Ours is a country fairly conservative in its functioning- a country that claims to have women enjoying basic human rights but in an institution primarily fashioned to cater to men, where the citizens are conditioned to see women as the inferior and vulnerable class. All of such notions lead to shifting the burden of responsibility of the crimes committed by male perpetrators onto female victims. This vicious cycle affects the female citizens in such ways that even access to the democratic institutions designed to provide them with justice without being affected by the orthodox biases becomes unnecessarily arduous. In such situations, the citizens look up to the institutions which are considered the epitome of fairness and equity- the Judiciary.
As altars of justice, the courts play a substantial role to form societal perceptions and be the flag-bearers to break biased gender stereotypes as Article 141 incorporates the rule of precedent or the doctrine of State Decisis which leads to such orders having a monumental effect on future jurisprudence and creating an impact in the society. In certain recent cases and judgments involving the serious crime of rape, it has been noticed that the judiciary instead of following an unbiased approach characterizing a credible and progressive institution, has made remarks deeply rested in patriarchal and misogynistic notions, shamed the suffering victim, and tried to fit the behaviour of the victim post-rape into a typical and paternalistic set of defined codes, with no scope of deviation from the same.
Such attitudes of the Judiciary despite changes in the Indian laws have remained a disregard to the suffering and the esteem of rape victims and time and again set examples to prevent them from relying on and accessing the judicial procedures. There have been changes in laws and proposals of guidelines to make the legal proceedings inclined towards making the procedure fair and respectful to the victim, an example of which is the case of Aparna Bhatt v. State of Madhya Pradesh, which was an appeal against the order of Madhya Pradesh High Court in the case of Vikram v. State of Madhya Pradesh, where the single-judge bench granted the bail to the accused on the condition of him getting a “rakhi” tied by the victim and gravely trivializing the offence of rape and infringement of the bodily autonomy of the victim. The Supreme Court issued guidelines in Aparna Bhatt v. State of Madhya Pradesh in a seven-fold manner, the two of which relevant to the topic are:
- i) Bail conditions and orders should avoid the reflection of the perpetuation of the patriarchal codes about women in society and be in line with the requirements of Cr. P.C. Simply putting, the supposed role of the court should be to avoid any kind of discussion of the unnecessary and victim-blaming questions or comments about the dress, the conduct, the time of being outside or past “conduct” or “behaviour”.
- ii) The behaviour of the judges should be such that it takes into concern the sensitivity to be maintained and no further traumatization be caused to the prosecutrix in the course of proceedings.
Despite the guidelines regarding the sexual abuse cases against women, the fundamental approach of the judges has been couched in pre-conceived and rigid presumptions about the behaviour of victims post-rape which shall be further discussed in detail.
ANALYSIS OF THE “IDEAL RAPE VICTIM” IMAGE PERPETUATED BY THE JUDGES
Even after years of revolutionizing movements to secure gender equality, the “conduct” and “character” of the victim stays crucial to the process of adjudication in the courts and gender-biased ideas perpetuate to define the innocence or “immorality” of the victim involved, which can be observed in the undermentioned. There was some much-needed commotion over the order passed by the Karnataka High Court in the case of Rakesh B. v. State of Karnataka, where the court disbelieved the victim mentioning the post-rape situation where the victim got exhausted in the aftermath of the crime committed upon her due to which she became somnolent and did not immediately report the incident. The court even granted bail to the person accused of the serious offence on this basis considering the behaviour of the victim “not becoming of Indian women” for according to the court this would not be the best way for an “Indian” woman to behave. A line of thoughts similar to this was followed to dismiss the integrity of the prosecutrix in case of delayed complaints since the assumption of the court was such that a woman robbed of her “valuable possession-virginity” would approach the police in the case of Swami Chinmayanand alias Krishna Pal Singh v. State of Uttar Pradesh. According to the one-box-fits-all interpretation of a victim’s behaviour, the court seemingly presumed that a believable victim would be a distressed and inconsolable one who would be ravished enough to run to seek immediate help.
This was even contended by the Supreme court in the case of Kamalanath v. State of Tamil Nadu, where the court remarked that weeping and seemingly inconsolable victim strengthens her testimony. This particular sexist remark is deeply rooted in the paternalistic idea that the commitment of “rape onto a woman is a fate worse than death” but not because it is a sheer violation of her bodily autonomy rather it is seen as an act that robs an Indian woman off her most valuable asset -“chastity”. As the Supreme Court took note of in the case of State of Punjab v. Gurmit Singh & Ors. “A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female”. Thus, a rape victim is thus supposed to be broken, devastated, and destroyed to be trustworthy – a notion entrenched in Indian society. Furthermore, in the case of Raja v. State of Karnataka, the court in another incident of expressing its baseless and regressive presumptions, remarked that the victim instead of hurrying back to her home in a “devastated and distressed” state, started searching for evidence at the site of the crime, which appeared to the court to be “vengeful” on the part of the victim and a basis enough to doubt her testimony. Another sexist assumption of the courts has been the “chastity” of the prosecutrix which according to the judicial bodies is defined by her abstinence from sexual activities.
In the case of Arif Iqbal alias Imran v. State, the Delhi High court, in an absolute disregard to a woman’s sexual autonomy and shifted the burden of the intentional act by the rapist onto the victim by emphasizing the skewed notion about the responsibility of a “good” woman to protect her “chastity”, stated, “It is the prime responsibility of the woman in the relationship or even otherwise to protect her honour, dignity, and modesty. It is for her to maintain her purity, chastity, and virtues.” This is an instance of the wrongful perpetuation of the idea that a reliable prosecutrix is one who actively abstains from any kind of sexual activity, especially with the perpetrator, and is a “virgin”. In the case of Mahmood Faruqi v. State (GNCTD), the court cited the victim hugging and kissing the perpetrator initially, as facts enough to doubt her testimony and ignored a recording where the victim explicitly mentioned her lack of consent for the act. In the aforementioned cases, an important observation would be the flawed understanding of the concept of “consent” as the only relevant factor in rape cases and not the sexual history, the behaviour post-rape, the conduct, etc. of the victim. There is no protocol to be followed by the rape victims post-rape or in general written in law. The judges also have been seemed to focus on the denial/resistance rather than consent for the sexual act.
The pronouncement of such statements by the court lay the principle that victims, after the traumatic incident, have to take care of abiding by the code of conduct as established by the courts, the deviation from which will weaken their testimony, paving the way for people justifying such crimes by calling them an exaggeration or lying by the victim, regardless of such statements just being obiter dicta, which is not binding. Lucinda Finley sums this up by stating “Language matters. Law matters. Legal language matters.” Statements carry subtext and connotations. Judges, hence, must behave in manners befitting the position they hold and acknowledge the ethics of judicial temperament with humility and impartiality. The judges, since are no experts on human behaviour, should focus on the definition of consent and its active presence before the act. An important step to address this problem would be to create an equal environment with enough women within the institution, disembarkment from sexist notions and conservative outlook, and adoption of fundamental sensitization with regard to sexual abuse cases.
Author(s) Name: Runjhun Sharma (Dr. Ram Manohar Lohiya National Law University, Lucknow)
 Constitution of India 1950, art 141
 Aparna Bhatt v. State of MP  SCC OnLine SC 230
 Vikram Singh v. State of MP  SCC OnLine SC 1749
 Debayan Roy, ‘Madhya Pradesh High Court order directing accused to get Rakhi tied by victim as a condition for bail set aside by Supreme Court’ (Bar and Bench, 18 March 2021) https://www.barandbench.com/news/litigation/madhya-pradesh-high-court-order-accused-rakhi-victim-condition-bail-set-aside-supreme-court> accessed 05 February 2022
 Rakesh B. v. State of Karnataka,  SCC OnLine Kar 844
 Swami Chinmayanand alias Krishna Pal Singh v. State of Uttar Pradesh,  SCC OnLine All 6594
 State of Punjab v. Gurmit Singh & ors.,  SCC OnLine P&H 12488
 Raja v. State of Karnataka,  SCC OnLine Kar 6165
 Arif Iqbal alias Imran v. State,  164 DLT 157 (Del)
 Mahmood Faruqi v. State (GNCTD),  SCC OnLine Del 6378