Indisputably, the criminal justice system in India is flawed. And when it comes to rape prosecutions nothing can be closer to truth. Rape prosecutions and courtroom trials are heavily impacted by stereotypical notions and rape myths that distort the adjudication process. The question that stands the test of time is whether after decades of the Nirbhaya incident that shook the nation’s conscience leading to fresh rape law reforms in India (after the Mathura rape case), did the unwarranted disparity change in the Indian criminal justice system? The answer is sadly in the negative. 

What leads to double jeopardy for the victim-survivors of rape and sexual assault is that the State too is insensitive to victims’ psycho-sexual care, mental health along with physical injuries so much so that there is always a thoughtless unpremeditated response to rape law reforms. The consequence is the re-victimization of the victim who remains the perpetual outsider to the system of criminal justice administration.

Who is a victim?

In 2008, the Criminal Procedure Code (CrPC) was amended to define a victim as “a person who has suffered any loss or injury caused because of the act or omission for which the accused person has been charged” and the definition included “his or her guardian or legal heir” as well. (‘Surviving Courts Post-Nirbhaya: The (Im) Possibility of Victim’s Manifesto, News Click, 16 December 2023, Source: https://www.newsclick.in/surviving-courts-post-nirbhaya-impossibility-victims-manifesto).In the Jagjeet Singh vs Ashish Mehra case in April 2022, the Supreme Court observed it cannot be contradicted that the rights, especially the human rights of a victim are non-enforceable. It categorically said the victim’s rights cannot be interpreted as constraining like brutum fulmen or as empty threats. 

Absence of victim-centric jurisprudence

The Nirbhaya gang rape case and widespread protests as a consequence of it resulted in calls for major reforms in the criminal justice system in India. The Indian State jumped into action after 16 December 2012 and formed a three-member commission headed by the former Chief Justice of India, Justice J S Verma assigned to review laws on sexual crimes. It directed discontinuation of two-finger tests, introduced new offences like stalking, voyeurism, sexual harassment, acid attack, etc. Apart from educational reforms, it recommended a promise to shift to a victim-centric approach in institutional mechanisms for addressing gender-based violence.

Though the commission recommended dramatic changes in rape laws along with judiciary and police reforms, it had nothing to say about in-camera courtroom trials or the death penalty for rapists. The commission did not inspire much confidence in victims seeking justice. Token gestures like enhancement of punishment or stricter laws showed empirically there was no correlation with better chances of convictions of rape offenders.

Case studies reveal that women’s testimonies face numerous hurdles at different stages of protracted legal processes. For instance, the first gang rape victim who survived the Muzaffarnagar riots of 2013 in Uttar Pradesh narrated threats, intimidation and vilifying cross-examinations she faced in the courtroom. She said, “The trial was protracted and deliberately delayed at every step to exhaust me. I had to approach the Supreme Court on multiple occasions…” (Ist Gang rape conviction in Muzaffarnagar riots: 2 sentenced to 20 years jail. Times of India, 10 May, 2023. Source: https://timesofindia.indiatimes.com/city/agra/1st-gang-rape-conviction-in-muzaffarnagar-riots-2-sentenced-to-20-years-jail/articleshow/100111808.cms)

Phallocentric notions of justice

Victim-blaming attitudes continue along with the procedural rigmarole of the criminal justice system. The observations of courts in trials reflect prejudicial structures of patriarchy in all our social and political systems including the judiciary. Though legal reform recognized the principle of affirmative consent i.e. that consent shall be nothing less than an unambiguous positive ‘yes’ to engage in a sexual act, very often what is pronounced as consent and read as the same emerges from judicial interpretation of virginity, chastity and honour. How can we forget the deeply disturbing remarks by the Punjab and Haryana Courts on 13 September 2017 while giving bail to three men convicted in the Jindal Law School gangrape case? The High Court cited “the victim’s experimentation in sexual encounters”, and “promiscuous attitude and voyeuristic mind” as legal reasoning for granting bail to the convicted trio. Equally disappointing was the 25 September 2017 verdict of the Delhi High Court overturning the trial court conviction of Mahmood Farooqi for rape. The court claimed that a “feeble ‘No’ may mean ‘Yes’.” This puts an unfair and impossible burden on the victim that she not only has to prove her consent but also see to it that her lack of consent is not misunderstood.

The institutional amnesia of courtrooms and judicial interpretation of the ‘ideal victim’ make the trial proceedings a nightmare for women victims. Insensitive remarks by judges, and confronting uncomfortable, repetitive and callous questions by prosecutors are also part of the problem. Scandalous judicial opinions dominate courtroom gender stereotypes. Court-prescribed victim behaviour cropped up in Raja vs State of Karnataka (2016). The Karnataka High Court observed that the victim’s conduct was “not at all consistent with all those of an unwilling, terrified and anguished victim of forcible intercourse.” In another verdict (Rakesh B vs State of Karnataka) observed while granting bail on 22 June 2020 that “The explanation offered by the complainant that after the perpetration of the act, she was tired and fell asleep, is unbecoming of an Indian woman. That is not the way our women react when ravished.” (‘Court’s Misogynistic Rules for Rape Survivors’, Article 14, 29 June, 2020, Source: https://article-14.com/post/the-indian-courts-misogynistic-handbook-for-rape-survivors)

Discriminatory institutional practices 

Stereotypical notions of the victim and the shame associated with being one are predominant in the State’s attitude to rape law reforms. Changes have been sporadic and not paradigm-altering.  And if the victim is differently abled, then the courtrooms are notoriously inaccessible with no language interpreters and knowledgeable investigating officers who fail to communicate empathetically with the victims. This lapse in communication deprives the victim of the right to meaningfully participate in proceedings that have been held by courts to be constitutional guarantees. In some states, trial courts and prosecution insist on pseudo-truth technologies such as narcoanalysis even though they have no evidentiary value. Narco-analysis is the use of drugs on a person to ostensibly induce truth with the help of forensic psychologists. The lack of validity and credibility of narco-analysis is rarely acknowledged.

The right to redress violence is a right of all citizens. It cannot be established with piecemeal measures. Though the recently released Supreme Court Handbook Combatting Gender Stereotypes (announced in August 2023) may be a quantum leap in addressing sexual violence and rape, without the political will to transform mindsets, demands for equal sexual citizenship will remain a far cry let alone judicial reforms. The cavalier attitude and patronizing politics of a patriarchal society need to change to eliminate the social stigma of the victim in rape trials in India. For that, meticulous institutional reforms and sustained training of all stakeholders in the courtroom can be a pragmatic solution.  

(The author is an Assistant Professor, Department of Political Science, Jangipur College. Kalyani University, West Bengal. Views are personal. She can be reached at koyelbasu1979@gmail.com)