Human Rights Fd (1).docx

THE DARK ERA OF HUMAN RIGHTS: A PLIGHT OF RAPE VICTIMS AND NEED FOR GENDER NEUTRAL LAWS

SUBMITTED BY: Sheetal Singh Roll No 123 Section B- X Semester

SUBMITTED TO: MrAbdullah Nasir (ASSISTANT PROFFESSOR, Dr RMLNLU, Lucknow)

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TABLE OF CONTENTS TABLE OF CONTENTS .................................................................................................................... 2 ACKNOWLEDGEMENT .................................................................................................................. 3 INTRODUCTION .............................................................................................................................. 4 HISTORY OF HUMAN RIGHTS...................................................................................................... 5 Human rights of rape victims .......................................................................................................... 5 Fundamental rights ...................................................................................................................... 5 ANALYSIS OF CONTROVERSIAL RAPE CASES ........................................................................ 6 Character of victim .......................................................................................................................... 6 Mathura rape case ........................................................................................................................ 6 Mediation in rape cases - marry the rapist .................................................................................... 10 Delay in filing fir ........................................................................................................................... 12 Dildar Singh vs State of Punjab ................................................................................................. 12 CONCLUSION ................................................................................................................................. 14 BIBLIOGRAPHY ............................................................................................................................. 16 BOOKS: ........................................................................................................................................ 16 WEBSITES: .................................................................................................................................. 16

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ACKNOWLEDGEMENT

The success and final outcome of this research paper required a lot of guidance and assistance from our professor & I take this opportunity to thank Abdullah Sir for his continuous support and motivation. He helped us solve our doubts by taking out time from his busy schedules and for all the agility he possess to help us whenever we required his guidance.This has helped understand the subject beyond the class by coming across the prevailing situations in the society.

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INTRODUCTION

Rape has an ancient history like every crime. The first book of the Bible recounted the outraging of the virgin daughter of Jacob, Dinah and then about the revenge that was taken Dinah’s brothers on the offender.1Recently, the public imagination has seized on the issue of rape with particular fervor and has nourished-and been nourished by-great media interest in the subject, ranging from full-length works and collected essays to magazine and newspaper pieces. There were problems such as failed prosecutions or the humiliation of the victim, nevertheless the recognition to sexual violence was a prominent success. However, the satisfaction of legal remedies is also eclipsed by the problems of their very institution: the decoding and use of these laws in a variety of settings raises questions about meanings of violence and sex, agency, and consent. In her landmark article on the cultural construction of sexuality and rape, Christine Helliwell reported a respondent’s statement, "It's only a penis. . . . How can a penis hurt anyone?"2Such statements would only make us wonder about the type of world we live in. S. 375 of the Indian Penal Codedescribes the expression of rape like it is defined in other sexual assault statutes: it is a gender specific description stating that rape is a “man’s sexual intercourse” with a woman “against her will” and “without her consent”. Moreover, it is a horrendous and heinous act if it is done to a woman who is pregnant, below age of twelve, and also in cases of gang rape and custodial rape. The statistics given by the INIDAN NATIONAL CRIME RECORDS BUREAU in 1971 specifies the number of reported rapes which was 2,487 and it was the first year for when the data was gathered. This has only increased to 10,068 in 1990 and to 18,233 in 2004. There are still three-quarters of rapes which are not reported.3

Genesis 34. “After pretending to accept the man's offer to marry his victim, Jacob's family persuaded the attacker and his male cohorts to undergo ritual circumcision. While the gentiles were still in weakened condition from the operation, the sons slew them and appropriated their women and livestock.” 2 Christine Helliwell, “It's Only a Penis': Rape, Feminism, and Difference”, Sign 25, no. 3(2000), 789-816. 3 ShefaleeVasudev and MethilRenuka, Sexual Crimes: Rape., India Today, 9 Sept. 2002, 48. 1

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Lest we drown in the seeming ubiquity of rape as violent power in the above cases, an example of embodied resistance comes from the women of Kasturba Nagar. During the courtroom remand of Akku Yadav, who had terrorized the town with his gang by raping numerous girls and women, maiming and murdering, extorting money, and walking on bail after each arrest, these ordinary slum-dwellers and daily wage-earners stormed the courtroom, attacked, castrated, and killed him. Thewomendeclaredtheiracta"freedomstruggle,"as"socialjustice"ratherthan"murder,"and

replied

to those who were horrified by the vigilantism that "there is no justice for the poor. What if this had happened to a minister's wife or daughter? So, we decided to do it ourselves."4 The crimes against women have increased drastically and when the court rooms do not provide us justice, the citizens try to be the Justicia.

HISTORY OF HUMAN RIGHTS The history of Human Rights Jurisprudence is represented by an individual’s aspiration to live in an environment where one is treated with equity, equality and justice. The path of further progression is shown when one struggles against unjust laws and urges for justice either for oneself, society or the nation leading to realization of human unity ad human dignity. Since time immemorial men have subjected their fellow men to atrocities and brought upon them unending miseries. D.P. Madan owing to such plight of the inhuman wrongs to observe the maxim of history which says, "There is no right without a wrong"; whereas in law there is maxim which says "There is no right without a remedy". This is to say that human rights emanate from human wrongs.5

Human rights of rape victims

Fundamental rights As per the Indian Constitution an individual is seen as the as the center stage of all progress and development. The provisions of the Constitution give regard to an individual’s moral and spiritual development. It keeps the individual at a pedestal of the constitutional structure and treats him as the steward of the constitution rather than the state and focuses on the development of fullest of

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Akku Yadav available at https://en.wikipedia.org/wiki/Akku_Yadav. Madan, D. P., 1986

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their potential. 6 The preamble clarifies and highlights the intention of the Constitution for securing every citizen socially and economically and by providing political justice, and equality of status and opportunity, and for promoting fraternity asserting the dignity of the pillars of democracy with objectives to protect the citizens and provide with certain basic human rights which are unassailable and enforceable against the State in a Court of law. The Directive Principles of State Policy also emphasize the dignity of the individual and the worth of the human person by obligating the State for taking measures with the objective of securing and protecting social order for social, economic and political justice to prevail in all the institutions of Nation.

ANALYSIS OF CONTROVERSIAL RAPE CASES

Character of victim

If the victim have had past sexual experiences or is promiscuous in her behavior she is entitled to refuse and not have sexual intercourse with anyone and everyone just because she is not a “vulnerable object” or prey for being assaulted sexually. Mathura rape case The 1979 Mathura case is associated with the Indian feminist mobilization around the questions of rape. In this case a fourteen year old girl was subjected to rape by two police constables. The Supreme Court “deemed” this to be consensual on the ground that there was no visible injury on her or some audible protest on the part of the victim. Mathura was a young dalit orphan tribal girl. She lived with one of her two brothers. A man named Ashok approached her for marriage but her brother refused the proposal and did not agree to their union. The Brother even went to the police station to lodge a complaint against the man and his family that they had kidnapped his little sister Mathura. The police authority brought 6

Chalmers, Dalzell; Asquith, Cyril Outlines of Constitutional Law (1936) available at https://heinonline.org/HOL/Page?public=true&handle=hein.cow/outlicon0001&div=49&start_page=441&collection=c ow&set_as_cursor=0&men_tab=srchresults.

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Ashok and his family along with Mathura to the police station. After general investigation the man and the family members were let go. But before they left the police constables asked Mathura to stay back as her relatives were asked to stay outside. Mathura was then raped by both those police constables. The case came for hearing in the Sessions court. The judgment returned found the defendants not guilty. The police contended that Mathura was a “habituated to sexual intercourse” and that her consent was there. There was no proof of rape and the circumstances indicated that there was only sexual intercourse. An appeal was made in the Bombay High Court and the judgment of the Sessions Court was set aside. Both the accused were sentenced to one and five years’ of imprisonment. The Supreme Court in 1979, however reversed the High Court verdict in Tukaram vs. State of Maharashtra]7and the two constables were acquitted again. It was held by the Supreme Court that Mathura had not raised any protest against the act and that there were no visible injury on any person suggesting otherwise and therefore no rape. The judge further said "Because she was used to sex, she might have incited the cops (they were drunk on duty) to have intercourse with her.” A huge public criticism of the judiciary followed after this and the issue of inadequacy of the rape law was highlighted in numerous judgments of the Supreme Court. Owing to this the legislature initiated to amend the rape laws and made them more realistic.

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For example, Section 376B to 376D were inserted in the IPC for introduction of new category i.e. Custodial Rape.

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To prohibit the disclosure of the identity of the rape victims under sections 376, 376A to 376D, Section 228A was inserted.

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Section 114A was inserted in The Evidence Act, 1872 which draws a “conclusive presumption” as there was no consent on the part of the woman in a trial of rape under Sec 376 (2) clauses (a) to (g). This way the burden of proof shifts on the accused to prove his innocence. PC shifting the burden of proof of innocence on the accused.

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Tukaram v. State of Maharashtra, A.I.R 1979 S.C. 189

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The Supreme Court has in State of Maharashtra v. Madhukar N. Mardikar8gave the verdict “…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 thrownoverboard.” The Supreme Court in State of Punjab vs. Gurmit Singh9, recommended the lower judiciary to not describe the rape victim to be of loose character even if it was alleged that she is of easy virtue and is habituated to sex. When we judge this case in the context of how it is realistic we realize that the judiciary and the criminal system finds it difficult to recognize that the justice system for the rape victims is biased against them, it is not a requirement that one should ignore the reality that convictions are difficult to obtain when consent is the issue. But that is not the same in all rape cases. The defendant tells a different story than the victim and both the stories should be corroborated with enough evidence. In arguing that the criminal law does not take sexual autonomy seriously enough, an analogy has been deciphered, the “parable” of a surgeon who proceeds without the patient’s affirmative permission to the surgery. The surgeon has carefully explained the risks and benefits of the surgery, and tells the patient that all he has to do is say “no” to prevent the surgery. When the patient continues to hesitate, the surgeon becomes impatient, “starts the anesthesia and just does it.” As this is obviously not consent to surgery, and a contrast can be drawn when a man has sex without the permission of a woman.10 So

in

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judgment

that

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given

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erroneous

in

the

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it

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shewasinthepolicestationinthe“deadhourof night”. The court failed to interpret that a “helpless resignation in the face of inevitable compulsion or the passive giving in is no consent”. It was surprising to find that the Supreme Court only focused on the third component of Section 375 of the Indian Penal Code, which applies when the woman’s consent is taken, when “her

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State of Maharashtra v. Madhukar N. Mardika, A.I.R 1991 S.C. 207. State of Punjab v. Gurmit Singh, 1996 (2) S.C.C. 384. 10 George C. Thomas, Realism About Rape Law: A Comment on 'Redefining Rape' III Source, Buffalo Criminal Law Review, Vol. 3, No. 2 (January 2000), pp. 527-555. 9

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consent has been obtained by putting her in fear of death or of hurt”.11 However the Supreme Court did not consider the second component of Section 375 when rape occurs without her consent. Tekchand J. has pointed “there is a clear difference in law, and common sense, between ‘submission’ and ‘consent’. Consent involves submission; but the converse is not necessarily true and a mere fact of submission doesn’t mean consent. Nor is absence of resistance necessarily indicative ofconsent.”12 Hence, when the Rape laws were amended under Section 375, Explanation 2, IPC it specified that consent should be given for a ‘specific act’. This means that mere holding of hands doesn’t mean that the girl has consented to rape. She ought to have consented for a specific act. The facts make it appear that there was submission on the part of Mathura but no findings were made on the element of consent. Thus, as the judgment came out of the court room the accused was acquitted and this was the law in that particular case, to whatever extent we think that there was a miscarriage of justice, it was the law. In the decision in NandiniSatpathy v. Dani13, the Supreme Court reprimanded the practice of making victim to come to the police stations as gross violation of Section 160(1) of CrPC which states that the woman shall not be made to attend the police investigation at any other place apart from her own residence. This observation made is it any the less relevant to situations of ‘rape’ or, as the Court wishes to put it, ‘intercourse’ in a police station. The laws that are already in force are not applied by the judges when giving a decision and when a decision like Tukaram is delivered which is flawed from its very root creates a huge outburst amongst the people, why is it only then that the laws are amended. Why is it that the laws that come out of the court rooms are not always just and fair? The faith of the victims in the judiciary is misbalanced whenever judgments are pronounced whereby the interests of the people are not kept in mind.

Thus, the circumstantial evidences led to the acquittal of the accused police constables by the Supreme Court as it was prima facie reasonable, firstly there was no passive submission and 11

Musauddin Ahmed v. State of Assam, A.I.R 2010 S.C. 3813. Rao Harnarain Singh Sheoji Singh v. State A.I.R 1958 Punj 123. 13 NandiniSathpaty v Dani 1978 (2) S.C.C. 424. 12

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secondly the nature of the victim was not credible. Such prima facie inferences drawn by the Supreme Court for ruling on such a heinous and horrendous crime is not expected of it by the common people who see judiciary as the safeguards of their rights.

Mediation in rape cases - marry the rapist

In 2014, the Additional Sessions Judge, Mahila Court, Cuddalore gave a verdict of sentencing V. Mohan to seven years imprisonment for committing rape of a 15-year-old minor. The victim when the verdict came was 22-years-old who got pregnant after the incident and had a six year old daughter.

Mohan filed appeal before Madras High Court for seeking suspension of the sentence and to entitle him bail. Justice P.Devadas directed Mohan and the victim to undergo mediation proceedings at the Mediation Centre. The order reads “Vimla and her close relatives and the convicted criminal and his close relatives shall be made to participate in the mediation process.”It is blatently coercing the rape victim to sit across the same table as her perpetrator who caused her trauma at the age of just 15 year years for life and that too to discuss marriage. The concept of consent is of critical importance and there is clear distinction between choice and coercion.14 The order addressed the victim as "nobody's wife", "an unwed mother" and it is also said that the child is the "main victim" who will be associated to a "social stigma" and the only solution for it is that this is a "fit case for mediation." Going by the perverted logic of the court’s order the rapist of the woman who had committed a heinous crime would now be considered as the savior of the woman he had raped and the curse on her child will be removed and there would be happy ending of her story. Therefore as a savior he is entitled to get himself bail and in as per the order "be allowed to participate in the mediation as a free man and vent his feelings, open his mind and Supreme Court say “no to compromise, mediation in rapecases” available at http://indianexpress.com/article/india/india-others/no-compromise-in-rape-case-over-wedlock-rules-supremecourt/#sthash.QX8EWJlM.dpuf http://indianexpress.com/article/india/india-others/no-compromise-in-rape-case- overwedlock-rules-supreme-court/. 14

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moorings". This is just an analogy, wherein the rapists in Bhanwari Devi’s case15 provided the victim with compensation so that she will withdraw the case against them. Her reply was: "Tell our village elders you raped me, restore my dignity." It was refused by the rapists. When a rape victim would not even want compensation from the rapist why would she prefer spending her entire life with a person who forcibly raped her? Later, due to other legal grounds mentioned below the order had to be struck down: Firstly, Alternative Dispute Resolution is mostly the remedy for commercial cases and cases which are of civil nature. It should not be used in the cases pertaining to criminal violence, leave alone the cases against the dignity if a woman. Secondly, the High Court or the Supreme Court have got no right to coerce a woman to choose to marry her rapist in any circumstance and reduce her trauma to a trivial matter. Meanwhile, the Supreme Court in the State Of Madhya Pradesh v. Madanlal14said, “When a human frame is defiled, the ‘purest treasure’, is lost. Dignity of a woman is a part of her nonperishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters themost.”

In the rape culture today there is a tradition of blaming the victim for what had happened to her. There is a strong struggle the women have to undergo for fighting against their rights. As there are instances when in this culture the crime committed against her is justified and thereby reducing it as a trivial matter. But we can see another angle to it as well which is equally disruptive to the women’s dignity that there is no life forward for a rape victim beyond the rape, that a rape victim “embodies the living dead”, that there is always a social stigma attached to it that people won’t even talk about it in public or in front of their family members. And to get rid of the social stigma the victim has to compromise with the perpetrator of the crime against her because that will be a lesser price to pay than her life. Such horrendous thinking is reflected in the judgment above.

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Bhanwari Devi v. State of Rajasthan, 1997 (1) W.L.C. 42

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Delay in filing fir Dildar Singh vs State of Punjab16

In this case the school teacher of a minor girl raped her while she was attending the school. The girl was so scared that she could not tell this to anyone. The prosecutrix mother later on found out that her daughter was pregnant when she complained of pain in her abdomen. Her mother enquired about how the pregnancy could take place and on pushing the girl revealed the incident that had taken place. The father of the daughter was informed as soon as possible who was out of the village that time. After the father returned he filed a complaint regarding the same in the police station. The appellant submitted that there was a considerable delay in the filing of the FIR and that in such case the case should not be tried. The appellant also claimed that no such complaint on these lines was ever made against him by the girl or any other relative. The Supreme Court observed that in many previous judgments there have been scenarios where the prosecutrix have delayed in filing a complaint or an FIR and the same can have many various reasons behind it. Few of the reasons could be the “reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family”. In a society like ours the girl is reluctant to complaint as the questions against her chastity would be raised and it can also lead to her being ostracized from the society or she can be looked down upon.

Most of the times it is the trauma the victim faces which does not allow her to even admit that such an offence had been committed against her. The society leaves no stone unturned in embarrassing the victim who had no fault at her part. At times she is also trying to avoid any controversy her family might be fearing on the part of the perpetrators as they could be inducing them and compelling them not to go public with the incident. Due to above mentioned reasons the delay in lodging an FIR shall not be taken into account as a 16

Dildar Singh vs State of Punjab 2006 (8) SCALE 370

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fact that determines that no such incident ever took place and thereby the case of the prosecution shall stand and not be discarded on these grounds. The Supreme Court after taking into account facts and circumstances of the case held that the reasoning that there was delay in filing FIR would not be considered if there is satisfactory explanation for the same. The appellant had later plead for mitigation of the sentence as there was passage of time and that he has a family to look after to. The court held that as a teacher he was supposed to teach and build a child’s character and committing such heinous offence on being at a position of a teacher there is no reason to reduce or mitigate the sentence against him.

Gender Neutrality in Rape Laws The Law Commission of India in its 172nd report, while suggesting sweeping reforms in the rape laws has recommended that the rape law should be gender neutral. Underlying this recommendation is a presumption that, through a stroke of a pen, the offence of rape will be desexualised and the stigma attached to the offence will vanish. By rewriting a sexual crime located in a phalocentric culture. The social norms and values of a predominantly heterosexual society will automatically change. The unique character of the offence of sexual assault and its effects upon the lives of women and children and violation of their fundamental principles of human rights was specifically set.

Through the usage of the term 'person an element of gender neutrality seem to have cropped in, specifically to include the violation of male children. But despite this, it did not relocate the offence. Beyond the boundaries of aggressive male sexuality. The bill seemed to indicate that an adult victim of sexual assault is prima- rily a woman and suggested gender spe- cific procedural reforms. To give one example, it stipulated that the statement of a victim should be recorded only by a woman police officer. The bill advocated a general shift in onus of proof in all cases of sexual assault and specifically barred the reliance upon the previous sexual history of the victim in a rape trial. It also contained suggestions to prevent the traumatisation of the minor witnesses during cross-examinations. These procedural changes were meant to renderthe ordeal ofa rape trial, more humane. Although the bill invoked some debate, nothing further came out of it and it lay dormant for almost a decade.

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CONCLUSION When we look at different types of crimes which are committed against women, they are found to be beyond any religion, caste, social strata. Financial independence of women and educating women is not the only solution to help them fight against the crime committed towards them, especially with crimes like rape which is heinous and obnoxious in nature and also the social stigma which is attached to it. Poor implementation of Government Policies, Patriarchy, Women are not aware about their rights, not much time given to them by their families are some of the reasons because of which crime against women takes place. In the rape culture today there is a tradition of blaming the victim for what had happened to her. Rape is a crime, in which the entire life of the victim is ruined by a single incident. There is a strong struggle the women have to undergo for fighting against their rights. As there are instances when in this culture the crime committed against her is justified and thereby reducing it as a trivial matter. But we can see another angle to it as well which is equally disruptive to the women’s dignity that there is no life forward for a rape victim beyond the rape that a rape victim “embodies the living dead”, that there is always a social stigma attached to it that people won’t even talk about it in public or in front of their family members. And to get rid of the social stigma the victim has to compromise with the perpetrator of the crime against her because that will be a lesser price to pay than her life. All this highlights the incapability of the society to save women who because of several personal reasons are incapable to protect themselves because it is not easy for them to be vocal about the crime and pain which they have gone through because of the social stigma which is attached with that particular crime. Therefore, rape laws provides a sexist impression should be abolished as this would allow more victims to file their cases fearlessly, and also this would be helpful for the prosecutors in order to get conviction of the offender. In conclusion, though the move to re- form rape laws is in the right direction and is long overdue, unless it is fine tuned to the specific needs of the concerned segments, its aspirations will remain at the level of rhetoric at best or result in misery and humiliation at worst. 14

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BIBLIOGRAPHY

BOOKS:

1. K.N.C.Pillai,General Principles of Criminal Law, 2nd Edn., Eastern Book Company, 2005. 2. Ratanlal and DhirajLal, Indian Penal Code, 30th Edn.,Wadhva and Company, Nagpur, 2007.

WEBSITES:

1. http://www.legalserviceindia.com/articles/stel.htm. 2. https://www.youtube.com/watch?v=YeH_ZQskDd4 3. http://indiankanoon.org/doc/1092711/ 4. http://www.onelbriefs.com/cases/crim/rusk_state.htm

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