The Punjab and Haryana High Court recently gave an astounding reason to grant bail to three students of O.P. Jindal Global University who were convicted of sexually assaulting a junior - "possible promiscuity of rape survivor". The three assaulted the girl for two years after blackmailing her into submission with her nude pictures. The bail order came on a petition challenging the judgment of a Sonipat Court, which in May 2015 had awarded two of them 20 years' jail term and ordered the third to undergo seven imprisonment. The trial court scanned the evidence and did not find the rape survivor 'promiscuous'. The order said, "The WhatsApp chats running into pages are so abusive and vulgar that the extracts of the same cannot be explained and put into the judgement and what can only be concluded through the WhatsApp chats is that the prosecutrix (survivor) was totally under the control and dominance of the accused, Hardik".
According to the trial judge, the messages showed that the girl, under duress, acted according to Hardik's wishes and continued to share nude pictures with him. The trial court was shown evidence that he forced the girl to purchase sex toys and use it while chatting with him over skype. If the girl's 'promiscuity' was the reason for her sexual assault, why did the High Court direct the three men to undergo psychiatric treatment at AIIMS and get cured of "their behavioural aberration" and "voyeuristic tendencies". More surprisingly, the High Court asked them to pool Rs. 10 lakh and pay the survivor.
The High Court's order is legally untenable. On the one hand it found that the men had serious behavioural problems which needed medical treatment and they were guilty enough to be liable to pay Rs. 10 lakh to the girl, while on the other hand, it pinned half the blame on the survivor by saying "a careful examination of her statement again offers an alternative conclusion of misadventure stemming from a promiscuous attitude and voyeuristic mind". The High Court's bail order reflected the Supreme Court's outrageous approach recorded in its 15th September, 1978, judgment in Mathura case [1979 (1) SCR 810]. The Supreme Court was hearing an appeal by two policemen convicted by Bombay High Court for sexually assaulting minor girl Mathura, who was brought to the police station on a complaint lodged by her relatives after she eloped with her lover.
The Supreme Court acquitted the police-men just because Mathura's medical examination indicated that she was "habituated to sexual intercourse". It also underlined the evidence that she had not raised alarm while being sexually assaulted by the police-men inside the police station. So, should men get away if they sexually assaulted a woman who is used to intercourse and if she does not raise an alarm out of shock? Two years later, the Supreme Court did a course correction through a judgement authored by Justice Krishna Iyer in Rafiq v. State of Uttar Pradesh [1981 (1) SCR 402]. He said, "When rapists are revelling in their promiscuous pursuits and half of humankind - womankind - is protesting against its hapless lot, when no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, we cannot cling to a fossil formula and insist on corroborative testimony, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable".
A decade later, the Supreme Court laid down the golden rule - men do not have a right to violate even a prostitute, and any attempt to indulge in sex without the woman's consent would constitute rape [State of Maharashtra v. Madhukar Narayan Mardikar 1991 (1) SCC 57]. It had said, "The un-chastity of a woman does not make her open to any and every person to violate her person against her wish. She is equally entitled to protection of law. Therefore, merely because she is of easy virtue, her evidence cannot be thrown out". Strangely, two decades later, the Punjab and Haryana High Court relied on "possible promiscuity" of the girl to release the rape convicts on bail during pendency of appeal against conviction.
A judge's lack of sensitivity in rape cases has the potential to suffocate a woman already devastated by the sexual assault. Not only in India, but across the world, such insensitivity had dented the advancement of jurisprudence in gender justice. In 2007, Oxford County Court judge Julian Hall doubted a ten year old girl's age and blamed her provocative sense of dressing to award a friendly nine-month prison term to the man who violated her. Did it matter how a 10-year-old dresses or how old she appears? Hall probably subscribed to the mindset of another Judge, Bertrand Richards of Ipswich Crown Court, who in 1982 had created a sensation by his judgment in another rape case. A young woman on a lonely stretch took a lift from a passing car. The young man took advantage of the situation and raped her. Richards convicted him but let him off with a fine of 2,000 pounds saying the girl was guilty of "contributory negligence" by knowingly taking the risk of hitch-hiking at a late hour on a lonely stretch. Richards could have termed the girl's attempt to get out of the lonely stretch with the help of a Good Samaritan as a provocative gesture inviting the sexual assault and hence the woman was guilty of 'contributory negligence'.
-C.S. Chakravarthy-
----------------------------------------------------------------
No comments:
Post a Comment