Amol Verma, a 4th-year student of CNLU, Patna discusses about the manifestation of patriarchal notion by Indian judiciary and the constitutional rights of women in the country.

Introduction

In the Indian Jurisprudence, the victims of sexual assault are treated worse than the offenders, thereby grossly undermining the dignity of the victims. Patriarchal notions have become deep-rooted in our society to the extent that the judiciary is also not unaffected by it. The victims of sexual assault have to fulfill a prescriptive list of conditions for their testimony to be credible in the eyes of the law. Even in cases where the victims’ complaint against the perpetrators results in a conviction, we find that the offence of rape is typified as one that robs the women of her much-valued chastity and honour. All of this results in the utter disregard of women’s bodily integrity and autonomy. Judicial precedents have virtually created a requirement of self-defense, which is unique to the crime of rape. This is despite the fact that India has through legislation abandoned the requirement of resistance and adopted the requirement of consent.[1] Prior sexual history tends to vitiate the complainant’s credibility. Rape happens to be the only crime where the victim’s actions during the crime and her past behaviour are considered relevant to determine the outcome of the trial.[2] 

The Recent Archaic Order of The Karnataka High Court and An ‘Ideal Rape Victim’

In a recent order[3], a single judge of the Karnataka High Court considered a bail application made by a rape accused. While granting the anticipatory bail, the judge pointed out that the allegations made by the complainant were difficult to believe and that the complainant did not object to having a drink with the accused and even let him stay till the next morning. The Judge further observed that the explanation offered by the complainant that she was tired and fell asleep was unbecoming of an Indian woman. This patriarchal observation by the judge was followed by another remark as he pointed out that this is not how our Indian women behave when they are ravished. While these observations have since been expunged, it speaks volumes of how patriarchal notions have become engrained in our system.

Manifestation of Patriarchal Judgments and Notions By the Judiciary

There have been important legislative changes in the last few years, most notably after the Nirbhaya Gang Rape Case.[4] After the case of State of Punjab v. Ram Singh[5], prior sexual history has been rendered irrelevant by the repeal of Section 155(4) of the Indian Evidence Act, 1872.[6] Furthermore, after 2013, the absence of physical resistance cannot be regarded as consent. However, changes in statutory provisions appear not to have altered the way evidence is appreciated in rape cases. In Raja v. State of Karnataka[7], despite the fact that the victim was kidnapped and gang-raped, the Apex Court remarked that the victim’s behaviour was unlike a rape victim and added that she was accustomed to sexual intercourse. Similarly, in Mahmood Farooqui v. State (Govt of NCT of Delhi)[8], the Delhi High Court observed that in certain instances it is difficult to ascertain that there was no consent when there is little or no resistance by the victim and a feeble ‘no’ by the victim may imply a ‘yes’ therefore not amounting to the offence of rape.  The Punjab and Haryana High Court in Vikas Garg & Ors. v. State of Haryana[9], observed that the rape victim had social relations with the perpetrators, and basis this arrived at outrageous conclusions regarding the consent, thereby belittling the integrity of the women. The court added that young minds with a bright future should not be allowed to rot in jail. The court considers woman’s chastity and honour as her most prized possession. It views a physically and mentally devastated victim’s testimony as more credible as was observed by the Supreme Court in Kamalanantha & Ors. v. State of Tamil Nadu.[10] 

All of the above egregious observations are despite the proviso to section 375[11] which states that: 

“A woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.”

An ideal rape victim is supposed to physically resist the offence of rape; this aggravates the chances of harmful consequences and could possibly lead to her death. Ultimate insults and humiliations are heaped on the victim, which converts the accuser into the accused and is a fertile ground for making the accused rapist the accuser. 

It wouldn’t be an exaggeration to say that the above judgments grossly ignore the statutory mandates and subvert women’s constitutional rights. The law, as it is administered by the courts, grossly undermines women’s fundamental rights guaranteed under Article 14 and Article 21 of the Constitution of India. A right to the freedom to live her life as she chooses is infringed upon by this subversion of the judicial process and disregard of the legislative provisions.  

Conclusion and Way Forward

The JS Verma Committee dealt, in detail, with the constitutional rights of women in Chapter I of its report.[12] It highlighted that women are also guaranteed equal protection of the laws; therefore, offences committed against women must be tried in an effective manner so as to ensure the successful conviction of such offences. To achieve the same, the state must set up a dynamic review mechanism. Pasayat J. in State of Himachal Pradesh v. Shree Kant Shekari[13], observed with specific reference to Article 21 that rape is a crime against basic human rights, and is violative of the victim’s right to life.[14] Therefore, the courts are expected to deal with sexual crimes against women with the utmost severity. The 2018 Amendments[15] increased the jail terms for the offence of rape by inserting new provisions. However, what is the need of the hour are more proactive legislative changes that are targeted towards mitigating the imbalance of credibility that women tend to face, which are formulated taking into account the patriarchal double standards that women live with. It is important to understand that these steps are bound to be ineffectual if the outlook of the judiciary does not change. A socially aware and sensitized judge is always a better statutory armour in cases of crimes against women.


Amol Verma is a fourth year student from Chanakya National Law University, Patna.


[1]Indian Penal Code 1860 Proviso § 375.

[2]Mrinal Satish, Virginity and Rape Sentencing, The Times of India (Jul. 15, 2020, 8:55 PM), https://nludelhi.ac.in/UploadedImages/7c23fbec-6b60-4587-a0b3-2c999bdd996a.pdf.

[3]Rakesh v. State of Karnataka, Criminal Petition No.2427 OF 2020.

[4]Mukesh & Anr. v. State of NCT for Delhi & Ors.,  (2017) 6 SCC 1.

[5]State of Punjab & Ors. v. Ram Singh, AIR 1992 SC 2188.

[6]The Indian Evidence Act 1872 § 155(4).

[7]Raja & Ors v. State of Karnataka, AIR 2016 SC 4930.

[8]Mahmood Farooqui v State (Govt. of NCT of Delhi), 243 (2017) DLT 310.

[9]Vikas Garg & Ors. v. State of Haryana, (2018) 1 CriCC 176.

[10]Kamalanantha & Ors. v. State of Tamil Nadu, (2005) 5 SCC 194.

[11]Indian Penal Code 1860 § 375.

[12]JS Verma Committee, Report of the Committee on Amendments to Criminal Law (Jan.23, 2020), https://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.pdf.

[13]State of Himachal Pradesh v. Shree Kant Shekari, AIR 2004 SC 4404.

 [14]INDIAN CONST. art 14.

[15]The Criminal Law (Amendment) Act, 2018, No. 22, Acts of Parliament, 2018 (India).

IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.

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