Court had made controversial remarks against a rape victim in a bail order. The remarks were later expunged from the order after a public outcry. These incidents and "bad judgments" are not isolated moments in India's judicial history. On the contrary, they are quite common. The origins of these bad judgments are deeply attached to India's colonial history, specifically found in colonial-era rape laws and subsequent judicial pronouncements.
The Indian rape law finds its origins in the English laws. The English law on rape went through major changes in the seventeenth-century by a jurist named Sir Matthew Hale. According to him, rape "is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent" It was Hale who relied heavily on the "character" i.e. the "prior sexual experience of the woman". Hale argued that there should be a presumption of a false charge when the character of the survivor was questionable linking to her sexual history.
This definition provided by Hale came across as a protectionist measure for the male defendant and prejudiced the female accuser as a non-credible witness whose behaviour, character and body had to be scrutinised to corroborate her claim. It is this same presumption devised by Hale which women in India are still subjected to-character assassination followed by presumptions of false charges.
Hale's jurisprudence was just the beginning. The use of class and caste as a means to discredit the survivor has been extensively documented in Elizabeth Kolsky's work "the body evidencing crime: rape on trial in colonial India 1860–1947". Kolsky cites various examples where she explains how the colonisers used caste or class to gauge the reliability of the version of events stated by survivors.
One example cited in her work is Dr. Norman Chevers, a physician in the Bengal Medical Services. Chevers went on to state: "In India, the deceit inherent in the character of the lower class of natives surrounds all judicial investigations with an atmosphere of obscurity." Chevers' ideas formally staged the medico-legal approach to rape in colonial India.
His approach was pitched as a means of protecting defendants from false charges. The resultant effect of this approach was to treat rape survivors and victims with suspicion. The colonial manuals on medico-legal jurisprudence discussed at great length on the abstract question of whether Indian women of certain castes and classes could be raped and proposed various ways to determine when they were lying.
Another aspect discussed by Kolsky was the role of medical jurisprudence while dealing with rape cases. For that, she cites the example of James Gribble who laid down medical outlines and contours for determining a case of rape.
Gribble in his work, "Outlines for medical jurisprudence in India", instructed the examining doctor to note the following about the survivor: "Whether she has the general appearance of a person addicted to self-abuse or masturbation, Whether the breasts are virginal or show signs of having been manipulated, and whether general injuries or marks of violence on the body of the female could have been self-inflicted." His work made the survivor's version subjected to unnecessary scrutiny and suspicion.
When Modi's Medical Jurisprudence and Toxicology, a commonly used text on medical jurisprudence in India was published in 1920, it carried a similar level of distrust towards the survivor. It said: "It is necessary to prove that the resistance offered by the woman was up to her utmost capability and that every means, such as shouting, crying, biting, beating, etc., had been tried to prevent the successful commission of the act. The act is regarded as rape if it is accomplished after the woman has yielded from fear, duress or complete exhaustion."
Modi's texts negated concepts such as passive submission by rape survivors arising out of a catena of reasons such as unequal power structures, fear of life, or loss of senses due to the sheer trauma. To date, Modi's medical jurisprudence is one of the few texts often used by Medical colleges in their teaching curriculum. It is also heavily cited in judgments that deal with rape cases.
The colonial definition of rape, the constant disbelief of a survivor's ordeal, and the unnecessary focus of "resistance" by the rape survivor is reflected in the judiciary's response to these cases post-independence. The case of Mahmood Farooqui v. State (GNCTD) is a classic example of how colonial ideologies unconsciously resonate in judicial pronouncements.
The Court in Mahmood Farooqui case stated that a feeble "no" cannot be construed as a denial of consent. The lack of physical resistance on the prosecutrix's part was seen as a consenting act which led to the acquittal of the accused. The Court failed to take into account the fear that the complainant underwent in this case. Instead, reliance was placed on the prosecutrix's sexual history with the accused to interpret the blurred lines of consent in favor of the defendant.
There was also a distinction made between conservative and educated individuals, creating different standards that were to be applied in adjudicating their rape cases.
Similarly, Bhanwari Devi's case in 1990, has been subject to widespread criticism. The judicial response had emanated out of the colonial logic and the survivor's version was rejected on the basis of caste, class, and a skewed logic of medical jurisprudence.
Kalpana Kannabiran in her book, Tools of Justice – Non-Discrimination and the Indian Constitution, discusses how the Trial Court's decision considered the caste and age differences of the accused from the prosecutrix as grounds to protect them. In addition, the Medico-Legal Cases and the Forensic Science Laboratory report were shown to have no injuries which were used as grounds for dismissing the version of the prosecutrix.
Mitra and Satish in their work have also reported that nearly 700 cases were decided by High Courts and the Supreme Court which were reported in the Criminal Law Journal between 1984 and 2009. In nearly 50% of the judgments spanning over 25 years, the state of the hymen was recorded relying heavily on the medical authority in scrutinising the prosecutrix's version.
In fact, similar colonial beliefs were found in cases of Vikas Garg & Ors. v. State of Haryana, Raja v. State of Karnataka, Pratap Mishra v. State of Orissa among other pronouncements by various State High Courts as well as the Supreme Court in the recent years. It is this colonial hangover, found in various judicial pronouncements which the judiciary needs to overcome to do justice in rape cases.
However, not everything is downhill. There is some light at the end of the tunnel.
The Criminal Law (Amendment) Act, 2013 was an attempt by the legislature to outgrow its colonial roots. In the amended Section 375, an explanation has been added which states that mere non-resistance to the act of penetration will not be regarded as consent to sexual activity. A step in this regard makes it incumbent upon the judiciary to undertake much-needed reforms in their approach. A shift in this paradigm of legal analysis must take into account the individuality of the victim and their trauma irrespective of their social standing and sexual history.
The accounting of traditional notions of what an 'Indian woman' is and their defined 'behaviours' should be discarded.
Even though change is visible, an overturning of the current structures will be brought about through a normative reconstruction of our laws and our social rationality which will be fuelled by larger public debate and discussion, rather than a critique of judgments delivered in individual cases from the confines of a courtroom.
(Revanta Solanki is a Law Researcher in the Delhi High Court. Shivkrit Rai is a Law Researcher in Delhi State Consumer Commission. Views expressed are personal)