Staggering Towards Gender Democracy: The Case of The Indian Judiciary and Rape

I. I attended a talk yesterday by a sociologist or sociology student from Delhi who was discussing the testimony in the trial of a 10-year old girl in India who was (allegedly, but let's be honest) raped by her stepfather.  The speaker translated one of the defense attorney's questions, during at least 4 hours of questioning of the girl, as the following.  I paraphrase for lack of notes:

"You're not answering the questions!  The sooner you do, the sooner this will be over!"

The questions referenced were, to the best of my recollection, about the girl's ability to tell time and how long she had been raped for.

The example is illustrative of a long trend in South Asian "justice" of the failure not just to address rape seriously, and not just to victimize the victim, but to absolutely turn the tables on them.

II.  Let's first recount some of the post-Independence history of Indian rape cases. In Moti Ram (All India Reporter, 1955 Nag 121), a 1950s case, 3 police officers' convictions for rape are held, but primarily for abuse of power and the court didn't trust the woman.  In the late '70s, Pratap Mishra (All India Reporter, 1977 SC 1307), Pratap Mishra V. State of Orissa (AIR 1977 SC 1307), a woman who was five months pregnant was raped in succession by three people.  According to the report of a meeting by High Court judges (pdf) "The Supreme courts held that the absence of any injuries either on the accused or the prosecutrix clearly showed that she did not put up any resistance to the alleged rape committed by the accused. The only irresistible inference therefrom was that she was a consenting party and that was reinforced by other circumstances in the case."

In 1983, the Indian Supreme Court in Bhoginbahi Birjibhai (AIR 1983 SC 753), after making a number of points acknowledging that rape is serious and doubts of victims is to give weight to claims of patriarchy in Indian society and upholding the conviction of a rapist of two 10-12 year old girls, decided that his sentence ought to be reduced from 2 1/2 years (plus fines) to 15 months (plus fines) because of the following "special circumstances":

"The appellant has lost his job in view of the conviction recorded by the High Court. The incident occurred some 7 years back. The appeal preferred to the High Court was dismissed in November 15, 1976. About 6- 1/2 years have elapsed thereafter. In the view that we are taking the appellant will have to be sent back to jail after an interval of about 6-1/2 years. The appellant must have suffered great humiliation in the Society. The prospects of getting a suitable match for his own daughter have perhaps been marred in view of the stigma in the wake of the finding of guilt recorded against him in the context of such an offence."

And so forth...

As you go forward (and even here), you see some progress, at least at the Supreme Court level; but if this is what "progress" over 50 years results in, then that seems to be a cause for despair. I'm not an expert, but from what little I know, the state at which things remain on a day-to-day basis is fairly atrocious.  As far as I can remember, marital rape isn't even a crime, and even if it were, how many of those would get reported.

III.  What to do?

I am honestly at a loss.  Some suggestions have been: All women courts; special rape tribunals; personally, I think a reservation system for the judiciary for women might do some good for this and other gender issues (marriage, divorce, etc.); and extrajudicial arrangements for justice.

But as things stand right now, the situation seems absolutely abysmal.  Even if the Supreme Court is gradually figuring things out, up to a limit, and even if it overturns High Court decisions in a good way, and even if the lower courts get better, and even if more rape cases are reported or otherwise dealt with...

Well, what kind of time frame are we looking at here?

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although i do understand the

although i do understand the tendency, and the possible effectiveness, to opt for a gendered solution to rape trials - i.e. all women's courts or special tribunals, which presumably comprise mainly women - this is a stop-gap solution and would have devastating long-term effects on the construction of rape, legally and societally. it would reinscribe rape as only, or predominantly, a women's issue - something that men can never, indeed, need never, understand. moreover, a special women's court ruling may become perceived as a ridiculous "battle of the sex," doing nothing to actually help redefine rape, whether legally or in the popular imagination. i think that there needs to be more of a push to redefine rape as the violent and illicit execution of power - something that the women's movement in india has been gradually effective in doing. and then there's that terrifying "e" word - education. how about public service/education announcements? when was the last time you saw a glitzy bollywood star do an anti-rape ad? and of course, it means created a gender/power-conscious legal education.i think the "re-imagining" of rape in terms of power is particularly important in view of that day when violence within the lgbtq community in india is finally recognized!!

Sorry - Mathura, which you

Sorry - Mathura, which you can Google, is in my mind one of the most shocking breaches of justice - one of the worst judgements - in the history of the Supreme Court; it was also a watershed moment in the Indian womens' movement. There's a very powerful open letter that was written to the Supreme Court by Upendra Baxi and others in response to this, but I cant find it.

Other infamous rape cases to Google are Bhanwari Devi and Mohammed Habib vs State.

You're right that the problem is no longer with the content of laws but the patriarchal fancies of judges -- which go right up to the SC.

For instance, in 1983, largely in response to Mathura, Parliament added an amendement to the Evidence Act 1872. Section 114 permitted Courts to make certain presumptions: for instance, that a man who is in possession of stolen goods may be presumed to have stolen them, unless he has a damn good excuse. The new section 114(a) directs Courts to presume that if intercourse has been proven, and a person has been charged with rape, the Court shall presume a woman did not give consent if that is what she alleges. There aren't any other special presumed fact sections, so yes, thats pretty radical.

On the other hand, the Evidence Act still has lots wrong: Section 52-54 provide that the character of the accuser is usually irrelevant in civil or criminal cases. Notwithstanding that, Section 155 allows that the credit of a witness may be impeached by the adverse party in four situations: the fourth being when a man is prosecuted for rape or an attempt to ravish, and it may be shown that "the prosecutrix was of generally immoral character".

Thanks for the comments.

Thanks for the comments. Yeah, i'm not as well informed about this as I would like. Which probably saves my mental health.

I meant to include this before, but you can actually find a lot of cases here, the World Legal Information Institute. Very good database. For example, here are all the Indian Supreme Court cases that mention the word rape.

Oh my god, you haven't

Oh my god, you haven't mentioned Mathura!

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