Introduction:
For years the women’s privileges have been forsaken by our patriarchal culture. The thinking of people that females are needed to be guarded and saved from the world has prompted the formation of various evil practices, traditions and rules. Recently, an essay written six years ago by Yogi Adityanath, the Chief Minister of Uttar Pradesh was in the news. In which he wrote:
“Shastras have talked about giving protection to women. Just like urja (energy) left free and unchecked causes destruction, women also don’t need independence, they need protection. Their energy should be channelised to be used productively”.[1]
If a minister has such a viewpoint then one can envision what views an ordinary individual can have. Why has there consistently been a question around women’s independence and character? For what reason is the supposed safeguarding of culture, traditions or rules, is always women’s obligation?
Rape is one of the monstrous crime which can be committed against an individual. It not only injures a person physically but mentally and emotionally as well. Furthermore, when that person goes to seek justice, then the character of that person is questioned. To demonstrate this we can refer to TUKARAM V. STATE OF MAHARASHTRA[2]. This case left a mark on the legal history of India.
Parties involved in the Case
Appellant- Tukaram and others
Respondent- State of Maharashtra
Issue
The prosecution alleged that the victim, Mathura was raped by Ganpat and Tukaram in Desai Ganj police station.
Facts of the Case
An orphan tribal girl named Mathura, aged between 14-16 years, lived with her sibling, Gama. Mathura worked as a labourer at Nunshi’s place. During the course of her employment, she came in contact with Nushi’s sister’s son, Ashok. Their contact developed into a sexual relationship with time and hence, they chose to marry.
Gama was against such connection and on 26th March 1972, he filed a report in Desai Ganj Police Station alleging that Nunshi and Ashok had kidnapped Mathura. Head Constable Baburao called Nunshi, Ashok, Mathura and Gama to the police station and the assertion of the couple were recorded at 9 p.m. Subsequent to recording the assertion Baburao left for his house and asked others to leave as well but told Gama to bring a duplicate of the entry regarding the birth date of Mathura. Around 10:30 p.m when they were about to exit the police station, constable Ganpat and Tukaram told Mathura to remain there and everyone to leave. The events that happened later were horrifying and despicable.
While Gama, Nunshi and Ashok were waiting outside, Ganpat locked the door, turned the lights off and took Mathura to the washroom and raped her by taking a gander at her private parts with a torch. Then again took her to the backside of the police station and raped her again. Tukaram additionally tried to rape her but he was highly intoxicated to do such act. He also sexually assaulted her by touching her private parts. Nushi, Gama and Ashok grew suspicious and called out her name however didn’t get any response. Calling her name attracted the crowd outside. At last, when the horrific deed was done and constables had fled, Mathura came out of the police station. She narrated the entire incident to those three. Thereafter, a complaint was lodged.
Clinical Examination Revelation
Mathura was examined by Dr Kamal Shastrakar on 27th March 1972 at 8 p.m. and found no injury on her body and there wasn’t any indication of sexual intercourse. The medical examiner didn’t find any traces of semen anywhere on her body not even in the private region except her garments. Her hymen disclosed old ruptures. The vagina conceded two fingers easily. Mathura’s age was assessed to be between 14-16 years.
Charged Sections of the Indian Penal Code, 1860
The allegations were made under the Section 354, 375 and 376.
The definition of rape under Section 375 was exceptionally limited at that time:
“A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions-
- Against her will
- Without her consent
- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
- With or without her consent, when she is under 16 years of age.“[3]
Questions Before the Court of Law
- Was “Consent for Sexual Intercourse” really given by Mathura?
- How old was the victim?
- Whether rape really happened or not?
- Whether both the accused were liable under Sections 354 and 376 of the Indian Penal Code?
- Whether such crime committed by a cop amounts to rape and can be considered as forceful intercourse?
Sessions Court’s Judgment
The Sessions Court’s Judge discharged both the blamed. He believed that rape didn’t happen but the intercourse was “consensual”. From the clinical reports, it was crystal clear that she was acclimated to sexual intercourse. The judge further dismissed Mathura as “a shocking liar” whose declaration “is riddled with falsehood and improbabilities”. Finding out about her sexual encounter with both the accused would have driven Ashok mad and therefore, she wanted to sound virtuous before her lover. Consequently concocted the whole story. Likewise, the evidence determining Mathura’s age was inadequate.
High Court’s Judgment
The Bombay High Court reversed the judgment given by Sessions Court by demarcating passive submission from consent. The High Court stated, “Mere passive or helpless surrender of the body and its resignation to the other’s lust induced by threats or fear cannot be equated with the desire or will”. Both the accused were alluded to as “gentlemen” who were strangers to her, so it is highly impossible for her to have sexual intercourse with them to fulfil her sexual cravings when she and her brother were involved in a complaint lodged in that same police station. The accused were in a position of authority and any resistance could have been harmful to her or her sibling. This was a clear case of passive submission under dread. Both the accused limited her to the police station. The Court additionally mentioned that the absence of semen was because the assessment was conducted after 20 hours and it is presumably for her to have taken a shower in the meantime.
Supreme Court’s Judgment
The Supreme Court, in 1978, reversed the Bombay High Court’s judgment and acquitted both the accused. The Apex Court came to the conclusion that there were no imprints or injury on Mathura’s body and the absence of such indicates that the intercourse was peaceful and the story of resistance was bogus. The Mathura’s mistake to point out the exact appellant who had raped her further worked as a neutralizer because the Court stated that if she could go against her initial testimony by changing the accused from Tukaram to Ganpat, it was possible that she had lied about everything else. The whole incident was too fanciful and can’t happen at all.
Principle of Natural Justice
This expression in English law talks about fairness in a procedure. The three basic postulations are:
- Rule Against Bias (Nemo Judex in causa sua): This rule emphasises on the unbiased decisions taken by the panel of experts. The decisions made by them should be free from prejudices.
- Rule of Fair Hearing (Audi alter partem): Every party involved in the case will have a right to be heard and will be given a fair chance to defend herself/himself.
- Reasoned Decisions: The decision taken by the experts should have reasonable grounds and be unambiguous.
Were The Principles of Natural Justice Followed?
Mathura’s excursion to seek justice ended in disappointment. The judgments pronounced by the Courts show what kind of outlook people had and still have in this era.
Women having any kind of relationship out of matrimony has always put a question mark on her character. The expression “habitual to sex” was used so many times to prove the innocence of the accused. Regardless of the fact that a woman was habitual to sex that doesn’t mean she couldn’t be raped. No one bothered to think that why a woman would have sex between the time frame the complaint was filed for her kidnapping and her medical examination. In what capacity can her sexual cravings be solid to the point that she forgot that her husband and her brother were right outside the police station and can come looking for her? If the evidence to prove her age was insufficient then why a further investigation wasn’t conducted despite the fact that the medical examiner confirmed her age was between 14 and 16. Why did both the accused ask her not to leave the police station? Although, High Court convicted the accused of rape but using the term “gentlemen” was inappropriate.
If the sexual intercourse was peaceful and with consent, why would someone want to do it in the washroom? Mathura could have chosen some other safe place where no one would have caught her.
Not being able to shout or resist doesn’t prove that women wanted to have sex. When a crime like rape happens to a person, he/she goes into a shock. Everybody reacts differently to the incidents. Even if she did cry out for help, no one could have heard her. She was taken to the washroom and then raped. The accused were powerful and had authority over her. The intoxication of a constable at the time of duty wasn’t punishable? She must have faced the problem in identification because the lights were off. The question here is what if the woman was verbally and physically handicap? What judgment they would have given then?
Rather than being fair and giving a reasonable decision, the Court assassinated the victim’s character and acquitted the accused. The judges mocked the entire principle of natural justice and supported the toxic patriarchy.
Case To Be Considered Before Understanding the Aftermath of the Judgement
In NANDINI SATPATHY V. P.L DANI & ANR,[4] the Apex Court condemned the practice of calling women to police stations in gross violation of Section 160(1) of the Criminal Procedure Code. It was done to ensure the safety of female witnesses by immunizing them from being called upon at any such place other than their house.
And here Mathura was raped in the police station. So, there is so much difference in the approaches.
After Effects of the Judgement
Mathura’s rape case sparked the anger amongst people in the society. The modern-day jurist Dr Upendra Bakshi was shocked by the Supreme Court’s judgment. Thanks to his open letter to the Apex Court the transformations took place in the criminal laws related to women. Even he mentioned the Nandini Satpathy Case in his letter and also he highlighted that the unfortunate troublesome situation of so many Mathuras in India is as important as the KESAVANANDA BHARATI V. STATE OF KERALA, 1973[5] where the validity of restriction on the right to property as a fundamental right was challenged and the largest bench was formed in the Indian legal history. There aren’t any rights that have been granted to these aggrieved women when they are violated within the police station.
The Criminal Law (Amendment) Act was passed in 1983 on account of which changes were made in Section 114(A) of the Indian Evidence Act, expressing that if the victim doesn’t consent to sexual intercourse then the Court would assume that she didn’t agree.
Custodial rape was made an offence and was culpable with the detainment of 7 years or more under Section 376 of Indian Penal Code. The weight of proofing the allegations moved from the victim to the offender, once sexual intercourse is established. The publication of the victim’s identity was banned and it was also held that rape trials should be conducted under the cameras.
Current Scenario
Even in today’s so-called modern era, bizarre judgments or orders have been passed by the Courts. A place where people come to seek justice underestimates women’s rights. On July 15, 2020, a Civil Court in Bihar sent a gang-rape victim to jail just because she had an emotional outburst and nervous breakdown during the course of court proceedings[6]. In August, a judge of Madhya Pradesh High Court ordered an accused of sexual assault to get the victim to tie him a rakhi as a state of bail request[7]. What kind of world are we living in where the sex offenders are given privileges and victims are enduring more pain.
Conclusion
There have been so many reformations in the past years yet rapes are increasing day by day. There’s a need for improving women’s safety but not by confining her within the four walls. The major change can be brought through education and teaching to respect the opposite gender from the very beginning.
References:
[1] India.com Viral News Desk, Editor- Ritu Singh, ‘Women Not Capable of Being Left Free or Independent’: Yogi Adityanath’s Old ‘Anti-Women’ Article Resurfaces Amid Gangrape Outrage, (October 1, 2020, 4:36 PM IST), https://www.india.com/viral/women-not-capable-of-being-left-free-or-independent-yogi-adityanaths-old-anti-women-article-resurfaces-amid-outrage-over-horrific-up-gangrapes-4158843/
[2] AIR 1979 SC 185
[3] Soumya Singh Chauhan, Section 375: Analysis of Rape Provisions Relating to Rape, (February 14, 2015), https://www.lawctopus.com/academike/section-375-analysis-of-provisions-relating-to-rape/
[4] 1978 AIR 1025, 1978 SCC(2) 424, 1978 SCR (3) 608, https://lawbhoomi.com/case-brief-nandini-satpathy-v-p-l-dani-and-anr/
[5] Writ Petition (Civil) 135 of 1970, https://indiankanoon.org/doc/257876/
[6] Revanta Solanki and Shivkrit Rai, Judiciary’s Response To Rape Cases Suffers From Colonial Hangover, (July 30, 2020), https://www.theleaflet.in/judiciarys-response-to-rape-cases-suffers-from-colonial-hangover/#
[7] Megha Katheria, Is Tying a Rakhi or Marrying the Sexual Assaulter Justice for the Victim?, (November 15, 2020), https://www.theleaflet.in/is-tying-a-rakhi-or-marrying-the-sexual-assaulter-justice-for-the-victim/#
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