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[Video] Mathura: The rape that changed India

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Not many remember that 40 years before the horrific events of December 16, 2012, there was another incident, where a girl even younger than Jyoti Singh was raped.

Her name was Mathura and she was raped by police constables.

She survived and appealed to our courts but did not get justice.

Mathura’s journey through the criminal justice system however, gave rise to a women’s movement that spanned the whole of India and led in 1983, to groundbreaking change in the law on sexual violence against women.

It also inspired an extraordinary act of courage from four law professors who dared to raise their voices against the judiciary and pursue legal reform.

Join us to learn from Padma Shri Professor Upendra Baxi, Dean of the Delhi University Faculty of Law Professor Ved Kumari, and Senior Advocate Rebecca John, the story of Mathura’s rape, its transformation of our vocabulary on sexual violence, the changes it brought about in the law, and the inspiring personalities who made it happen.

Written by myLaw

Damini (1993) – The Courtroom as Theatre

SayakDasgupta_InCamera

 

(The criminal trial has proved to be a most useful literary, dramatic, and cinematic device. It finds place in some of humanity’s earliest texts and in some of its greatest – Shakespeare and Dostoyevsky for example, made abundant use of the criminal trial to explore good and evil and the complexities of justice and judicial decision-making. Cinema too has found it hard to resist the lure of pitting individuals and belief systems against each other in a courtroom. In Camera is Sayak Dasgupta’s series of essays that examine the depictions of trials in cinema. He will look at how filmmakers have chosen to use trials and the criminal justice processes and what those depictions tell us about their view of cinema and the societies they made those films for.)

It’s one of the most potent and lasting images in Indian cinema: Sunny Deol standing in a courtroom in a gown and band screaming in his eardrum-shattering, nails-on-a-chalkboard voice, the famous (or infamous, depending on how you see it) lines: “Tareekh par tareekh, tareekh par tareekh, tareekh par tareekh, tareekh par tareekh milti rahi hai! Lekin insaaf nahin mila, milord! Insaaf nahin mila! Mili hai to sirf yeh tareekh!” followed by a peculiar sound effect that resembles the cracking of a whip. Every time Sunny Deol shrieks “tareekh” the whip-sound is used to underline the point. These lines have become, for better or worse, a cultural milestone. Rajkumar Santoshi’s Damini is perhaps most well known for just this one scene. The sentiment expressed in that piece of dialogue is reflected by several members of the legal community. In a myLaw interview, Soli Sorabjee himself called adjournments “the greatest curse” plaguing the judiciary. But it isn’t what was said in that scene in Damini that is interesting. It is how it was said.

Trial and error

The trial in Hindi cinema is a strange creature. Often it has almost no connection with reality. While the courtroom is a place governed by exceedingly strict rules of procedure, evidence, and conduct, all rules are suspended in the Bollywood version. Anyone can walk into the courtroom and offer testimony in the form of dramatic monologue, new facts and witnesses can be presented as a surprise element, a lawyer can pick up a bottle of medicine that has been presented as material evidence and drink it up to prove that it is not poison, and, as in the case of Damini, a defense attorney can even conduct his own version of a police lineup in the courtroom by presenting a bunch of men, faces covered in Holi colours, and shoving them onto the witness. There were several moments in the movie that made me clutch my head and exclaim, “What the hell is going on here?” But I don’t want to write about the legal and procedural inaccuracies in Hindi films. Films from all over the world have always played fast and loose with how legal systems work. Instead, I want to observe how the trial process has been represented in popular Hindi cinema and understand what that says about our collective perception of our system of dispensing justice. I decided to start with Damini simply because the lines from the film that I have mentioned above have left such an indelible mark on the Indian filmgoer’s psyche that even 23 years after the release of the film, they are still the first lines that come to mind when you mention law and film in the same sentence. Last year, we had conducted a light-hearted contest in which we had asked our followers on Facebook and Twitter to send in Dubsmash videos of themselves mouthing lines from any law-related movie. Over 80 per cent of the entries were of people vigorously enacting Sunny Deol’s “tareekh par tareekh” primal scream. Most of them were law students who hadn’t even been born when Damini was released.

But despite the incredible staying power of its dialogues, I realised that Damini is a very typically melodramatic ‘90s Bollywood movie that hasn’t aged very well. While it certainly means well with its strong denunciation of the treatment of women in India, it is often unbearably clunky and heavy handed.

*SPOILERS AHEAD*

The story so far

To briefly recount the story, Damini (Meenakshi Seshadri) is a small town girl who belongs to a lower middle class family. She is spotted by Shekhar (Rishi Kapoor), the son of a major industrialist from Bombay, and it’s love at first sight. Shekhar marries her and takes her to Bombay, but his family treats her more like a servant than a bahu. She befriends and becomes very close to the maid, Urmi (Prajakta Kulkarni). Several days go by and one day when the family is celebrating Holi at home, Damini witnesses Shekhar’s brother Rakesh (Ashwin Kaushal) and his friends raping Urmi. She tries to stop them but fails as they push her out of the room and lock the door. She rushes to get Shekhar and when the both of them manage to break the door, the rapists pick up a now unconscious Urmi, drive her away in a car and dump her at the side of a road. When the police come to question the family, they claim that the rape had not occurred in their home and that they had no knowledge of it. Shekhar convinces Damini to lie as well. However, Damini’s conscience eventually compels her to tell the truth to the police. Shekhar’s father, Mr. Gupta (Kulbhushan Kharbanda), hires “Barrister” Indrajit Chaddha (Amrish Puri), a suspender-snapping, hair-flicking, unscrupulous, slimy shyster as his son’s defence attorney. The trial begins.

BarristerChadha_AmrishPuriIt is interesting to pause here and note that the first lawyer we are introduced to is the utter embodiment of evil, representing absolutely every negative cliché in existence about a lawyer. Far be it from the film giving us a more complex lawyer character who must painfully grapple with the moral dilemma of representing a rapist, we are given evil incarnate, a man who actually believes that rape is no big deal and will go to any lengths to get his client off. A man we can safely hate. When the trial begins, neither the victim nor the accused are seen in court. The victim is in the hospital because of the severe injuries she has sustained from the rape. But the accused? There’s no explanation for their absence. What we see instead is Damini on trial. I found this erasure quite bizarre. Damini could have been the story of a rape survivor’s fight for justice. Instead, the story relegates the rape victim to the sidelines in her own case. In fact the victim doesn’t even survive the trial.

As the only witness who is willing to come forward Damini is put up on the stand and Chaddha proceeds to prove that she is insane. He does this by getting Shekhar’s family and Damini’s own father (Anjan Srivastav) to cook up false stories. He does not produce a single psychiatrist, doctor, or medical document to prove her insanity. Which seems to be fine with the court. Thanks to Chaddha’s cunning plan, Damini is committed to a mental facility, her testimony is discredited and the accused are released. At a later stage he encourages his client to get Damini murdered. Once again, it’s important to note here that Chaddha is not just following his client’s orders here. He is actively hatching the evil plots and advising his client to do evil things out of his own innate evilness. What we need to keep in mind here is that the film shows him as “the lawyer”. He is referred to as “Barrister” and at one point Sunny Deol calls him “kanoon ke dalal”.

The question of agency

The fact that the protagonist of Damini is a woman witness who battles against all odds to get justice for the wronged is in itself quite revolutionary, but as I said earlier, the film doesn’t age too well. The language of the film is steeped in the traditions of the popular movies of the late ‘80s and early ‘90s. Although Damini seems to be a talented dancer, she seems to have no ambitions of making a career out of it. In fact, she seems to have no career ambitions at all despite being quite intelligent, independent, and educated. When she marries Shekhar, she immediately becomes a housewife and everyone settles down in their traditional gender roles, Damini_MeenakshiSheshadrino questions asked. In one scene, Damini says to Urmi, “Pati ko apne hee haath se pakaake khilaane mein bahut sukh milta hai. (It is a great pleasure for a wife to cook for her husband.)” All of this seems jarringly dated in the age of films like Kahaani and Queen. Her daring act of pure agency is when she defies the family and goes to the police to reveal the truth about the rape. But even here it is revealed that the police and other interested parties are actually using her as a pawn in a larger game of deceit and intrigue. The very act that gave her some agency is completely undermined. Throughout the movie Damini is used, manipulated, harassed, humiliated, and imprisoned. Her other act of agency comes when she escapes from the mental asylum. She is chased through the streets by Rakesh and his friends until she runs into Govind (Sunny Deol), who saves her and becomes her protector. Damini running to Govind for protection, standing behind him, and peering nervously over his shoulder while he faces her assailants in all his manly glory is another recurring image in the film. It seems very obvious that Damini has been turned into a victim. From the moment Govind enters the film, he becomes the archetypical male protective force and the mover of the plot.

AdvocateGovind_Damini_SunnyDeolWho do the lawyers represent?

Govind is also a lawyer, but the film goes to quite some length to show that he isn’t really a “lawyer”. When Damini runs into him, he has quit the law, disgruntled and disillusioned by its failure to help him get justice for his dead wife. He constantly speaks of himself as an outsider to the profession and refers to the system as a tool in the hands of the rich and powerful. One can’t help but come to the conclusion that he is supposed to represent the voice of the frustrated masses dressed in a gown and band only so that it can find a place inside the courtroom.

This polarised positioning of the two lawyers seems to perpetuate a dangerous myth about the legal profession: that lawyers always agree or sympathise with whomever they represent, otherwise they would not take the case. This patently false assumption often leads to prosecutors being held as heroes and defence attorneys being considered villains by the layman.

As the literal (screaming) voice of conscience in the film, Govind is supposed to be representing us all in that courtroom. Through his wit, intelligence and guile, he is able to take on Chaddha’s most cunning moves and thwart them in court. Isn’t that the dream? Throw out the rules and regulations and we could all be Govind. If it weren’t for all those bothersome procedures we could all just put on a gown and band and give stirring speeches in the courtroom and defeat our enemies by the sheer force of our intellect. However, bring in all the rules and procedures, and lawyers like Chaddha win. American movies based on the law tend to emphasise a lot more on rules than Indian ones. Whether it is a light-hearted jaunt like My Cousin Vinny or a serious drama like A Few Good Men, procedure plays a critical role in the Hollywood depiction of a trial. The fact that cases can be won or lost on procedural technicalities has been drilled into the American audience’s mind, so much so that entire TV shows like How To Get Away With Murder, Law & Order, and The Practice can be largely based on how procedural intricacies can frustrate or help lawyers. For the American audience, the courtroom is a battlefield or a competitive arena where strict rules make for riveting games and clever strategies.

For the Indian audience, on the other hand, the courtroom is a theatre where the drama unfolds. In many Indian films based on legal trials one gets to see the spectacle of a person, not necessarily a lawyer, giving a long uninterrupted speech while animatedly walking around the entire room, followed by thunderous applause from the people sitting and watching the performance. Indeed, Govind’s “Tareekh par tareekh” speech in Damini gets a standing ovation in the courtroom. We like to see ourselves in the dramatis personae, hear our voices emanating from their mouths. The film trial, for us, is meta-theatre – we want to be surprised, delighted, enraged, shocked, moved; we want a satisfying denouement. We want to believe that within this courtroom anything can happen, and above all justice, or at least our conception of it, will be served. We expect from the trial everything that we expect from the film itself.

Damini starts off with a quote from none other than India’s most famous lawyer, Mahatma Gandhi:

“There is a higher court than courts of justice and that is the court of conscience. It supersedes all other courts.”

This is a line that is repeated right at the very end of the film by the judge who is presiding over the trial as he congratulates Damini and commends her for her courage, integrity, and strength of will. But it also sets the tone of the film and perhaps frames our films’ attitude towards our judicial system. Isn’t it quite an awkward paradox? In the court of public opinion our actual courts of justice don’t stand a chance.

(Sayak Dasgupta wanders around myLaw.net looking for things to do.)

Written by myLaw

The marital exception to rape: How to make a crime disappear

SayakDasguptaSir Matthew Hale, one of England’s greatest jurists, was a simple, humble, and fastidiously honest man. In fact, so unimpeachable was his character that, despite being a royalist who defended the opponents of the Commonwealth of England during the English Civil War, he was still appointed a justice of the common pleas by Oliver Cromwell when the Commonwealth came to power. When the Restoration happened, the King appointed him Chief Baron of the Exchequer, even though he had held office in the government of his mortal enemies. Hale, it is said, had no desire to receive the knighthood, so he literally had to be tricked into it (Lord Clarendon invited Hale to his house where the King was waiting to knight him on the spot).

For all his virtues, though, Hale was as much of a fusty old antiquarian when it came to women, as you would expect from a privileged, white, devoutly Puritan Englishman from the 1600s. In a letter to his granddaughters, he wrote longingly of a time when “the education and employment of young gentlewomen was religious, sober, and serious, their carriage modest and creditable was their habit and dress” and “when they came to be disposed of in marriage, they were themselves a portion whether they had little or much, and could provide for and govern a family with prudence and discretion, and were great helps to their husbands, and knew how to build up a family, and accordingly were instruments in it”. He bemoaned how times had changed and “young gentlewomen learn to be bold, talk loud and more than comes to their share, think it disparagement for them to know what belongs to good housewifery, or to practise it, make it their business to paint or patch their faces, to curl their locks, and to find out the newest and costliest of fashions.” He wrote that he would never allow his granddaughters to be like this, that he would train them to be “good wives and better portions to your husbands than the money you bring, if it were double to what I intend you, for you will be builders up of a house and family, not destroyers of it”. Above all, he wanted them to be “good examples to others, and be thereby a means to take off the reproach that justly enough lies upon the generality of English gentlewomen, that they are the ruin of families”.

Like most men of the time, Hale saw women as some sort of loveable hybrid between a trainable pet and an obedient servant, who should be strictly controlled lest they go out of hand. It is perhaps somewhat revealing that after his wife died, Hale married his housekeeper, Anne Bishop, whom he described in his will as “most dutiful, faithful and loving”, words that can also be used to describe an adoring butler or a loyal dog.

No longer enough to create further exceptions”

Four centuries of faith in wedding vows forming permanent consent for sex. Mathew Hale (left), when he was Chief Justice of the King's Bench and Union Minister for Women and Child Development, Maneka Gandhi. Maneka Gandhi's image is from the Press Information Bureau.

Four centuries of faith in wedding vows forming permanent consent for sex. Mathew Hale (left), when he was Chief Justice of the King’s Bench and Union Minister for Women and Child Development, Maneka Gandhi. Maneka Gandhi’s image is from the Press Information Bureau.

Perhaps Hale’s most famous work as a legal scholar is the Historia Placitorum Coronæ or The History of the Pleas of the Crown, which was published in 1736 (60 years after his death, despite an instruction in his will clearly stating that none of his manuscripts were to be published posthumously) and is considered a seminal work in the development and evolution of common law. It was in this book that he wrote the now (in)famous line that had been used until relatively recently in most common law countries to defend marital rape:

“But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”

The husband, then, by virtue of marriage, gained complete right over his wife’s body. Wedding vows were meant to be a form of permanent consent for sex. It would not be a stretch to say that for most women at the time, the bond of marriage was akin to bonded servitude mixed with sexual slavery.

This would be the norm in England for the next two centuries, but changes in social attitudes towards marriage began to make the marital exemption to rape seem increasingly more ridiculous with every passing year. In 1990, the Law Commission in England released the Working Paper No. 116 on Rape within Marriage in which it recommended unequivocally that the exemption should be abolished. But the final death knell for the spousal exemption came in 1991 with the House of Lords’ landmark decision in R. v R, in which the court held that “Hale’s proposition is based on a fiction and moreover a fiction which is inconsistent with the proper relationship between husband and wife today.” The judges observed that “courts have been paying lip service to the Hale proposition, whilst at the same time increasing the number of exceptions, the number of situations to which it does not apply. This is a legitimate use of the flexibility of the common law which can and should adapt itself to changing social attitudes,” but then added the powerful line: “There comes a time when the changes are so great that it is no longer enough to create further exceptions restricting the effect of the proposition, a time when the proposition itself requires examination to see whether its terms are in accord with what is generally regarded today as acceptable behaviour.”

On the question of whether the court should step aside to leave the matter to the Parliamentary process, the House of Lords stated: “This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it.”

RvR_HouseofLords_ChiefJusticeLordLane

With these words, England removed the marital exception to the crime of rape. In the United States, states had begun to remove this exception since the 1970s, and by 1993, all 50 states had done so. By the dawn of the 21st century, marital rape was a crime in most European nations. Our neighbour Bhutan had declared it a crime as far back as 1996, and Nepal followed suit 10 years later. Today, marital rape is a crime in the majority of the countries in the world. India, however, chooses to remain on the list of countries where it isn’t; a list that includes Afghanistan, China, Eritrea, Iran, Iraq, Libya, Pakistan and Saudi Arabia.

In the wake of the horrific events of December 16, 2012, the Justice J.S. Verma Committee reflected long and hard on how our criminal law system deals with various kinds of sexual violence perpetrated on women and children. Nearly six pages of its Report concentrated on the problem of marital rape. It recommended that the exception for marital rape be removed (Exception 2 to Section 375 of the Indian Penal Code, 1860 states that “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape”), and that the law ought to specify that a marital relationship between the perpetrator and the victim cannot be used as a defence against rape and that it should not even be regarded as a mitigating factor justifying lower sentencing for rape.

MaritalExceptionToRapeIPC

The ordinance that was drafted on the basis of the Report included many of its recommendations but left out some of the most important ones, perhaps chief among them the recommendation on marital rape. Defending the ordinance, Union Finance Minister P. Chidambaram said that issues like marital rape were difficult and that the government needed more consultations. This was, to put it mildly, perplexing. In modern times, the criminalisation of marital rape seems to be a very simple, logical, rational conclusion. In fact, one needs to perform several extraordinary feats of mental gymnastics to justify and legitimise the opposite. How is it that those who maintain that rape should attract the harshest punishment for the perpetrator suddenly find the act acceptable when a husband does it to a wife, as if a wedding is a Harry Potter-esque invisibility cloak that makes the crime disappear?

As a response to the government’s hedging on the issue, we posted the following comic on Facebook on February 9, 2013:

WSDP - Marital Rape

Now, I confess there are problems with this comic – it’s a little simplistic, and also Einstein might not have been the best choice to deliver this lesson as he was hardly the greatest husband in the world – but, the point was that it does not, or should not, take a genius to understand why the marital exception to rape should be removed.

A family that disrespects individual autonomy together…

And now, it seems the marital exception is one of those things the UPA and NDA governments agree upon. Well actually, while the former claimed that they were at least considering it, the latter seem to have ended the conversation altogether. Maneka Gandhi, the Minister for Women and Child Development has said, “It is considered that the concept of marital rape, as understood internationally, cannot be suitably applied in the Indian context due to various factors like level of education/illiteracy, poverty, myriad social customs and values, religious beliefs, mindset of the society to treat the marriage as a sacrament, etc.” This is a stunning departure from her position on the marital exception to rape just last year and the most puzzling argument I have ever heard about a legal issue. What does illiteracy or poverty have to do with amending a law that demonstrably causes physical and mental trauma to individuals? Did social customs and religious beliefs of some people stop the legislature from making laws against sati, child marriage, dowry and caste-based discrimination?

MaritalRape_CriminalLawAmenedment2012

The “mindset of the society to treat the marriage as a sacrament” point is an old one. The claim is that marriage is a sacred bond between a man and a woman (only between a man and a woman), and that the state has no business interfering in the domestic affairs of a married couple. This argument is woefully flimsy. Laws on domestic violence and divorce would not exist if the state did not think legal intervention was necessary even in a marriage.

A similar argument was used in a report on the recommendations of the Justice Verma Committee prepared by the Department-Related Parliamentary Standing Committee on Home Affairs and presented in both houses in March, 2013. It stated that while some members had suggested that Section 375 of the Indian Penal Code should allow “some room for wife [sic] to take up the issue of marital rape”, that “no woman takes marriage so simple [sic] that she will just go and complain blindly” and that “consent in marriage cannot be consent forever”, several members “felt that the marital rape [sic] has the potential of destroying the institution of marriage.” The report went on to say that “In India, for ages, the family system has evolved and it is moving forward. Family is able to resolve the problems and there is also a provision under the law for cruelty against women. It was, therefore, felt that if the marital rape is brought under the law, the entire family system will be under great stress and the Committee may perhaps be doing more injustice.”

What this suggests is mind-bogglingly terrifying. It seems to assert that the foundation of an Indian family is not based on trust, love, equality, understanding, cooperation, mutual respect and interdependence. It is based on a skewed power structure where one partner gets to inflict violence on the body and mind of the other, where the success of the relationship depends on how much the partner with less power can endure. Imagine being punched in the stomach by your brother and then being told that you should just suck it up because the law says when your sibling hits you, it’s not assault. Now imagine that he beats you up whenever he pleases and you are told that this is not a crime being committed repeatedly on your body because surely, as a family, you can work things out. If you report him to the police, the family system in India will crumble. Surely, the preservation of the “Indian family” is more important than the physical and mental trauma being caused to you.

The Standing Committee consisted of 29 members at the time, none of whom had any specific experience or expertise in women’s issues. Only 3 of the members were women. One of them was Dr. Kakoli Ghosh Dastidar, a Trinamool leader who in December, 2012 had said that the gang rape of Suzette Jordan in Park Street, Kolkata “was not at all a rape case. It was a misunderstanding between the two parties involved between a lady and her client,” thus insinuating that Jordan was a sex worker. When the report was published, a dissenting note was appended to it, and among other things, it condemned the Standing Committee’s position on marital rape as unconstitutional and contrary to the Justice Verma Committee’s recommendations. The note was given by only two members of the Standing Committee: D. Raja and Prasanta Chatterjee, of the Communist Party of India and Communist Party of India (Marxist), respectively. No other member recorded dissent.

India’s relationship with its colonial era laws is simultaneously confounding and tragicomic. On the one hand we puff up our chests with pride when we think of our freedom struggle and victory over our colonial oppressors, and on the other hand we cling stubbornly and blindly to their archaic laws, which have no place in modern times – laws that even they have done away with. But what is truly depressing is that we undervalue women so much that we would rather grasp at half-baked fictions and outdated notions of family than address the real harm being done to real individuals in real time. We are only too happy to declare that our society is too primitive to accept modern ideas and then sacrifice the safety of women on the altar of our own apathy. Yes, laws are often only amended after there has been a change in social attitude towards the issue in question, but in India, we have also had a long history of enacting laws as instruments to bring about such social change. We can either embrace that history and move with the times or throw in our lot with a man who died four centuries ago and a belief that should have died with him.

(Sayak Dasgupta wanders around myLaw.net looking for things to do.)

Written by myLaw

Stronger penalty for sexual offences

Crimes of sexual violence against women are daily on the increase, although a large number of them usually go unreported. No woman going to college, meeting friends, travelling by a public transport vehicle, simply walking on the or even staying in the house, is completely safe. In the case of Amit Kumar @ Mittal v. State of U.P. and others, 2011 (105) AIC 277 (Alld. H.C.), the Allahabad High Court had an opportunity to examine Section 354 of the Indian Penal Code (“IPC”) and the feeble penalty that it provides for, specially in context of the recent surge in crimes against women all across the country.

The petitioner in this case had been charged under Sections 452, 323, 354 and 506 of the IPC for forcibly molesting a woman at gun point in her own house, and had filed a petition under Section 482, Code of Criminal Procedure (“CrPC”) for quashing the said F.I.R. The high court argued that it is not likely that any women would falsely make such allegations of her modesty being outraged as a result of the criminal assault by the petitioner, as a social stigma is attached to a victim of molestation, and an F.I.R with such allegations is usually lodged with great reluctance as it adversely reflects on the honour and dignity of the woman who is the victim of a sexual crime. The high court opined that a cognizable offence was clearly disclosed against the petitioner, and therefore the F.I.R could not be quashed.

After deciding the issue of the petitioner, the high court moved on to discuss the legislative lacuna regarding the punishment for molestation under the IPC, which only prescribes a sentence up to two years for an offence (Section 354 of the IPC), and on top of that, makes the offence a bailable one. The Allahabad High Court felt that victims of such sexual crimes suffer great shame and humiliation because of the attending social stigma and personal and family dishonour for the aggrieved female, which also means that the victim is usually reluctant to lodge any complaint or FIR against a sexual crime. In the rare case when she takes recourse to the law enforcement agencies, an absolute mockery of justice results when the molester is let out on bail at the police station itself, and he becomes free to again stalk and terrorize the victim or to commit another criminal assault on her.

Violence against women and sexual offences are a disturbingly regular part of Indian life. The Allahabad HC addressed this issue in its recent judgment. Image above is taken from nafmo's photostream on Flickr. Image (but not the rest of this work) is licensed under a Creative Commons Attribution-ShareAlike 2.0 Generic License.

Violence against women and sexual offences are a disturbingly regular part of Indian life. The Allahabad HC addressed this issue in its recent judgment.
Image above is taken from nafmo’s photostream on Flickr.
Image (but not the rest of this work) is licensed under a Creative Commons Attribution-ShareAlike 2.0 Generic License.

The court felt that such a lenient punishment appears to have been prescribed for the crime under Section 354 because of a patriarchal mindset, which does not accord equal status to a man and a woman, and is indifferent to the psychological trauma that a woman must undergo when criminal force is applied to her for outraging her modesty. As a matter of fact, the court noted that if a woman or girl child is viciously molested, it can be a highly traumatic experience which can leave a permanent psychological scar on the woman or girl child as she suffers humiliation, degradation and violation in the same manner similar to that she would suffer if she were an actual victim of a rape. In fact an argument was made in Sakshi v. Union of IndiaAIR 2004 SC 3566 that crimes affecting the sexual integrity and autonomy of women and children and should be equated to rape, but the argument to this extent was not accepted on the ground that where there is no penile penetration, no offence of rape under Section 375 of the IPC is made out.

Discussing the psychological and emotional trauma that a victim of a sexual crime undergoes, the Allahabad High Court referred to the paragraph in Sakshi where the Supreme Court quoted from Susan Brown Miller’s important book, Against our Will, 1986:

“… in rape … the intent is not merely to ‘take’, but to humiliate and degrade … Sexual assault in our day and age is hardly restricted to forced genital copulation, nor is it exclusively a male on female offence. Tradition and biologic opportunity have rendered vaginal rape a particular political crime with a particular political history, but the invasion may occur through the mouth or the rectum as well. And while the penis may remain the rapists, favourite weapon, his prime instrument of vengeance … it is not in fact his only tool. Sticks, bottles and even fingers are often substituted for the “natural” thing. And as men may invade women through other orifices, so too, do they invade other men. Who is to say that the sexual humiliation suffered through forced oral or rectal penetration is a lesser violation of the personal, private inner space a lesser injury to mind, spirit and sense of self?”

Discussing the provisions of the First Schedule to the Code of Criminal Procedure, the court pointed out several anomalies where less grave offences appear to have been made non-bailable whereas Section 354 of the IPC is bailable. For example, Section 324 of the IPC, which only speaks of voluntarily causing simple hurt by a dangerous weapon or means, and is triable by a Magistrate (and does not carry the psychological harm associated with a criminal assault for outraging a woman’s modesty) has been made non-bailable by a subsequent amendment vide Act 25 of 2005. Similarly, an offence of mere criminal intimidation, without any actual assault punishable under Section 506 of the IPC has been made cognizable and non-bailable in the State of U.P., vide notification dated 31.7.89.

The high court also referred to the state amendments in the State of Madhya Pradesh, where Section 354A of the IPC has been introduced, which speaks of an assault or use of criminal force to a woman with intent to disrobe her, which has been made punishable with imprisonment for not less than one year but which may extend to ten years and fine and the offence has been made non-bailable and triable by a court of session. The States of Andhra Pradhesh and Orissa have also passed similar amendments making the offence under Section 354 a non-bailable one.

Taking a cue from the abovementioned states and looking at the rampant and daily increasing prevalence of such crimes of sexual violence in the State of U.P., in Delhi and in other places, the Allahabad High Court felt that it is high time that the State of U.P. and even the Union of India should become sensitive to this grave issue, and consider imposing stringent laws for putting a check on such crimes of sexual violence against women and children. The court therefore recommended that the State of U.P. and the Union of India consider amending the provisions of Section 354 of the IPC and the First Schedule to the Code of Criminal Procedure, by prescribing a higher sentence for the offence and for making it non-bailable and triable by a court of session.

 

(Vipul Kharbanda is an Allahabad-based advocate.)

Written by myLaw