By Bhavana Sharma, Department of Laws, H.P.U., Shimla
Editor’s Note:Rape is one of the most heinous crimes and is often described as the “beginning of a nightmare” for the victim. In this paper, efforts have been made to identify how judiciary being the third pillar of the Constitution has played a vital role in finding the proper solution in rape cases. Sometimes through wide interpretations of the various provisions of legislation and sometimes by laying down landmark judgments where there were no specific laws.
“We have never seen such brutality all over lives” was the statement of the doctors in Nirbhaya’s case who was brutally gang raped which led to multiple organ failure and ultimately to her untimely death. The death of this 23 year old physiotherapy student raised the question, “Is a woman’s dignity and life worth anything in this country?” The answer to this is in negative. Because first of all, our laws are lax and secondly there is lack of intention to implement these laws properly. Only judiciary has taken some stringent measures from time to time to lay down the landmark judgments.
Verma Committee appointed to find measures for prevention and prosecution of sexual assault on women observed as: The need of the hour is to ensure speedy justice. The abysmally low conviction rates for crimes against women are worrisome. Apart from implementing police reforms, we also need to ensure that there are adequate number of judges to hear the rape cases and other cases involving crime against women. Thus, the need is to augment the number of judges to make sure that justice is delivered in a prompt manner. We are in dire need of fast track courts to ensure speedy justice in rape and cases of sexual harassment and domestic violence. We also need a time-bound action plan by states to deal with pending cases of crimes against women. It is heartening to note that the constitutional courts in India have developed a fine feminine jurisprudence but unfortunately, the principles and rules developed by the courts for the protection of women against sexual assault have not been implemented in true letter and spirit.[i]
Rape is a crime, which has a devastating effect on the survivors; it has been described as a “beginning of a nightmare”. The aftershocks include depression, fear, guilt-complex, suicidal-action, diminished sexual interest. etc., “one becomes afraid of’……..writes a victim, “half the human race”. Referring to the pitiable condition of women in society Mr. Justice S. Ahmad observed that “unfortunately, a woman in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the Constitution “enjoy, equal status”. “Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honorable and peaceful life”. Rape is a stigma which exists in the society from a long time. The dictionary meaning of word rape is “the ravishing or violation of a woman.” The rape victim i.e. a woman as woman cannot commit rape due to biological reasons. She is traumatized after the event; it is very difficult for a woman to come out of this trauma. Rape in India is a cognizable offence. There are many provisions in various Acts. The word rape is legally defined u/s 375 of Indian Penal Code, 1860. It defines the rape and also prescribes its punishment. Whenever a man penetrates or does sexual intercourse with a woman without her consent or will it amounts to rape. Penetration here means that only a slightest of the touch of penis to vagina amounts to rape, unruptured hymen of woman does not prove that rape was not committed. There are exceptions to it also i.e. when a man does sexual intercourse with his wife who is above 15 years of age. The rape law under Indian Penal Code had gone through a lot of amendments. In 1983, amendment was made and S. 376(2) i.e. Custodial rape, S. 376(A) i.e. marital rape & S. 376(B to D) i.e. Sexual Intercourse not amounting to rape were added.[ii]
Role of judiciary:
In our country Judiciary is known as the independent wing of government. This independent Judiciary has two roles: 1) the traditional role i.e. to interpret the laws, and another is 2) Judicial activism i.e. to go beyond the statute and to exercise the discretionary power to provide justice. Our Indian judiciary can be regarded as a creative judiciary. Credibility of judicial process ultimately depends on the manner of doing administration of justice. Justice K. Subba Rao explains the function of the judiciary as thus:
- It is balancing wheel of the federation;
- It keeps equilibrium between fundamental rights and social justice; it forms all forms of authorities within the bounds;
- It controls the Administrative Tribunals.[iii]
Judiciary can promote social justice through its judgments. Another important role of judiciary is to make precedent for the public interest or welfare of the society. Law is powerless and requires a strong agency to maintain its existence. The level of implementation and the capability of the executor determine the fate of law. During the recent past, the term ‘judicial activism’ has assumed immense significance. It may be define as dynamic process of judicial outlook in a changing society.
The Supreme Court has expressed strong disapproval of courts casting a stigma on the victim’s character, but stigmatization continues, leading to acquittals. Setting aside one acquittal by a Ludhiana court that labeled the victim with ‘loose character’ while interpreting her consent to sex, the Supreme Court in a 1996 judgment said, “The trial court interpreted that the victim was habituated to sexual intercourse just because the speculum the doctor used entered her vagina easily and hence she was of loose character. These observations lack sobriety expected of a judge. No stigma should be cast against a victim of sex crime who is on trial”.[iv]
Another problem with rape trials is the interpretation of victim’s consent by courts. The current law and the amended version consider non-consensual penetration for sexual purpose as sexual assault. But determination of consent is hampering justice. “Courts often judge women’s conduct while interpreting consent. In one case, the court let off the accused on grounds that the raped minor’s public hair had been shaved off and so the victim, being ‘such a loose girl’, would have consented to intercourse”.[v] The core of the offence of sexual assault remains sexual intercourse without consent. The term consent has itself been subjected to numerous interpretations. Most infamously in the case of Tuka Ram v. State of Maharasthra[vi] the Supreme Court observed that, ‘no marks of injury were found on the person of the girl after the incident and their absence goes a long way to indicate that the alleged intercourse was a peaceful affair, and that the story of a stiff resistance having been put up by the girl is all false.’ Though Tuka Ram has not been expressly overruled, the Court in other cases has not equated the presence of injury marks to the proof of consent.[vii]
In Mohd.Habib v. State[viii] , the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis- which the High Court presumed was a indication of no resistance. The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered by the High Court. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Court’s judgment.
Apart from a non existent monitoring system for rape cases in the judiciary, which has caused acquittals of the rapists and molesters in over 80 per cent of cases, governments of different states have damaged the cause of justice for women by awarding cash compensations. As usual, the intend behind these schemes was good, to help the victim get legal aid and rehabilitate, but the manner of implementation distorted the intent. Not only khaps, even courts ordered for compensation to be paid under provisions contained in the statutes. Courts also ordered the rapists to marry the victim. Several state governments found it convenient to pay sums depending upon the extent of public outrage and media exposure. Even the Ministry of Women and Child Welfare launched a country-wide scheme and offered to reimburse the state governments the cost they may incur in implementation of the scheme for paying compensation to the rape victim.[ix]
Judges are applying the discretionary power to provide better justice to women in the new context of the Socio-Economic conditions. Judiciary has played an active role in enforcing and strengthening goals towards protection of rights of the women of the land. The courts in India have tried to interpret laws in consonance with the international treaties and conventions. Some of the major cases are enumerated below[x]:
From 1860 to 2002, the colonial law based on the moral history of a woman remained in application while looking at a rape victim, which meant that a woman’s sexual history would have a say on the writing of the verdict. Despite deletion of this clause, unfortunately, not much has changed in the courtrooms. Even after the much talked about Mathura case[xi], which led to the amendment of Evidence Act in 1983, (114-A), which allowed the woman’s word to be trusted for her non-consent; there has been no monitoring of judgments, if the reformed law is followed to the word. Mathure was a sixteen year old tribal girl, who was allegedly raped by two policemen on the compound of Desai Ganj Police Station in Chandrapur, Maharashtra, while her relatives sat outside to file a police report against a theft. Both the High Court and later Supreme Court acquitted the policemen on the ground that Mathura was habitual of sexual activities and did not raise alarm.[xii]
It was only in post 1983, SC rulings clarified, “Even if a rape victim has been promiscuous in the past, she has the right to refuse to submit herself for a sexual intercourse to anyone and everyone because she is not an object”.[xiii] The first amendment to criminal law came in 1983, when the Evidence Act was changed to state that if a rape victim says she did not consent to sexual intercourse, the courts will presume so. ‘Custodial Rape’ was also introduced in the IPC and rape victims were given the right to in camera trials.[xiv]
In 1992, Vishakha Judgement, came about after the case received unprecedented media attention and for the first time the Supreme Court defined ‘Sexual harassment at work place’.[xv] And the Apex Court laid down landmark guidelines.
In State of Punjab v. Gurmit Singh[xvi], the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character.
The Supreme Court has in the case of State of Maharashtra v. Madhukar N. Mardikar[xvii], held that “the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard.”
In B. Gautam v. Shubra Chakraborthy[xviii] it was held that Rs. 1000 per month should be given to rape victim as an interim compensation.
In Chairman, Railway Board v. Chandrima Das[xix], in which a Bangladesh woman was raped by the railway security men, the Supreme Court observed: “Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would be avoidable under public law. It was more so, when it was not a mere violation of any ordinary right, but the violation of fundamental rights was involved- as the petitioner was a victim of rape, which a violation of fundamental right of every person guaranteed under Article.21 of the Constitution.” The Supreme Court also held that the relief can be granted to the victim for two reasons- firstly, on the ground of domestic jurisprudence based on the Constitutional provisions; and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948 which has international recognition as the ‘Moral Code of Conduct’- adopted by the General Assembly of the United Nation.
Suo Motto v. State of Rajasthan[xx] popularly known as German Lady rape case. It is a landmark judgment laying down principles and guidelines for the protection of dignity of the women. Hon’ble Mr. Justice N.N. Mathur, who wrote the judgment, took Suo Motto cognizance of a rape case of a foreign tourist in Rajasthan in May 2005 which had hit the headlines of State and national newspapers. In this case, court laid down certain highly relevant guidelines for criminal investigation and trial of offences against women in rape cases. The court opined:
“In order to combat the increasing crime against women and to ensure protection and preservation of their human rights – the criminal justice system needs to be addressed from the point of view of systemic victim support service. There is need to promote proactive role of police as well as trial courts”.
Birju Ram v. State of Rajasthan[xxi] relating to abduction and rape, the same court headed by Hon’ble Justice Mathur, emphasized on prevention of crime more than prosecutory culture of the administration. The court directed the State to evolve mechanism to check unwarranted activities of people exploiting caste, creed and cultural sensitivities of the people and creating crisis situations in the society where women and children suffer the most. The court further directed the government to take stern action against persons inside and outside the administration who attempt to patronize and protect the accused or in any manner interfere with the natural flow of due course of justice.[xxii]
In State Of Punjab v. Gurmit Singh & Ors[xxiii], “The expression that the inquiry into and trial of rape “shall be conducted in camera” as occurring in sub- section (2) of Section 327 Cr. P.C. is not only significant but very important. It casts a duty on the Court to conduct the trial of rape cases etc. invariably “in camera”. The Courts are obliged to act in furtherance of the intention expressed by the Legislature and not to ignore its mandate and must invariably take recourse to the provisions of Section 327 (2) and (3) Cr. P.C. and hold the trial of rape cases in camera.”
Additionally it would be essential to enforce the guidelines imposed in Sakshi v. Union Of India (UOI) And Ors.[xxiv] “In holding trial of child sex abuse or rape:
(i) a screen or some such arrangements may be made where the victim or witnesses (who may be equally vulnerable like the victim) do not see the body or face of the accused;
(ii) the questions put in cross-examination on behalf of the accused, in so far as they relate directly to the incident should be given in writing to the Presiding Officer of the Court who may put them to the victim or witnesses in a language which is clear and is not embarrassing;
(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.”
The apex court has directed trial courts to effectively control the recording of evidence in rape trials and not let defence counsels intimidate the victim with offensive questions. “A murderer destroys the physical body of a victim but a rapist degrades her very soul,” former CJI A.S. Anand said in one judgment.[xxv]
It is clear from the above guidelines that the judiciary has from time to time laid down the landmark guidelines which has not been followed properly in most of the cases. Some of the such landmark judgments are:
The apex court made recommendations in Delhi Domestic Working Women’s Form v. UOI and Ors.[xxvi] and outlined the broad parameters to assist the victim. If these guidelines were followed, conviction rates would have gone up. The guidelines are:
- The complainant of sexual assault cases should be provided with legal representation.
- Legal assistance will have to be provided at the police station.
- The police should be under a duty to inform the victim of her right.
- A list of advocates willing to act in such cases should be kept at the police station for victims who do not have a particular lawyer in mind or whose own lawyer was unavailable.
- The advocate shall be appointed by the court upon application by police at the earliest convenient moment.
- In all trials anonymity of the victims must be maintained, as a necessity.
- To set up Criminal Injuries compensation Board.
- Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place.
The Supreme Court reaaserted these parameters in Bodhisattwa Gautam v. Miss Subra Chakraborty[xxvii], case but the enforcing agencies turned a deaf ear to the guidelines of the apex court.[xxviii] Again the guidelines laid down in Vishakha’s case[xxix] in 1997 has not been followed fully till this date.
On the raging clamour for new laws and death penalty for rapists, Justice Anand (retd) says, “Socially sensitized judges are better statutory armours than long clauses of penal provisions containing complex exceptions. While the larger debate on capital punishment would continue, the courts can impose imprisonment for life as the sentence for heinous crimes like gang rape and clarify the expression shall mean imprisonment for the rest of the life”.[xxx]
In his landmark January 11, 1994, judgment upholding death penal for security guard Dhananjay Chatterjee[xxxi], who raped and murdered a school girl in a Kolkata apartment in 1990, Justice Anand had ruled, “Punishment must depend upon the atrocity of the crime committed, the conduct of the criminal and the defenseless state of the victim”.[xxxii] The history of rape law shows changes have followed public outcries.
Police and judicial accountability are emerging as the dominant demands of the civil and legal communities petitioning the Justice J.S.Verma committee appointed by the government to review anti-rape laws after the Delhi gang-rape case of December, 2012. For the first time, demands are being raised for community monitoring of police probes into such offences.[xxxiii]
How successive governments have overlooked even the existence of crimes against women is made evident by the fact that National Crime Record Bureau (NCRB)- the statistical wing of Indian Police, had started collecting data on rape cases only since 1971, while other cognizable crimes have been chronicled since 1953. In the very first year, in 1971, there were 2043 reported cases of rape, the NCRB report said. These numbers jumped to 24,206 cases in 2011, an incredible increase of 873% from 1971. The NCRB has also concluded that only one in 69 rape cases get reported and only 20 percent of the reported cases result in some kind of conviction.[xxxiv]
While the rise of 873% was taking place in the rate of the crime, and conviction rates remained abysmally low, only two major legal reforms took place for a large number of women who were seeking justice against rising number of cases that involved violation of their dignity. Unfortunately, for both these changes to take place, two women had to undergo the same fate as the 23-year-old had to, for her brutal rape on the night of 16 December, 2012, in the national capital, which has once again triggered a nation wide demand for faster legal processes and stringent laws to deal with sexual crimes against women.[xxxv]
No wonder, the landmark double life imprisonment awarded to Nishan Singh by District and Sessions Judge Archana Puri specially mentions the role of society. Perusal of the 119-page judgment in the September 24 case and the 58-page judgment in the June 25 incident makes it clear that it was a judgment for the people, of the people and by the people.
“The court must hear the loud cry for justice by society in cases of heinous crime of rape and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court,” the judge said.[xxxvi]
She further ruled that in this case, family affluence and youthful excitement were the factors that led to the crime which traumatized the young girl, who shall be haunted by the memory. Coming down heavily on the increasing cases of rape and crime in the country, the judge noted: “Of late, crime against women in general and rape in particular is on the increase. A rapist not only violates the victim’s privacy and personal integrity, but also inevitably causes serious traumatizing nailing of the victim for no fault of her. Rape is not merely a physical assault, but it is often destructive of the whole personality of the victim. A murder destroys the body, but a rapist degrades the very soul of the helpless female.”[xxxvii]
Thus, it is observed that Judiciary being the third pillar of the Constitution has played a vital role in finding the proper solution in rape cases. Sometimes through wide interpretation of provisions of various legislation and Constitution and sometimes by laying down landmark judgments where there are no specific laws, the judiciary has tried to strike a balance and equilibrium in the society. The judiciary has tried to fulfill the gap between fast changing society and rigid laws (because of the long and time taking procedure of enactments of laws by legislature, its not easy to amend these laws with the fast changing society). Nirbhaya’s case has once again raised the question of inadequacy and lack of proper implementation of the laws, however, Anti-rape Bill- Criminal Law (Amendment) Bill, 2013 has been passed. The laws relating to rape victim’s has been enacted after much public cry or through judicial intervention only. This Amendment Bill also came after loosing Nirbhaya and mass protests. It has rightly been observed by the judge in Nishan Singh’s case that Court can only lay down the guidelines but important role has to be played by the society in its implementation.
Edited by Kanchi Kaushik
2 Report relating to prevention and prosecution of sexual assault on women submitted before Hon’ble Mr. Justice J.S. Verma Commission Judicial Reforms.
3 Akshay Goel, http://www.legalindia.in/rape-laws-in-india.
4 Subhashree Mukherjee, Judicial Activism in the Area of Women Empowerment, http://en.wikipedia.org/wiki/Judicial_activism, published on june 10, 2012.
5Aditi Tondon, Cry for Freedom, The Tribune, 30 December, 2012, p.14.
7 AIR 1979 SC 185.
8 Rao Harnarain Singh v. The State, AIR 1958 Punj. 123
9 1989 CriLJ 137.
10 Vandna Shukla, Rape of Collective Conscience, The Tribune, December 25, 2012, p.9.
11 Supranote 4.
12 Tuka Ram v. State of Maharashtra, AIR 1979 SC 185.
13 Supranote 10.
14 Supranote 5.
16 Supranote 10.
17 1996 AIR 1393.
18 AIR 1991 SC 207.
19 1996 AIR 922.
20 2000 AIR 988.
21 MANU/RH/0063/2006, 2006 4.L.J 1794.
23 Supranote 2.
24 1996 AIR 1393.
25 AIR 2004 SC 3566.
26 Supranote 5.
27 (1995) 1SCC 14.
28 AIR 1996 SC 922.
29 Supranote 10.
30 Vishakha v. State of Rajasthan, AIR 1997 SC 3011.
31 Supranote 5.
33 Supranote 10.
34 1996 AIR 1393.
35 AIR 1991 SC 207.
36 1996 AIR 922.
37 2000 AIR 988.