BEYOND TECHNICALITIES : A CALL FOR JUDICIAL SENSITIVITY IN INDIAN RAPE CASES 

INTRODUCTION :

India, a land which celebrates goddesses with unmatched splendor, admiration and divinity: where goddesses are looked at as an epitome of strength and power. Yet. in this nation where female gods are honored as a symbol of power and strength, women in the nation face a completely different and unfortunate reality. Each passing day, we get to hear news of women being subjected to harassment, torture, violence and rape. According to the NCRB’s 2022 Report, there was a four percent increase in crimes against women from 2021. There has been a surge in crimes against women with each passing day. 

RAPES IN INDIA :

Rape is the a violent and heinous crime wherein a woman is sexually assaulted that is she is subjected to non-consensual sexual activity by a person. In India, the number of rape cases are increasing. In the year 2022, the number of Recorded Rape Cases in India were more than thirty thousand, in this context it should be kept in mind that there are several rape incidents which go unrecorded due to the stigma around rape victim. Therefore, the real number of rape incidents in the country can be way more than the recorded number.   

JUDICIAL ATTITUDE TOWARDS RAPE CASES :

India has witnessed significant judicial and legal advancements. The judiciary has provided several judgements all of which aim to increase the scope of rights of individuals so that they can live a dignified life. However, the judicial attitude towards rape cases has been quite mixed. Where in some cases the judiciary has given several progressive judgements, however in some cases the observations made by the judiciary has raised concerns about their alignment with contemporary views on gender equality and justice. In recent times, we often see the judges being sensitive to the victim of the offences however this is not the case always. 

There have been cases of accused being released on bail on peculiar conditions. The offence of rape is a heinous crime which affects the victim physically and psychologically, in such circumstances a man guilty of such crime should be given the strictest punishments. Instances of releasing the rape accused on promises of marriage and even  tying a rakhi have been witnessed in several cases, such leniency in such a heinous crime undermine the very foundation of justice In a case, the Madhya Pradesh High Court (Indore Bench) released a sexual harassment accused on the mere condition that the victim would tie a rakhi to the accused and the accused would promise protect her at all times and shall pay to the victim 11,000 as ritual offered to sisters on the occasion of Raksha Bandhan and would seek her blessings. However, the Supreme Court later quashed the said order. 

Further there have been several cases where the courts lay down certain expectations regarding the behavior of the rape survivor. In cases where they are not met, their character is perceived as questionable. Even in this period of time, we come across such judgements where the character of the victim is evaluated, wherein the victim’s conduct becomes more important than the perpetrator’s actions. Such observations result in strengthening of already existing stigmas and stereotypes around rape survivors. In a case in 2020, the Karnataka High Court made observation feeling tired and falling asleep after the act was “unbecoming of an Indian Woman”. In the case of Vikas Garg and Ors versus. State of Haryana, the Punjab and Haryana High Court went on to blame and judge the character of the victim of rape and stated that she had a “promiscuous attitude”. In a recent case, the Calcutta High Court acquitted a man accused of rape and also asked adolescent females to “control” their sexual urges and also protect their self worth and dignity. However the same judgement was quashed by the Supreme Court.

There have been several such cases, where  the character of the victim was questioned like in the Case of Masauddin Ahmed vs State of Assam, Arif Iqbal @ Imran vs State.  Such judgements shift the focus from the accused and the actual evil and ending in victim blaming eventually failing to provide justice to the victims.

There have been several instances where the rape accused has been released or acquitted on mere reasons of procedural technicalities, stringent adherence to legal definitions, admissibility of evidence etc. Such narrow interpretation in heinous offences denies justice to the victim. There is a strong need for sensitivity in such cases, narrow and strict interpretation of law in such cases eventually lead to injustice. It is important to understand the survivor or victim in such cases. In a case of the Bombay High Court, a man was accused under the POCSO Act, however he was acquitted for the reason that there was no sexual assault due to lack of skin to skin contact. The Court further held that as the garments of the child could not be removed, the case would fall under section 354 of the Peal Code for outraging the modesty of woman and not under the POCSO Act which provides for higher punishment. (Satish Ragde vs State of Maharashtra).

In another case, the Rajasthan High Court held that taking off of a girl’s inner garments and undressing himself does not constitute an “attempt to rape” but rather “outraging woman’s modesty”. According to the judge in order for the incident to be an attempt to commit rape it must have progressed beyond the preparatory stage. In such crimes, considering it merely an offence of outraging the modesty of woman, just reduces the sentence of the offender even though it is evident about the real intent of such person. In another case, the Rajasthan High Court set aside the rape case of the accused as the accused marred the victim.

In a case, a man was convicted for rape and murder of a child and sentenced to death, however the sentence was commuted to life imprisonment as the offender “offered prayer to god many times a day”. Even though his conviction was upheld, commuting a convict involved in such a rare and grave crime for this reason seems to overlook the profound impact on the victim. This leniency, may inadvertently undermine the pursuit of justice for those directly affected.

Such rulings and judgements show how criminal offences are strictly and stringently interpreted. However, in such heinous offences the law should be interpreted in such a  way that the perpetrators are properly punished and that justice is served. In such cases sensitivity should be towards the victim, and not the offender. The conviction rate in such cases has been very low even after the huge number of cases reported each year. there have been many cases where the judges acquit the rapists even after having proper evidence, for instance, in the case of Mohd Habib versus State, a man who was accused of raping a minor was acquitted because the genitals of the man had no injury which indicates that there was no resistance from the victim. In this case the Court completely disregarded other important evidences such as the age and injuries of the victim and narrowly focused on only the rapist’s injuries to acquit the accused. 

 Judicial systems should not focus on technicalities, they should focus on how the perpetrator should be punished for the grave injustice caused to the victim. When judiciary prioritizes technicalities over the gravity of the crime, the accused gets the advantage either by getting acquitted or by receiving a less sentence. If sexual offences are not handled strictly and if the offenders are not held completely accountable for their actions, such offences will continue to take place. 

In a country like India, where many rape incidents are not even reported, it takes a woman a lot of courage to stand up against the injustice and seek justice against the perpetrators misdeeds. Subjecting such people to insensitive questions in court about their character etc. can have harmful effects on the victim’s psychological and mental state. Such insensitivity towards the victims of rape not only effects the victim but also reinforces harmful stereotypes surrounding victims of rape. It is important for the Courts to not only give adequate punishment to the wrongdoers but also be sensitive and understanding towards the victims of such grave offences.  

However, there have been several cases and judgements as well which emphasized on the need for more sensitivity of courts towards rape victims  while handling rape cases. In  the case of Nikhil Sharma vs State of J&K the Supreme Court emphasized that Courts must be mindful and cautious when handling rape cases as the victims already go through a lot of mental, emotional and psychological distress and trauma as well as social stigma. Further in another case, Aparna Bhat vs Madhya Pradesh, the Court laid down guidelines for judges in granting bail in cases of sexual assault. In the case of Aparna Bhat versus State of Madhya Pradesh, Justice AM Khanwilkar and S. Ravindra Bhat emphasized that when a case involves survivors, legal reasoning and language should never minimize the seriousness of the offense or belittle the survivor.  The Supreme Court in this case advised the lower courts to refrain from using stereotypical observations and scrutinizing the character of the victim, and that the Judges should prioritize the victim over the well being of the accused.

 In the case of Delhi Domestic Working Women’s Form v. UOI and Ors. The Supreme Court made recommendations for assisting rape victims. Further in the case of State of Maharashtra and Anr. Vs. Madhukar Narayan Mardikar, the Court held that every women has right to privacy and the same cannot be invaded. In this Case the court held that evidence given by a woman cannot be overthrown on the ground of unchastity, every woman has equal protection before law. 

CONCLUSION :

Even though there have been several progressive judgements which seek to protect the victim and their rights. There still have been several remarks and orders wherein the woman is subjected to insensitive questions and remarks on her character, further instances of acquittal of accused on technical grounds is also prevalent in such cases. With rising rape cases and low conviction rates, it has become very important for the judiciary to go beyond the technicalities and deal with such cases with more empathy and deeper understanding.  Instead of focusing on the victim’s actions, the attention should be towards the accused’s misdeeds. Such heinous crimes should be strictly dealt with,  leniency towards the accused undermines the grave nature of such offences. Such heinous crimes should result in serious punishments. A more empathetic and sensitive attitude is the need of the hour, if the Courts fail to impose stringent and strict consequences for such offences, it sends a wrong message to the society. In order to achieve a society which is safe for women and girls, it is necessary to change the judicial attitude towards the victims of sexual offences. It is the perpetrator who deserves to be humiliated and not the victim. Despite existing judgments and guidelines for victim protection, there is still a crucial need for stricter reforms to ensure justice is effectively served in these cases.

REFERENCES :

1. The Leaflet , https://theleaflet.in/judiciarys-response-to-rape-cases-suffers-from-colonial-hangover/

2. Times of India, https://timesofindia.indiatimes.com/city/delhi/judges-rape-remark-insensitive-delhi-high-court/articleshow/28484760.cms

3. Juris Centre, https://juriscentre.com/2024/05/08/victim-blaming-on-women-by-courts/

4. Feminism in India, https://feminisminindia.com/2022/12/06/11-progressive-judgements-of-2022-that-made-us-strong/

5. Deccan Herald, https://www.deccanherald.com/india/judicial-remarks-in-rape-cases-that-stoked-debates-in-india-1172133.html

6. Bar Bench, https://www.barandbench.com/columns/the-ideal-rape-victim-in-the-eyes-of-the-court