Dear Shri Prasad,
Leaving my case - an ordinary tabra from the bottom of a rain forest - apart, I had posted the comments of the Kerala High Court judge who gave the judgment in the Suryanelli gangrape incident. All accused except one or two who had "set-up" that girl were released unconditionally and the reason given was that the girl's past history showed her to be a "deviant" person.
Sangom Sir,
I read this Judgement. Its here.
Suryanelli judgement text.
If I have read this Judgement correctly the acquittal is based on three things:
1.Failure of prosecution to prove its case (an unfortunate reality given how our police functions if the crime is against common man).
2. The observations of Justice Basant are from Paragraph No. 196. Firstly these are observations i.e.
obiter dicta(that too
per incuriam*, i.e. they carry no binding value as a precedent) and not the ratio decidendi of the judgement.
Secondly Contrary to what media would want us to believe, it appears to me that Justice Basant was actually sympathetic to the plight of victim and couldn't convict the accused under statutory rape, as age of consent was 16 yrs when this incident happened.
3. This acquittal has been set aside by the Supreme Court.
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There are few issues with considering previous sexual history of the victim or blaming the victim :
a.That it treats rape NOT as a crime against bodily autonomy(consent) and her bodily integrity but as a crime against chastity. This flaw has been recognised by Supreme Court itself in
State of Maharashtra Vs. Madhukar N. Mardikar (1991) 1 SCC 57. I will quote the relevant paragraph :
"the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard."
* this is why I said the Judgement is
per incurium,(that is delievered due to ignorance of Law).
b. The medical test used to determine previous sexual history is the TWO FINGER test, which will be futile in case of a rape of married woman or if penetration is non v****al or if the penetration is by objects other than the male member.
It can be nobody's case that a woman will feel any less violated in these cases.
Mercifully two finger test has been discontinued by the Supreme Court.
No two-finger test for rape: SC | The Hindu.
Just two days back the
Delhi High Court (which, apparently, cannot be below the trees in a rain forest) has advised the police not to go about investigating rape accusations mechanically, assuming that the culprit cannot be blamed:
"The court ordered that copy of its judgement be sent to Delhi Police Commissioner and others so that efforts can be taken to "sensitise" and "train" police officers to conduct probe in such cases with "an open mind without treating the statement of the girl as gospel truth"." (
see here)
Sir,
a. It was a sessions court .
b This is a directive for even handed investigation and doesn't amount to blaming the victim, rather it says that complaint should be investigated with an open mind. Reason for it is simple: the burden of proof lies on the accused and he deserves a fair investigation .
Hence, it is not only nincompoops like myself who hold that the western norm of "don't blame the victim" may not be applicable to India, but also learned High Court Judges say the same thing. May be, for emancipated people like you, even the High Court Judges of India will be uninformed fellows loitering on treetops in the rain forests and not getting the picture of the whole forest, but it does matter in India, the semi-savage civilization that we are.
.
Sir,
Since you brought up the issue of High Court Judges, as a practising patent lawyer in Delhi High Court all I can say is it depends on the bench hearing the matter.(This is more pronounced in the cases where there is statutory ambiguity which gives latitude to a Judges discretion).
It is a High Court which has decriminalised Homosexuality.
It also threw out a case where police had arrested a couple for publicly kissing on a metro station stating that its a natural expression of love.
For the italicised portion, please ask any lawyer practising in a High Court whether the quality of the HC judges is the same as it was twenty years ago. Blame primarily lies with the collegium system evolved by Supreme Court where more than merit cliques matter now.
Also Indian Judiciary can be very conservative and has a class bias (again varies from bench to bench), prime example being frustration of land reforms which led to a series of amendments in constitution leading to a very vaguish basic structure doctrine.
I agree that we have the "uppermost crust" of society, itching to hover over the rain forest and to go settle in some civilized land like US or Europe. The womenfolk from such upper crusts are the ones who currently believe in "minimum covering, maximum exposure", some aspects of which are commented by different people in the press cutting (scan) attached to post # 73 above.
This may no longer be the case. FWIW, I see many females from lower middle class and even poor purchasing such clothes from flea markets in Delhi. ( I Admit it is anecdotal.)
I do know, for sure, that my agreeing with your pov or vice versa, in this forum, will not at all affect the rape situation in India. But, I felt that the situation in India is not what possibly prevails in US. Let us accept the difference and agree on peaceful coexistence.
Sir,
Will like to modify it, our discussions will not affect the rape situation
as of yet or in near future but we need to make a start somewhere so that it does not remain the same forever ( by this I do not mean that India should become Americanised or westernised. It is a separate issue all together).
Peace
