IN India, rape is still a gendered offence. However, it has shifted away from a purely penial penetration offence. A man is now said to rape a woman when he has sexual intercourse with her without her consent or against her will.
Post-Nirbhaya, this definition was changed to include penetration not only by the penis but also by digit or object by a man not only into a woman's vagina and also into her mouth and anus without her consent or against her will.
These changes were obviously made due to the facts in the Nirbhaya case, where the most gross form of brutality was unleashed by a gang against the woman who has come to be known as Nirbhaya by inserting iron rods into her vagina. Surely the name given to her is strange, to say the least, as who in her position would be free from fear?
It has always been an offence that elicits moral outrage but the outrage focused mainly on the morality or immorality of the woman who “allowed herself to be raped”. She has always been told that she “asked for it”, that she had consented to have sex with the man, and that she was lying to cover up her tracks, as there were no marks of resistance on her body.
The “two-finger test” has always been used to check her virginity, and if she was not a virgin, there was no conviction for rape for reasons we need not go into at this stage, except to say that misogyny, and not the law, governed the outcome of the case. But all this can be done and said to the living woman who survives rape.
Rape was seen as an interpersonal act, an act of lust, an act of passion by a man who sexually abused a woman by raping her. In India, a man engaging in non-consensual sexual acts with his wife is not considered to be raping her. Sexual acts without consent are considered “unlawful” only if the woman is not his wife.
The marital rape exception remains in place up to this day, and at least one judge of the Delhi High Court has upheld the validity of the Section on the ground that to invalidate it would be to destroy the “sanctity of marriage”.
Or, as one judge said in the context of restitution of conjugal rights, “To introduce constitutional law within family law is like introducing a bull in a china shop.”
The irony was that the bull was already in the shop, and the demand was to take the bull out of the china shop. While the narrative was made in the intimate domain, it nevertheless normalises all rape as something that naturally happens to women.
Death by rape
What happens when the raped woman is dead as has been happening in several well-documented cases? Surely then she cannot be blamed for having invited the rape? Dead women tell no lies, and neither do dead bodies tell lies. Increasingly, we have seen rape and murder go together over the years. The conscience of society has always been outraged when the raped woman is dead, not necessarily when she is alive.
Rape as atrocity
Rape, when it occurs outside the framework of the family or intimate relationships, mainly when accompanied by murder, evokes outrage. This is a trend I have noticed while dealing with domestic violence. When women allege cruelty by their husbands while they are still alive, they are told they are misusing the law, victimising their husbands and harassing elderly parents.
But when that same woman is dead, it shocks the conscience of the court. Condemnation for the living woman, concern for the dead woman— this seemed to have become a judicial policy as well as a national policy.
Rape and murder, when they happen within institutional settings, demand institutional responsibility. Rape and murder when it happens against the Dalits by upper casts is accompanied by political patronage. Rape in communal stifle becomes a weapon of war. In all these situations, we have a dead woman on our hands, and it is then that the judicial conscience and also the conscience of society seem to be outraged.
There is thus a parallel between the raped and murdered tribal girl child in Kathua; the raped and dead woman in Nirbhaya; Bilkis Banu, raped and given up for dead with her three-year-old daughter and family members murdered in from of her eyes; the raped and murdered woman of Manipur; and the raped and murdered woman in R.G. Kar.
Other women have been raped and killed or died while the investigator or trial was in progress. Is it only when rape becomes an atrocity that is accompanied by extreme brutality or death that our conscience is outraged.
This country first arose to the legal concept of atrocity when the Scheduled Castes and Scheduled Tribes (Prohibition of Atrocities) Act was passed in 1989. Caste injustice was meant to be outlawed when the Constitution came into force.
The Protection of Civil Rights Act of 1955 was meant to ensure equal access to all public facilities for Dalits. By 1989, it became clear that the many forms of injustice against Dalits had not abated but had assumed the form of atrocities such as parading naked or semi-naked, touching with sexual intent, denying lawful land rights, dumping obnoxious substances and bonded labour.
We now seem to have a definition of ‘death-by-rape’ of any woman as an atrocity, which demands public and judicial attention.
Rape comes with context
Rape as a crime has been dealt with isolated from the larger context it is embodied in. The larger settings are often invisiblised and not taken note of by the courts.
We look at rape as a crime that vitiates the so-called ‘honour’ of a woman, a crime committed by the aggressor which needs vindication and punishment. This assumes no doubt that there are some women of ‘honour’ and others who never had honour anyway, so some men may need punishment while others may not need punishment.
We do not ask and maybe never will who was Mathura and who raped her? Who was the Bhanwari Devi with whose infamous ordeal we are acquainted with and why was she raped? Who were the men who raped her? But we all know that there is always a context and the dynamics surrounding the crime which are not considered by the law to be significant for the case.
The law has a way of isolating the act of rape from the context in which it occurs. It is the criminal act of inserting the penis into the vagina, mouth or anus of a woman that is rape. The law focuses on what we call the actus reus. This invisibilisation of context has made justice inaccessible to women and brought into question the very idea of rape; reducing it to being an act of lust or passion, rather than the act of assertion of socially sanctioned power.
Secondly, the law does not recognise or look at the motive for the crime, only whether it was committed with intent and not accidentally or unconsciously. But we have moved far away from considering rape as a crime of passion or lust to being a crime of identity and hatred, hence, logically, the motive becomes a constitutive element of the crime.
Once we start looking at the motive of the crime, a different picture emerges, those responsible for the systemic failures in institutional settings can be held responsible.
If the issue of violence against women is to be resolved, we must also shift our attention to the context in which a specific crime has occurred and address that as requiring investigation and accountability of those who brought the system to a stage that facilitated the crime.
The women’s movement in the country has constantly drawn attention to the institutional failures demanding laws to deal with the situation in which the crimes occurred— whether it be a police station, an isolated forest, a situation of communal conflict or a hospital— and have succeeded getting laws passed recognising the context and the relationship of dominance that was preexisting which enabled the crime.
They have changed the ground realities for themselves by addressing issues on the shop floor, by resistance and making the change they wish to see.
Mathura
In 1978, the Supreme Court gave a judgment acquitting a policeman of the rape of a 14–16-year-old tribal woman in the prescient of a police station. The rape of Mathura illustrated the fact that the courts ignored the context in which the crime occurred and concluded that the woman had consented to the sex she called rape.
A letter addressed to the Chief Justice of India by eminent jurists and academics alerted the women's movement to the context in which the rape had taken place. The Supreme Court of India had acquitted the policeman, disbelieving the sworn testimony of a tribal woman that she did not consent.
The context within which the rape took place— the uneven dynamic of power between a tribal woman and a police officer in uniform and the location, namely the police station where the rape took place— were completely ignored in coming to this conclusion.
This is indeed one of the defining characteristics of the adjudication of crime by courts: it focuses our attention on the moment of the crime and ignores everything else. Mathura’s case did lead to some very important changes in the law.
It introduced Section 114A of the Indian Evidence Act, 1872 by recognising that once the woman had given her testimony to the effect that she did not consent, in custodial situations, the presumption arises that she did not consent and the burden of proof would shift to the accused to prove that she had consent.
This was the first major structural change in the law which changed the way the law looks at rape by bringing into consideration the larger picture of the context of the rape.
Bhanwari Devi
Let us look at a different case that awakened the consciousness of the women’s movement but not yet that of the courts. Bhanwari Devi, a sathin working under the ministry of social empowerment, was appointed to campaign against child marriage in villages.
On hearing of the forthcoming marriage of a nine-month-old girl child and boy child, she intervened to try to stop the marriage. Her intervention hit at the heart of the customary practice of child marriage which was entrenched in the community to such an extent that no law has been able to prevent it from happening.
Retaliation by a powerful community took the form of gang rape of Bhanwari Devi. She was raped by a gang of men, some of whom belonged to the same caste as her and one of whom was a Brahmin.
The aftermath of the rape was as devasting as the rape itself as the rapists had the full support of the Chief Minister and their community. Remember, Bhanwari Devi survived the rape and she was thankfully alive, hence she too was a target for attack.
We saw again justifications for the rape being articulated in the public domain. She deserved it, she was being told. She was trying to stop a very important custom of the Rajput community— child marriage. She faced threats and social exclusion. Walking miles to get milk after facing a boycott, social exclusion, verbal abuse, and her children shunned at school, Bhanwari Devi persisted.
But the women’s movement never allowed her to become a victim. She was literally cradled by support groups who continue to support her to this day in her journey for justice. Bhanwari Devi broke the myth that women who are raped should be ashamed of themselves and not show their faces in the public domain.
She was out there with the support of the women’s groups, attending international conferences and being given awards for her courage persisting with the case against all odds. This was the success of the movement itself, which raised issues larger than Bhanwari.
What about reparation for Bhanwari Devi? What about monetary compensation? She was encouraged to take compensation from the State, which would otherwise be considered money for sex. Till today, when I handle cases of sexual harassment and suggest that they demand monetary compensation for the pain and mental suffering caused to them, they refuse, believing that they will be further stigmatised and told that all they ever wanted was money.
Bhanwari was encouraged to take the compensation. Today, there is official recognition of the need to pay compensations and states run victim compensation schemes through their legal aid agencies.
The judgment exposed several rape myths. Sessions judge Jagpal Singh’s ruling included lines such as “a nephew and uncle cannot rape together”; that “it is not possible in Indian culture that a man watched his wife being raped”; that “one of the accused was Brahmin while the rest are Gujjars, and this kind of caste mixing is improbable”. These remarks sparked widespread protests and an appeal in the Rajasthan High Court, which remains unresolved decades later.
Devi’s case became a turning point in India’s fight for women’s rights. Four non-government organisations petitioned the Supreme Court, arguing that she was assaulted while performing her governmental duties.
In 1997, the Vishakha guidelines were introduced, laying the foundation for India’s 2013 law against workplace sexual harassment. Though denied personal justice, Devi’s fight revolutionised protections for working women nationwide.
Bilkis Bano
The widespread pogrom that occurred in 2002 in Gujarat is too well known to recount. It has been described as a genocide against the Muslims, as a retaliation for the burning of a train at Godhra, which led to the death of several Hindu yatris on the Sabarmati Express.
The cause of the fire has never been conclusively established and never well, but several Muslims have been convicted of the crime of arson and murder. In the carnage that followed, the rape and murder of Muslims became of weapon of a near-civil war situation.
Bilkis Banu survived an attempt to murder her family, was raped and given up for dead. She survived to tell the tale. After intense legal battles, her case was transferred to Maharashtra to ensure unbiased justice. Eventually, several men were convicted of the crime of murder and of her rape.
They served their sentences in Gujarat. By sheer manipulation of the system, they secured a remission from the state of Gujarat while the appropriate government to give or not to give a remission was the state of Maharashtra.
