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  • Writer's pictureIRALR


Source : Greg Stevens

This article has been authored by Swarnalatha R, is a practicing advocate at the High Court of Madras.

“Gambling they went, invited by Duryodhana,

Lost all they had losing even themselves

I, unspared, was dragged into the court of men.

Which were these bounds of Dharma

That tied my husbands?

What kind of husbands [are] these,

That are tied by the Dharma of lies?

I asked, “What of me?”

Bhishma said, “Power is Truth, Dharma darkness”.

Robed limitlessly, I was saved by God.

The Kauravas stopped, exhausted, still not understanding.

Yes, Krishna gave me the cloth, but where was the Gita’s truth?

Was Arjuna not already in the need of that counsel then? [i]

The eminent jurist Fali S. Nariman in his book, 'The State of Nation’ quotes these lines from 'I Draupadi' penned by Karthikeya Sarabai as a reflection after watching Mahabharata, a play directed by Peter Brook. These words of Draupadi or the fact that Sita had to undergo Agnipariksha to prove her chastity symbolize the oppression and inequality women had to bear in the past. Women were treated as mere chattels of men and their objectification encouraged men to commit heinous crimes and atrocities against women, even of the present day continue to suffer.

Weaker Sex - angst and Apprehension

Of all the crimes, nothing is so brutal, so devastating and so barbaric than the alarming incidents of atrocities against the better half of humanity. One in three women experience some form of gender- based violence in their lifetime. According to recently released official government crime data, a rape is reported every 15 minutes in India. There were 3,78,277 cases of crimes against women in 2018, Overall crime rate dropped from 388.6 in 2017 to 383.5 in 2018, rate of crimes against women rose from 57.9 to 58.8, and crime rate against children from 28.9 to 31.8.[ii]

Ponder as to why there is such an alarming increase in the number of crimes against women. Frailty – Thy name is woman? The so claimed inherent weakness of women. Is it because women belong to the weaker sex? Are women so vulnerable and prone to violence against their physical self because they are physically weak? Are they the ones who invite even highly disciplined male members to commit such brutal crimes against them or do they put themselves into such acts of savagery? Or is it because of the need for fear of more severe punishments?

Fear of Accusation and Their Muted Suffering

Whenever crimes against women are reported, they become the hot topic for discussion everywhere right from office dining halls to social media platforms. People speak, discuss with others, make their opinions, some blame the perpetrators yet others accuse the victims. But who will bring their voices to the forefront? Even if they themselves voice out the sufferings they have undergone, will they be heard without shaming them? Is justice accessible to these silent sufferers? Will the mills of law ever grind and pulverize these rapists into pieces?

Even the Delhi gang rape incident that shook the national conscience had to undergo the cyclic syndrome of delay and pendency for seven long years after the horrific tragedy to finally close all the legal routes and execute the death warrant of the convicts. It is this inordinate delay in disposal of cases that makes justice a distant dream for the victims.

For every reported rape case, dozens of others go unreported because of fear and shame. Rape is the only crime in India for which the victim is blamed. Priyanka Dubey, in her book, ‘No Nation for Women – Reporting on Rape from India, the World’s Largest Democracy' writes, “Everyone - right from the family, friends, to the police - views the victim with doubt. Her testimony is dismissed…[with] random questions on her character.” The fear of humiliation, recriminations and insinuations made against the rape victim when she knocks the doors of justice discourages even the reporting of the crime to the police.

Bigoted Judiciary - Mirrors of Chauvinism

It cannot be denied that the sexist remarks made by the Courts on victims of rape unduly discredit the victim's experience and turmoil. The recent remarks of a Karnataka High Court Judge which after heavy criticism from civil society and legal fraternity alike, were expunged from the order of the Court by the Judge himself.

Character assassinations and gender stereotyping in rape cases can be traced back to 1979 when the Supreme Court overturned the conviction of two policemen in Mathura rape case[iii] by equating passive submission in fear of injury to consensual sexual intercourse. The Supreme Court further agreed with the Sessions Judge that Mathura was “habitual to sex” as her body showed no marks of protest and she didn’t raise an alarm. The perversity of logic and patriarchal overtone in the judgment reducing the alleged rape to a peaceful sexual affair is nothing but argumentum ad hominem.

The aftermath of Mathura judgment saw the 1983 Criminal Law Amendment which introduced a new provision in the Indian Evidence Act, 1872. Section 114 A[iv] of the said Act provides for presumption as to absence of consent in prosecution of certain rape cases. Custodial rape was also covered under section 376 Indian Penal Code with a punishment of imprisonment not less than seven years and the burden of proof was shifted to the accused once the sexual intercourse had been established. Non-disclosure of victim’s identity and in-camera trials in rape cases were mandated by the amendment.

Further, under Section 155(4) of the Indian Evidence Act of 1872, it was essentially the rape victims who were put on trial and the accused were often allowed to go scot-free if they could prove that "the victim was of generally immoral character". It’s pertinent to recollect the words of Louise O'Neil[v] which reflect the pathos of the rape victims. – “They are all innocent until proven guilty. But not me. I am a liar until I am proven honest.”

Easy Virtues - Not an Entry Ticket

In 1980, the Law Commission suggested that the archaic law be amended. The Supreme Court in it’s landmark judgment State of Maharashtra and another v. Madhukar Narayan Mardikar[vi]held that even a woman of loose moral character deserves protection of the law and her evidence cannot be thrown overboard just because she is a “woman of easy virtue”. The Court in para 23 held, Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference like the victim being a woman of ‘loose moral character’ is permissible to be drawn from that circumstance alone.” A woman of “easy virtue” also could not be raped by a person for that reason.

In 2000, the Law Commission recommended the deletion of section 155(4) of the Evidence Act, saying that it could destroy a victim’s reputation. Even decades after, in the case of Raja v. State of Karnataka, the Supreme Court acquitted the accused considering the victim to be a prostitute and the Judges stereotypically found it to be unusual if the victim didn’t rush back home in a devastating state after a sexual assault. In a 12-page order littered with worst statements of victim blaming, the Punjab & Haryana High Court awarded bail to the students accused of criminal intimidation and gang rape on a fellow student. The Court further added that her allegations regarding her being threatened into submission and blackmail lend sufficient diabolism to the offence, but a careful examination of her statement again offers an alternate conclusion of misadventure stemming from a promiscuous attitude and a voyeuristic mind".[vii]

Only "Yes" means "Yes"

A study conducted by the NLU, Delhi has revealed that of 50 judgments of Supreme Court in rape cases, it was found that in 52.3 percent cases involving sexually active victims, judges have made sexist remarks about women. Yet another judgment reflecting the society steeped in patriarchy came from the Delhi High Court in the case of Mahmood Farooqui v. NCT[viii] where Farooqui was accused of raping a research student from America in spite of expressing her disinterest. The Court opined that the unwillingness of the prosecutrix was only in her own mind and heart but she communicated something different to the appellant. It is not unknown that during sexual acts, one of the parties may be a little less willing or it can be said unwilling but when there is an assumed consent, it matters not if one of the partners to the act is a bit hesitant. Such feeble hesitation cannot be understood as a positive negation of advances by the other partner.” The Supreme Court also affirmed the decision holding that a feeble no by the victim to be a yes.

When it comes to consent where rape is alleged, the question must be whether there was an enthusiastic, unequivocal “Yes” from the victim instead of looking for a firm “No”. The book ' Yes means yes! Visions of Female sexual power and a world without rape by Jaclyn Friedman also highlights the aspect of viewing women as collaborators and not as conquests so that a rape-free world can be achieved.

A Flicker of Hope

The stereotypical images of rape victims the Judges perceive, provoke them to excoriate and pass unkind remarks that undermine the gravity of the incident. Yet there are judgments which have broken gender roles and rape myths. One such verdict of the Supreme Court comprising of two women Judges including Justice. B. was Delhi v. Pankaj Chaudhary & others[ix] which held that absence of external injuries does not tantamount to consent nor does it discredit the version of the prosecutrix.

Taking a cue from the path-breaking judgment of the Supreme Court two decades ago in State of Maharashtra v. Madhukar Narayan Mardikar[x], the Supreme Court declared that even if allegations of the prosecutrix is of immoral character are taken to be correct, it doesn’t give any right to the accused to rape her.

Blame the victim or shame the Rapist?

Some people opine that if and only if the laws regarding sexual offences against women are made more stringent such that the criminals cannot go scot-free, such men will refrain from committing such heinous crimes even in dreams. Is it not true that laws are like cobwebs which may catch small flies but let wasps and hornets break through? There can be laws against rapists but they are made only to be flouted. Some of the greatest offenders are not even cornered.

People never stop pandering to their baser instincts. People must evolve for themselves. Not better laws, only better people can transform the society. The deep-rooted conservativeness of the Indian society intimidates and makes the rape survivors to close themselves behind the doors instead of coming forward to put the rapists behind bars. The hostility and trauma they must have to face even to Lodge an FIR, unsympathetic medical and forensic tests they must undergo to prove the incident, lack for psychological support for the victims, grueling and botched up investigations, intimidation to witnesses and lengthy Court trails that fail the prosecution itself provoke the victims even to put an end to their own lives.

Can Marriage absolve the Rapist?

More than all these, the misogynistic and sexist underpinnings of the Indian society and even victim’s own family compel them to opt for out of Court settlements and get her married to the accused itself to escape from the stigma of rape. Even recently, the Kerala Church priest who was convicted by the POSCO Court for raping and impregnating a girl when was hardly sixteen years old offered to renounce his priesthood and marry the rape victim.[xi]

Vehemently condemning the “blame the victim and marry the rapist” practices followed by the Khap-Panchayats in olden days, the Supreme Court in State of Madhya Pradesh v. Madanlal[xii] urged the Courts to remain absolutely away from such marriage offers by the rapists. The Court also opined that such a soft approach like compromise or settlement would be against her dignity and honor. Any kind of liberal approach or though of mediation in this regard is thoroughly and completely sans legal permissibility.

Redefine Masculinity with Feminist Principles.

Gender stereotyping and violent ideals that children encounter at home, school and the media narrow down their thinking and perception and they eventually grow up into persons with monstrous sexist views. Restrictive definitions of gender and sexuality limit their ability to express themselves. I would like to leave a few questions for you to ponder about. Think.

Why is a little daughter taught the difference between good touch and bad touch when it is the boys who must be taught good morals and how his conduct must be towards women? Why is a woman made to envelope herself in a burqa to protect her body from the evil eyes of cruel men when it is the men who must know to control their vehement sexual desires?

Why is a girl forced to come back home before dusk in order to be safe when it is the men who must make her feel protected even at midnight? Why is a girl under the surveillance of her own parents all through the day when it is the watch history of boys that must be checked for any dirty, immoral, scandalous porn videos? Why are the victims of gender-based violence shamed when it is those criminals who are to be blamed? Why are the poor victims shunned by the society when it is those sex predators who are to be put behind bars?

End Impunity

Rapidly increasing rate of violence against women is nothing but the visible sign of pervasive patriarchy, male chauvinism and violent extremism which in turn poses a big challenge for creating an inclusive society for women. Crimes against women – Will this ever end? It is very disheartening for me as a member of the women community when such highly inhumane crimes against women are reported. We have broken the doors that remained closed for centuries to liberate ourselves and walk freely in the society. Let us enjoy our journey towards excellence. Let us go further safely. Let us go ahead without fear. Don’t scare us away and make us lock ourselves up behind those doors once again. Please don’t push women back to the place where they were once upon a time once more.

It’s high time that people change their outlook, change their attitude towards women and the offences against them. Is it right if even the victim’s own family chooses to remain silent in fear of being judged by the society and puts fetters on her courage?

Celebrity actor Angelina Jolie rightly says, “We must send a message across the world that there is no disgrace in being a survivor of sexual violence- the shame is on the aggressor.” A victim of sexual violence does not deserve your judgment or need your sympathy. All she needs is your support. So, let us all stand by the side of a victim without censure and amplify her cry for justice. Let us all give the victim's charred body and dead soul the strength to come forward to name and shame the sex predators. Let us all join hands to curb these evils from our society and create a safe environment for women and children.

[i] Poem Source: Kartikeya Sarabhai, published in Mainstream, Vol XXVII, No.34 dated May 20, 1989, edited by Nikhil Chakravarthy. [ii] [iii] Tukaram & another v. State of Maharashtra, (1979)2 SCC 143 [iv] Ins. by Act 13 of 2013, s. 26. (w.e.f. 3-2-2013). [v] Louise O'Niel is a freelance journalist for a variety of Irish national newspapers and magazines, covering feminist issues, fashion and pop culture. [vi] AIR 1991 SC 207 [vii] See Vikas Garg v. State of Haryana, (2018) 1 Cri CC 176 [viii] 2018 Cri LJ 3457 [ix] 2018 SCC Online SC 2256 [x] AIR 1991 SC 207 [xi] [xii] (2015) 7 SCC 681

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