By Aradhana CV

Judges, why do you call raped women helpless? Why do you hold forth about their souls being destroyed or their bodies ‘ravished’? Why do you worry about their marriage prospects, and comment on their chastity or virginity? Are you a legal figure or a loquacious speaker delivering a lecture on the morality of Indian women?

An attempt to find the answers to these deeply troubling questions led me to 45 High Court judgments of 2016 relating to Section 375 and Section 376 (rape) of the Indian Penal Code some of which resulted in conviction and some in acquittal. My focus has been on the factors that influence the tone of a rape law judgment.

Some of you may say: surely the 2013 amendment to the rape law must have led to a change in the way judges discuss rape cases, unlike the famously face-palm moments that our judiciary and executive branches have given us in the past? Surely? No.

Let the rest of us refresh our memory on what the 2013 amendment is. The December 16 gang-rape case sparked a sorely-needed debate on issues of consent in rape law. This led to the establishment of the Justice Verma Committee, which deliberated on the reforms needed in the rape law. Taking the recommendations of this Committee’s report, the 2013 amendment focused on a woman’s bodily integrity and sexual autonomy, expanding the definition of rape beyond its archaic description as penile-vaginal penetration. It also provided a clear summary of what constitutes consent: a woman consents to a sexual act only when she unequivocally communicates (need not be verbal, can be non verbal gestures) her willingness to participate in it. According to the amendment, physical resistance is not required to signify non-consent.

So did all this talking and amending finally lead judges to a more gender-sensitive perspective? Sadly, the 2016 judgments do not reflect any such changes.

In most of the judgements I read and analysed, the judiciary was not merely silent on the concept of autonomy or consent. Instead they painted the image of the rape victim using archaic and gender insensitive and patriarchal precedents, speaking at length about Indian morality, and how an Indian woman who adheres to the moral code would never, ever bring false rape charges to court. Rape was defined in these 2016 judgments as a heinous crime, a crime against society, a crime that defiles a woman, kills her personality, “dehumanise[s] the woman by attacking her body and ruining her chastity”, and reduces a rape victim to an animal.

Examples? Glad you asked.

Judges love to quote precedents. One of the favourite precedents quoted in 2016 was Justice M Thakkar’s statement during the Bharwada Bhoginbhai Hirjibhai v. State of Gujarat case in 1983. “If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family.”

Another hot fav in 2016 was Justice Anand’s speech during theState of Punjab v. Gurmit Singh case in 1996:“No self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her”. Yet another adored phrase used in the 2016 judgments was Justice Deepak Mishra’s bizarre statement, “The victim is deprived of the dreams of ‘Spring of Life’ and might be psychologically compelled to remain in the ‘Torment of Winter’, found in the 2013 judgment of Shyam Narain v. State.

What’s wrong with judges having a bit of feast of reason and flow of soul you may ask. The problem is that in quoting these retro judgements, judges in 2016 continue to hold forth on irrelevant assumptions, from the idea that rape creates a hollow dent in a woman’s personality, to the anguish she faces due to the social stigma and losing marriage prospects or her husband’s love, but failed to emphasise a woman’s entitlement to her bodily integrity and sexual autonomy.

Where judges did not lean on precedent and had original formulations they often felt startlingly dated, like the legal equivalent of friendship bracelets.

“She was habituated to the intercourse as referred in the medical certificate…”, said the judge in the 2016 judgment of Rameshbhai Chhanabhai Solanki v. State of Gujarat. “Spinster”, “habituated to sexual intercourse”, and “promiscuous” were common phrases in various 2016 acquittals. The judges who spent merely three or four lines on stating what consent is verbatim from the IPC, managed to elucidate how the rape accused had ‘ravished’ and ‘violated’ the woman, and how her life was ‘spoilt’.

In yet another 2016 rape judgment, Ayodhya Prasad v. State of U.P., the judge used an bewildering expression when referring to a woman who was not the perpetrator’s wife: “Therefore, he should have had knowledge of the consequence of committing rape with a girl, who is not his wife. The million dollar question is that why the appellant had put his pious mouth in the dirty dream.”

This appalling approach to a non-married woman’s rape, which clearly prizes the sanctity of marriage even when it is not strictly relevant to the case, perhaps point to the reason that marital rape is not recognised as a serious offence in our country. It appears that the focus of rape judgements is on recognising rape as violence based on property rather than an infringement of consent – because if sexual autonomy was at the crux of rape laws, and if women are granted the choice to decide with whom to engage in a sexual act, how is it that husbands are exempted?

The tone, language and the approach of the judges in these judgments makes it evident that the rape law provision is not interpreted in terms of bodily integrity and sexual autonomy. The judges’ preoccupation with a victim’s marriage prospects being ruined begs a discussion about whether an Indian court interprets rape as a question of consent in the first place, as the judiciary is benton protecting the notion of the ‘virgin daughter’ or the ‘helpless female’ or the ‘man’s wife’, rather than a woman whose rights to sexual autonomy have been violated.

Meanwhile, if you ever have a stray afternoon and find yourself in need of some dystopic reading, you know where to start.