For the third time in less than a week (May 2013), the Delhi High Court has decried that rape laws are often misused by women. Justice Kailash Gambhir, Justice G P Mittal and Justice Suresh Kait, in separate judgments, advised courts not to get swayed away by mere allegations of rape, howsoever heinous, but sift through evidence before convicting anyone.
Below is an opinion related to the age old subject of sexual opportunism often being nurtured by the judiciary:
The Hon. Delhi High Court’s maverick judges’ observation (above) is accurate but it does not set a new precedent or overrule the Supreme Court’s outdated opinion that has been ‘hardened into law’ and set a biased standard for prima facie guilt in trial of sexual offences:
In its judicial wisdom, the Hon. Supreme Court declared that ‘’Indian women will not lie about Rape…’’; that a complaint alleging rape is prima facie truthful and a conviction can be based exclusively on the ‘victim’s’ uncorroborated testimony! This effectively stymies any affirmative defense against false allegations of Rape thanks to subjective public perception, trial by media, and PREDISPOSITION OF THE ‘IMPARTIAL’ JUDICIARY – even before an objective determination of victimhood can be made!
In a judgment on rape of a minor (where appeal of the Accused was rightly denied), the Hon Supreme Court in Criminal Appeal No.1798 of 2008 - Wahid Khan vs. State of Madhya Pradesh, opined “…It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom …. “.
But this learned opinion is tangential to numerous real life events including the Hon. Supreme Court’s own conflicting opinion in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat 24 May, 1983 –[Equivalent citations: 1983 AIR 753, 1983 SCR (3) 280], where it recognized that “a woman of the age of majority is found in compromising position, who is likely to make accusations for self preservation … “.
Many other notable false accusations of rape (such as the Delhi HC Judges’ observations - above) frequently pop up in the media: (just Google it).
It is worthwhile to check out the Hon. Supreme Court’s ‘reasoning’ for false accusations of Rape by Indian vs. Western women in Bharwada Bhoginbhai Hirjibhai vs Gujarat supra.
“It is conceivable in the Western Society that a female may level false accusation as regards sexual molestation against a male for several reasons such as:-(1) The female may be a “gold digger' and may well have an economic motive-to extract money by holding out the gun of prosecution or public exposure; (2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by fantasizing or imagining a situation where she is desired, wanted and chased, by males. (3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account; (4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta; (5) She may do so to gain notoriety or publicity or to appease her own ego, or to satisfy her feeling of self-importance in the context of her inferiority complex; (6) She may do so on account of jealousy; (7) She may do so to win sympathy of others; (8)She may do so upon being repulsed. By and large these factors are not relevant to India and the Indian conditions’’. (What sort of myopic bull-s**t is that coming from the Apex Court of the land?!). The SC also graciously mentioned an exception to the above ‘rule’: where “a woman (Indian woman, of course!!!) of the age of majority is found in compromising position, who is likely to make accusations for self preservation and where the ‘probabilities-factor’ is out of tune”. In other words, a good judicial guess would establish innocence or guilt, but a Western complainant of Rape should be viewed with disbelief due to her decadent culture.
Standard Set By Prejudiced Opinion:
Using the preceding highly arbitrary personal opinion as a guide, is it fair to view Western women complaining of rape in India with suspicion because of their “liberal” or mercenary (“gold digger”) characteristics. But, why stop there? Western male visitors to India could also be seen as “liberal” products of the decadent West and likely to promote sexual excesses with Indian women who, per Hon. Supreme Court observations, are cloaked in conservativeness and would not lie. (Bharwada v. Gujarat supra).
BUT TIMES HAVE CHANGED, YOUR HONOR:
Perhaps 41 years ago (i.e., in 1983 – the SC’s quip) when Suttee, Devadasi System, and other abominations against women were discretely practiced, the submissive “Satti Savitri” image of the typical Indian woman may have been maintained, albeit sometimes by restrictive social expectations; whereas, Western women rapidly evolved toward gender equality. But now, in India, with a plethora of judicially anointed gender biased laws available in our ‘aggrieved’ women’s arsenal, the flood gates of opportunism have swung wide open allowing easy ingress to the rightfully aggrieved as well as the resourceful extortionists and the misandrist.
With due respect, it is my humble opinion that that the Hon. Supreme Court’s distinction made in 1983 between the Western and Indian socio-cultural factors prompting false accusations of Rape is subjective, intrinsically discriminatory, antiquated by 40-plus years’ of progressive women empowerment, and contradicted by factual events as well as the Hon. Apex Court’s own conflicting exception cited in Hirjibhai v. State of Gujarat (supra).
It is settled fact that a complainant alleging Rape is a complainant alleging Rape in whichever part of the world the complainant is domiciled – nothing more, and no different. More importantly, the motives, whether factual or ulterior, that prompt such complaints are not Region-specific: they do not mutate from culture to culture or country to country typifying the “Western Identity” or “Eastern Identity” but is homogenous and matched across the board. A Western woman is no less in worth than her Indian counterpart; and no more benign nor sinister in pursuing her intentions.
Gender Biased Wording in Law
There are numerous rulings that state, “A (putative) victim of Rape is generally considered a competent witness under Section 118 of the Indian Evidence Act and “her” testimony stands on par with the testimony of an (alleged) injured victim of physical violence. The same degree of care and caution must attach in the evaluation of “her” evidence. If the court feels satisfied that it can act on the evidence of the Prosecutrix (female), there is no rule of law or practice incorporated in the Evidence Act which requires it to look for corroboration of evidence. If for some reason the court is hesitant to place implicit reliance on the testimony of the Prosecutrix it may look for evidence which may lend assurance to “her” testimony which necessarily depends on the facts and circumstances of each case”. (Emphasis mine).
Particularly the last postulation is gender biased, discriminatory, and unfair upon its face since it leads one to infer that the Hon. Courts may solely look for evidence which may corroborate “her” claim. It may not look for evidence that contradicts it. Further, in a broader context, the specific reference to the putative rape victim as “her”, disqualifies putative male victims of rape from the same footing as females and is, thus, on its face, ultra vires from the “equal protection” provision guaranteed by the Constitution Article 21.
It is standard procedure for Police to draw up statements from co-conspirators (“parties interested in the outcome”), scribe similar events as narrated by the Prosecutrix in English or their own indigenous language, “explain in vernacular”, and obtain signatures – particularly when the signatories are illiterate – thus, meeting the Hon. Court’s notional standard of “corroborating evidence”.
The bottom line is, in this politically charged anti-rape climate, where we daily face a barrage of sickening perversities reported by the media, we tend to form a predisposed opinion that the narration is accurate and truthful. We forget that sensationalism is the media’s bread and butter and a powerful vehicle to commandeer public opinion. Chances are, there might be an element of truth in the story but the Trial by Media shouldn’t influence the Preponderance of Innocence by our courts.
But it does!
Tags :Criminal Law