brillopedia
Dec 9, 20204 min
By
Jasmandeep Kaur Hayer, II Year of B.A.,LL.B from O.G.Jindal Global University
In India, it is impossible to find any female who has not been harassed at least once in her life. Very rarely are cases of rape and sexual harassment reported to the police. Even rarer are convictions in the instances these cases are taken to court. The main reason behind this is that Indian society is a patriarchal society, wherein everyone’s first reaction is to blame the victim for putting herself in that situation. Despite there being legal and moral repercussions, these biases have infamously permeated the legal system, leading to a situation wherein the woman has no scope of getting justice and instead is humiliated for getting violated.
One can not talk about the history of feminist activism in India without mentioning the case of Tukaram v. State of Maharashtra. A minor tribal girl, Mathura worked as a labourer and a domestic helper for a woman named Nushi. She had started a romantic and sexual relationship with her employer’s nephew, Ashok. The young couple wished to get married. But the girl’s brother was against the relationship and filed a case of kidnapping against Nushi, her husband and Ashok. All the concerned parties came to the police station. Statements were recorded and they were allowed to leave by 10:30 PM. When everyone was about to leave, Tukaram, the head constable, and Ganpat, a constable, asked Mathura to stay back after everyone was gone. Whatever happened after that has been an issue of controversy within the court of law. Mathura claimed that the policemen took her to the police station’s back, near the latrine and Ganpat forced himself upon her. Tukaram, too, attempted to rape her, but could not do so by the reason of being too drunk. He could, in his condition, only fondle her private parts.
Meanwhile, the girl’s brother Gama, along with Nushi, Ashok, Nushi and her husband waited outside the police station. Mathura came out and announced that Ganpat had raped her. She was checked by a doctor, who found no injuries. The examination further revealed that her hymen had old ruptures, meaning that she had had intercourse in the past. Both her clothes and Ganpat’s pyjamas revealed the presence of semen. Yet the Sessions Court found the evidence insufficient to convict the accused. The Sessions Judge said that while intercourse could be proven between Mathura and Ganpat, it was a very different idea from the concept of rape. He believed that Mathura had falsely cried rape to appear virtuous before a crowd that included her brother and her lover. Before moving forward to the future legal proceedings in the case, it must first be established that the Sessions Court’s judgement by itself is flawed, for it ignores the power the constables held over the young girl. The judgement also does not take account of the age of the girl, who was a minor.
The Bombay High Court reversed the judgement of the Sessions Court. It held that given that the two men were strangers to her, Mathura was not likely to “ make any overtones or invite the accused to satisfy her sexual desires”. The High Court concluded that the two policemen had misused the power that they held over Mathura and exploited her circumstances. The court sentenced Ganpat to 5 years and Tukaram to 1 year of rigorous imprisonment, by the law of the time.
The Supreme Court then reversed the High Court verdict. They held that the claims of having put up a “stiff resistance” on Mathura’s behalf were fabricated as medical examination showed that there were no injuries inflicted upon her body. The court also thought that it was preposterous that despite being in the company of her brother, the girl was overawed by the authority of the two policemen. The court also took a negative view of the changes in Mathura’s statement throughout the entire legal proceedings.
Unsurprisingly, the judgement was met with huge uproar. It was appalling how easily the highest legal authority had sacrificed women’s rights. Even if there were no shouts, it did not equate consent. And no consideration was taken of the fact that Tukaram was intoxicated. Instead, the court chose to believe that a young girl 14 years of age had seduced two police men into sleeping with her. This assumption was very heavily dependent on Mathura’s past sexual history. Would the court have come to the same conclusions had the victim been a virgin at the time she was raped?
The judgment was the catalyst for feminist legal activism in India. It eventually led to an amendment in the Indian rape laws. But yet the plight of the victims has not seen any significant change.
Indian society deeply stigmatizes rape victims. Even on rare occasions, a rape case is bought forward before the court, the victim is blamed and judged. It can never be that the court of law is free of bias, for the very people who constitute it are human and thereby mingle in society. The society expects the victims to behave in a certain way and when a victim does not meet does expectations, it is said that she brought the act of rape upon her, and in certain cases even deserved it. This concept of ideal victim promotes rape culture, wherein the men are seen as blameless because, of course, it was the woman’s fault that they were incited to rape her. This idea is nothing but a way of excusing the men of responsibility for their actions by putting the onus on the woman. Every time there is news about an instance of rape in the news, some one or the other is questioning what the victim was wearing, eating, drinking, etc. This bias affects legal proceedings. A recent, and rather prominent, example of the same would be the case of Hardik V State of Haryana where 3 male students of Jindal Global Law School were granted bail for gang-raping and sexually harassing their classmate over some time. In the very same judgement, the judges labelled the victim as promiscuous and judged her former relationship with her rapist. The stigma against premarital sex in India is so severe that the woman participating is essentially deprived of any legal remedies, should some unwanted advances be made towards her. She does not need to go to a court to be judged, the society delivers her sentence.