“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 they are ravished”.
The trial in the said matter is still pending. Astoundingly, Justice Dixit’s order compiled a brief, inclusive of unnecessary facts justifying the grant of anticipatory bail. It did not include the usual qualifier that “the said observations will not have any impact on the proceedings of the trial court”.
The order also states that the complainant’s reason that she was subject to rape on false promises of marriage is a bit difficult to understand. Moreover, she had also written a letter to effectuate a compromise for withdrawing her complaint. The complainant had employed the services of the petitioner for the last two years or so. However, she neglected to submit a reason for not approaching the Court at the earliest point of time when the petitioner was allegedly forcing her for sexual favors. In continuance, Justice Dixit also points out that the complainant has not clarified her 11:00 pm visit to the office. Surprisingly, she has not objected to consuming drinks with the petitioner and allowing him to stay with her till morning. Justice Dixit adds:
“The version of the complainant that she had been to Indraprastha Hotel for dinner and that the petitioner having consumed drinks came and sat in the car, even if it is assumed to be true, there is no explanation offered for not alerting the police or the public about the conduct of the petitioner.”
Loopholes in the order
Justice Dixit rightfully granted anticipatory bail to the accused with strict conditions regarding violation and cancellation of bail. However, his observations are on the merits of the case that have no bearing to the grant of anticipatory bail. Hence, it is ambiguous as to whether the accused would be aggrieved at all with the strict conditions attached.
The conditions were imposed in order to secure the presence of the accused of investigation or trial. In the instance of the COVID-19 pandemic and its threats to detainees in prison, Justice Dixit, has no reason to have imposed the conditions along with the bail, concerning the merits of the case.
Judges resorting to Stereotypes and Myths: A menace to rape cases
Generally, Judges conferring to stereotypes believe that rape victims react in a particular way. Thus, Justice Dixit, in the present case, highlighted that a rape victim could not have felt tired and fallen asleep after the “incident”. He did not consider the fact that the victim could have fallen asleep due to sheer helplessness and shock. Thereafter, he relied on traditional perceptions of such behavioral attributes.
Earlier in October 2016, the Supreme Court had acquitted the accused and disbelieved the rape victim. In their order, a Supreme Court bench comprising Justices Pinaki Chandra Ghosh and Amitava Roy said:
“Her conduct during the alleged ordeal is also unlike a victim of forcible rape. It betrays a somewhat submissive and consensual disposition. The nature of the exchanges between her and the accused persons is not at all consistent with those of an unwilling, terrified, and anguished victim of forcible intercourse. Her post-incident conduct and movements are also noticeably unusual.”
Reforming Rape Sentencing in India-A book by Prof. Mrinal Satish
Professor Mrinal Satish, explains similar contentions in his book Discretion, Discrimination, and the Rule of Law: Reforming Rape Sentencing in India (2017). He states that in 2002 the parliament repealed section 155(4) of the Indian Evidence Act (IEA). Within this the defense could bring evidence of the “general immoral character” of the victim. As a result, stereotyping has shifted from the stage of guilt adjudication to the sentencing phase of rape trials.
The newly inserted proviso to section 146(3) states that:
“where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.”
As per the book, the new law now prohibits guilt adjudication to use certain rape myths. Thereafter, courts started using them in the sentencing phases now. Justice Dixit’s use of these myths has added to the concerns of the book for pre-trial stages as well. According to Mr. Satish, with the introduction of legal reforms, judges have reduced the use of these myths for victims. Yet, aberrations still persist at adjudication, sentencing, and appeals as well.
Meanwhile, activists may urge the chief justice of the high court not to assign Justice Dixit cases involving rape allegations. His open display of belief in stereotypes concerning victims could disqualify him in deciding cases in accordance with the law.
This calls for comprehensive conversations with the judges to change their mindset about these problematic stereotypes prevalent in the judicial system of our country.