(On the 4th anniversary of the Nirbhaya case, we are still a long way away from creating a safe space for women. A set of recent incidents involving gruesome rapes of women across the country has yet again raised several questions about Indian society and judiciary. We at The Quint believe that a rape survivor’s life doesn’t end when she is raped. And that even if our institutions - law, the judiciary, the hospitals - are failing a rape survivor, we as a society need to step up. And keep the fight going. We are publishing this article originally published on 23 September 2016 from The Quint’s archives as part of our #FightingRape campaign.)
In a courtroom, it usually is the duty of a lawyer to present the best form of argument to defend his or her client.
But does asking a rape survivor to reenact the posture in which she was raped constitute an argument?
In 2008, a trial court judge in Rajasthan allowed a defence lawyer to ask a rape survivor to do precisely that. Subsequently, the Rajasthan High Court severely criticised the trial court judge’s conduct.
A rape survivor being humiliated or forced to relive the trauma during cross-examination in a rape trial is common; especially as we move away from Supreme Court in Delhi to trial courts in smaller towns.
If judicial history is to be believed, there are various judgments by the Supreme Court and High Court which ensure that the humiliations shouldn’t happen. But there is a gap between written and practiced law, widened by irregular procedures.
What does ‘Character’ Have to Do With Rape?
In a rape trial, there are usually two questions which need to be answered. Did sexual intercourse take place between the accused and the rape survivor? And was the sexual intercourse non-consensual?
To answer the first question, most defence lawyers argue that the rape survivor is ‘habituated’ to sex. The logic being, if she has given sexual consent earlier, then she must have given it in this particular instance as well.
In 2004, during a trial in the Andhra Pradesh High Court, the medical certificate proved the presence of sperm in the vagina of a rape survivor and confirmed that she was habituated to sexual intercourse. She was five months pregnant at the time of the rape. The court reasoned that since she didn’t resist the rape, she must have consented to sexual intercourse.
Usually, the defence lawyer uses the ‘habituated to sex’ argument in a rape trial. In such a case, the prosecution counsel should argue using provisions of law in the various judgments.Jyotika Kalra, Advocate-on-record, Supreme Court
Interestingly, character assassination of a rape survivor was prohibited in 1983. In 2002, a proviso was added to Section 146 of the The Indian Evidence (Amendment) Act, 2002 to state that, “It shall not be permissible to put questions in the cross- examination of the prosecutrix as to her general immoral character.” When the rape laws were amended in 2013, character evidence was made irrelevant to decide consent in a rape trial.
Clearly, we have enough amendments in law. But why is it that even now rape survivors have to undergo humiliation in court?
Why Judges Need to Go Back to School
When I had gone to Muzaffarnagar, I had to move an application for an in-camera trial. The judge asked me what is an in-camera trial? I had to ask them to refrain from using the name of the rape survivor. Far from the cities like Delhi, there are courts which are not aware of the changes in law.Vrinda Grover, Advocate, Supreme Court
In-camera trials are not new. When the criminal law was amended in 1983, following the Mathura rape case, there were a slew of changes which were introduced. These included stating that the burden of proof is on the accused, not disclosing the identity of the rape survivor and a separate category for custodial rape.
Even later, according to the Supreme Court judgment in 1995, there are provisions which provide free legal assistance to the survivor by the government.
Judicial reform in India has for too long meant changes in law, rather than the procedural aspect of the law. Reform in judicial procedure needs to be implemented in all courts in India, not just the Supreme Court.
In the current judicial system, it is the responsibility of the District Judge and the High Court to ensure sensitisation and training for lawyers. Every state has a judicial academy, apart from the National Judicial Academy. Maybe it is time to make training workshops for judges a little more stringent?
When Media Becomes A Courtroom
Media trials are also selective in nature. They focus on cases which are set in a more urban context. For instance, Soni Sori’s case didn’t get people’s attention.Smriti Minocha, Human Rights Law Network
Trials are not only conducted in the courtroom. ‘Media trials’ at the outset, seems like an oxymoron. How can an institution which doesn’t have any legal mandate conduct a trial?
When Jisha, a law student in Kerala was raped and murdered in 2016, the incident was dissected in media. Gruesome details of her rape, including how many times she was stabbed and where she was stabbed, were everywhere; whether on Twitter, Facebook, TV channels and newspapers.
Even after her death, she was being humiliated and aspersions were being cast on her character. Similarly, ‘high-profile’ cases of rape are under scanner and any slip-up in the court proceedings are reported on judiciously, but what about other rape trials?