Citations – 1979 AIR 185, 1979 SCR (1) 810
Date of Judgement – 15/09/1978
The case in hand is about the rape of a 16-year-old girl named Mathura. Through this case analysis, I intend to highlight the concerns and issues that have not been dealt with in the original judgement given by the Supreme Court. Firstly, I’ll be posing some critical questions with the help of the analysis provided by Dr. Upendra Baxi and others in their open letter to the Chief Justice of India, which the Supreme Court judgement miserably fails to answer in its judgement. Asking these questions is essential to fully comprehend the significant issues which have not been dealt with and contemplate the path the judiciary takes to dispense its so-called textual idea of ‘justice.’ Next, I will present my arguments, which will analyze the various segments of the present case’s judgement, which are distorted and demand explanation. My analysis of the case will include aspects like ‘authority,’ ‘reliability of the victim’s testimony,’ ‘scope of criminal law,’ ‘gender discrimination based on patriarchal norms,’ difference between ‘consent and submission’ and lastly, ‘structure and agency’ followed by the conclusion.
To start with, I firmly believe that the Supreme Court has not provided any valid or consistent reasons to justify its stand about why the High Court’s reasoning lacks conviction for rape. There are many questions which remain unanswered, like why Mathura, a 14-16-year-old, was in the police station in the “dead hour of the night”; and the Supreme Court raised no concerns as to why she was asked to remain in the police station even after her statement was recorded and her relatives were asked to leave. Additionally, the fact that the lights were switched off in the police station when Mathura was inside, and the doors were shut is not considered.
According to the Supreme Court, the absence of physical marks on her body and no screaming connote sexual intercourse in the police station. However, there is not one mention in the judgement that condemns the use of the police station as a place for submission to sexual intercourse. The Supreme Court, while describing the facts of the case, acknowledges that “Tukaram was seated in a cot nearby” and that he was too intoxicated to rape Mathura. Nonetheless, the fact that Tukaram, the head constable, decided to keep mum and not take a single step in furtherance of protecting Mathura from Ganpat and him being intoxicated in the police station, is not considered material enough to be discussed and criticized in the judgement.
I share my opinion with Upendra Baxi and others in their Open letter to India’s Chief Justice of India on some points. For instance, if an inability to cry out for help and raise the alarm was equivalent to having consensual intercourse, what would be the Supreme Court’s reaction and reasoning if the victim were dumb or gagged?’ The Court stoops so low as to expect Mathura to have marks of physical injury over her body as a ‘visible proof’ of all the sexual harassment she went through. Absence of such marks is henceforth equated to absence of stiff resistance, by the Court, and a hasty conclusion is drawn that Mathura was a person of easy virtue due to her liaison with her lover, accepting the assertion made by the Sessions Judge that Mathura was “habituated to sexual intercourse.” The whole incident of rape narrated by Mathura is an impossible event. Thus, instead of questioning the accused, Mathura herself is suspected, it is her morality and virtue, which is doubted. This shows how a woman’s dignity is accorded a basis through certain pre-defined and desirable standards of conduct established by the society.
Argument I- The notion of ‘authority.’
Authority, in its simplest form, means dominance, which is coupled with ‘fear.’ Fear is something that makes a person turn into a ‘subject’ or rather a ‘victim.’ In the present case, the sense of authority exercised by the two policemen was indeed very gruesome. It was more than enough to produce fear in the mind of Mathura, such that her will or voluntariness got diminished to mere compliance. The act of calling Mathura to the police station in the “dead hour of the night” is enough to instill a sense of fear arising from an authority in the mind of the victim of such a grotesque offense of ‘rape’. Thus, a parallel can be drawn with the case of Nandini Satpathy. It was established that “According to section 160(1) of Criminal Procedure Code, a woman shall not be required to attend police investigation at any other place than her residence. The Court then opined that the very act of directing a woman to come to the police station in violation of section 160(1) CrPC might make for tension and negate voluntariness”. Here it can thus be inferred that the Indian Supreme Court puerilely expects a young girl aged 14-16 years to be fearless, have absolutely no fear of authority, and thus scream and fight two well-built, sturdy policemen when forced into having intercourse.
Argument II- The Court’s reliance on the ‘testimony of the victim.’
The whole judgement consists of combinations of some offensive words such as describing the rape as a “story,” “tissue of lies,” “habituated to sexual intercourse.” Yet, the most disturbing one – “Mathura was a person of easy virtue.” The tone adopted by Justice Koshal and his line of reasoning to conclude appear to be quite insensitive not only towards Mathura but to all young girls in general. The point of significance here is that the focus of the judge stands completely deviated, from evaluating the commission of rape to questioning the sanctity and morality of the victim herself.
Argument III- The ‘scope of criminal law’ in determining the guilt-
Indian law has failed indeed to realize the real essence of the doctrine of ‘burden of proof.’ According to this doctrine, the burden of proof is on the victim to convince the Court that the said offense has been committed to them. However, in this case, the Court failed miserably to comply with this doctrine by leading on both the accused persons. The Court labelled the 16-year-old victim as a promiscuous girl who liked engaging in sexual activities, thereby undermining the difference between sexual intercourse versus rape. While the former is a consensual activity, the latter does not involve consent. Therefore, it can be said that the Court engaged in ‘victim-blaming’ instead of determining the guilt of the accused.
Argument IV- Gender discrimination based on patriarchal norms
The laws of our country are formulated such that it is always the woman, who’s sanctity and purity are doubted. These laws are such because of them being formed at the time of extremely regressive and patriarchal times. Hence, it can be ironically seen that the presence of semen marks on Ganpat’s trousers and his sexual habits are considered of little significance by the Supreme Court. It is dreadful when one reflects on the verdict of Justice Koshal, which appears to have been influenced by a strong taboo against pre-marital sex almost as if it provides a permit to all men, including the policemen to commit rape on young and innocent girls.
Argument V- The difference between ‘consent and submission.’
It appears from the facts stated by the Supreme Court and its holding that Mathura had submitted to the rape as there was no stiff resistance. Therefore, the policemen were not found guilty of rape. Surprisingly, Justice Koshal has focused entirely on Section 375 (3) of IPC, stating that the woman passively submits only when her “consent has been obtained by putting her in fear of death or hurt.” The reasoning and the conclusion of the Court in acquitting the two appellants revolve only around this clause, and it pays no heed to the second clause of Section 375 of the IPC that deals with passive submission, where the sexual intercourse is “without consent” of the woman. The Court fails to appreciate the difference between “consent” and “submission.” The core distinction here is that consent involves submission, but the contrary is not always true.
Moreover, the absence of resistance is not equivalent to or indicative of consent. Even if Ganpat were to be charged under the third component of Section 375, the question of whether there was “consent” remains relevant and crucial. Therefore, the argument put forth by the Supreme Court that only “fear of death or hurt” is capable of vitiating consent for sexual intercourse is ‘flawed.’ Thus, it becomes crystal clear to conclude that according to the facts of this case, there was no consent from Mathura but merely a ‘submission.’
Additionally, it is somewhat problematic for the Court to expect that a 16-year-old child, who is fending for herself, by doing manual labor, instead of getting the privilege of education, is capable of understanding the concept of ‘consent.’ The wording of the judgement is disturbing when Mathura’s struggle (evidenced in the form of the nail and bite marks on both the accused) is considered a valid consent merely because she could not say no. The Supreme Court could have interpreted the word “consent” better and in a broader term while giving its verdict.
Argument VI- ‘Structure and agency’ as construed within the society –
Since the establishment, the Indian law portrays the position of a rape victim within the society as someone helpless and vulnerable. This powerful dictum is extremely flawed, vile, and repugnant. It not only degrade the status of women in the society but also shows the typical patriarchal view our lawmakers adopt in today’s times.
The ‘moral aspect’ of the case has been completely sidelined by Justice Kaushal, by condemning the constitutional rights of a woman. The whole idea of ‘structure and agency’ jumps in here. What agency does a woman exercise in such a situation? The societal structure and framework of suppressing and hiding a rape victim from others, doubting if that victim will be able to get married or not, keeping her locked at home, showing pity and sympathy towards her, all contribute towards the diminishing or rather extinct agency of women in the society. The Supreme Court pays no heed at all to the factors associated with the tender aged victim. Mathura hails from a poor socio-economic status. She lacks the knowledge of legal rights and the access to legal services in such a case, her autonomy in exercising her agency is very bleak.
Considering the several factors that are not considered in the Supreme Court judgement, I agree with the verdict of Bombay High Court because I believe that the arguments presented by Justice Koshal are insufficient and unsubstantial to acquit the two appellants. Mathura, a girl between the age of 14-16 years helplessly surrendered her body to Ganpat, who raped her. This amounts to passive submission under section 375 (2) of the IPC, which is not equivalent to consensual sex. This judgement completely degrades the moral rights of a woman. It shows how the Indian law miserably fails to sympathize with the deep agony of all such women, who, like Mathura, have been sexually harassed and raped.
While this judgement was one of the many unfortunate and disturbing precedents, it is essential to realize that reasoning such as the one adopted in this case results from severe flaws in the understanding the root cause behind the commission of crimes such as rape or sexual harassment. Sexual harassment of women results from the ‘sexual objectification’ of women. Objectification reduces women to their biology as if there is nothing to a woman other than her sex (or her body). Sexual objectification can be attributed to the most challenging and ancient social structure, i.e., patriarchy. It would be an understatement to assume that only men are responsible for patriarchy. Women, too, partake in it by abiding gender-roles and regressive notions such as ‘purity’ and ‘virginity.’ Thus, the need of the hour is to detect and destroy patriarchy from our mindsets. In doing so, we would be doing a service to ourselves and our society and our Criminal Justice system that needs to approach Gender-based crimes through the lens of Reformative justice.
Kanak Mishra (Author) is a Penultimate Year student at Jindal Global Law School, Sonipat.
Upendra Baxi et al., An Open Letter to the Chief Justice of India (Jun. 28, 2020), https://pldindia.org/wp-content/uploads/2013/03/Open-Letter-to-CJI-in-the-Mathura-Rape-Case.pdf.
Nandini Satpathy v. P.L. Dani and Anr., 2 SCC 424 (1978).
Nandini Satpathy v. P.L. Dani and Anr., 2 SCC 424 (1978).
IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.