In the Punjab and Haryana High Court judgment in the Jindal Law School rape case, it is shocking to see that all verbatim quoted paragraphs are about the victim—a law student at the University—and centre around her character, instead of speaking about the three accused—Hardik, Karan and Vikas. In fact, the High Court suspended the sentence awarded to the law accused, who had blackmailed and gang-raped the victim numerous times for about two years.
Earlier this year, in March, the Additional District and Sessions Court had awarded 20 years’ imprisonment to the primary accused, Hardik, and his friends, Karan and Vikas were handed seven year jail terms. The High Court allowed their release and suspended the sentences awarded to them, directing that they would not leave the country, or contact the victim in any manner. Additionally, the court also suggested that they would have to undergo psychiatric counselling “until they are free of their voyeuristic tendencies”.
The Bench delivering the judgment comprised of Justice Mahesh Grover and Justice Raj Shekhar Attri, and shockingly suggested that they intend to “balance the concerns of the victim, demands of the society and law and the element of reformatory and rehabilitative justice”. For a Court that is primarily to examine questions of law, the Bench does not discuss the provisions pertaining to the crime at all. Sections 376D (gang rape) and 506 (criminal intimidation) of the Indian Penal Code, and Section 67 (publishing of information which is obscene in electronic form) of the Information Technology Act— are not delved into at all. Instead, the court examines portions of the victim’s testimony and tears her character to shreds. There’s also no analyses of previous cases with similar facts, no examination of major judgments on rape. The present judgment seems like a travesty.
Throughout the judgment, the criminal offences were ignored, and the alleged denigration of moral values by the youth took precedence for the bench. For instance, the Court stated that the testimony of the victim reflected “the immature but nefarious world of youngsters unable to comprehend the worth of a relationship based on respect and understanding” and how “[t]he entire crass sequence actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world.”
Moreover, the verdict as well as the judgment leaned in favour of the accused instead of the victim, whose basic human rights were violated. The bench spoke about a balance being struck “between retributory (sic), reformatory and rehabilitative justice”. This does not quite make sense, because the one who had invoked the justice system was ultimately denied it. The judges let the accused go because it would “deprive them of their education, opportunity to redeem themselves and be a part of the society as normal beings”. The punishment (or lack, thereof) does not take into account the crime, but the honour and reputation of the perpetrators.
Another shocking rationale for the verdict was that there was a lack of “gut wrenching violence that normally precede or accompany such incidents”. This part of the judgment is reminiscent of the 2012 Jyoti Pandey rape case that shook the conscience of the country because the victim was brutally violated, tortured and murdered by six men in a moving bus after being gang-raped. Jyoti’s brutal and gruesome death validated her narrative as a rape victim in India. If we strip the story of the brutality of the violent crime and the victim’s excellent character, the case fails to truly reflect the larger, significant issues of gender-based violence in the country. No such “gut-wrenching violence” took place in the present case, thereby normalising the rape, and sending a message out stating that a raped woman must die a heinous death in order to get justice. In fact, the court blames the character of the victim, instead of the perpetrators, stating that her statement has a “perverse streak” and “offers an alternate conclusion of misadventure stemming from a promiscuous attitude and a voyeuristic mind”.
The most significant issue that surfaces in this case is that despite recommendations in the Justice Verma Committee report of 2013 stating that criminal laws governing sexual assault must be interpreted from the perspective of the victim, there is no such effort from the judiciary or the adversarial system at large. To recall a case which took place before the Verma Committee report, in the Mathura rape case (Tukaram v. State of Maharashtra) in 1978, the Supreme Court was reluctant to take into account the statement of the victim because the circumstantial evidence did not lead to the inference of guilt and “in fact derogates in no uncertain measure from the inference drawn by it.” The discussion of the victim’s character in the present case makes it clear that rape jurisprudence in India remains strictly victim unfriendly, and does not take into account reparations in the form of both compensation and rehabilitation, and the accountability of the government in providing integrated services for the healing of the victim and to prevent violence against women.
Flavia Agnes talks about the phenomenon of “double trauma” where the victim, having gone through sexual assault, has to go through a gruelling ordeal of being in the court-room - where the perpetrator’s status of ‘innocent-until-proven-guilty’ is used against her time and again. What the Indian judiciary needs to do is figure out a way to conduct a gender-sensitive trial where criminal justice is victim-centric and focuses on the needs and interests of victims in judicial proceedings, and where trials are time-bound. Questions pertaining to the sexual history and character of the victim are barred by law, and this must be implemented.
The Jindal Law School rape case is an example of how problematic rape jurisprudence in India is, despite the recommendations of the Justice Verma Committee. The fact that the bench does not examine questions of law, whether it be sexual assault or the publication of obscene information in electronic form (thereby, completely ignoring that violence against women occurs in digital spaces also) is shocking. The bench does not talk about the concept of consent, and makes no effort whatsoever to make the trial victim-centric. The present case is an example of how change in judicial quarters must be pushed by a variety of stakeholders, and that legal amendments and ethos don’t always change the thinking of people on the ground
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Updated Date: Sep 23, 2017 14:09:14 IST