-Sharnam Agarwal
Introduction
Every day in India, 86 women are reported as victims of rape, according to the National Crime Records Bureau [“NCRB”]. Among these harrowing statistics, the most disturbing trend is the 96% increase in child rape cases from 2016 to 2022.
A recent judgment by the Rajasthan High Court in Suwalal v. State of Rajasthan, a case involving the rape of a 6-year-old girl, has sparked widespread concerns and highlighted serious flaws in the judicial handling of such cases. The court held that “disrobing the girl and removing one self’s clothes did not constitute an”attempt to rape“ but rather an incident of “Indecent assault.” Consequently, the court modified the accused’s sentence from S.375 and 511 to S.354 of the [“IPC”]. This controversial decision has raised significant concerns regarding the interpretation of legal principles and its broader implications for criminal justice in India.
Courts frequently deliver similar verdicts, showing this is not a unique occurrence. Recently, in the case of Libnus v. State of Maharashtra, the Bombay High Court, while acquitting a rape accused under the [“POCSO”] Act, observed that “Opening pant’s zip and holding the hands of the minor victim cannot be termed as sexual assault under the POCSO Act”.
This piece will focus on three primary aspects of the Rajasthan High Court’s judgment: procedural irregularities, interpretation of legal principles, and broader implications for the criminal justice system.
Legal Analysis of the Judgment
The present case dates back to 1991 when the accused forcefully took the 6-year-old victim to commit rape. The accused undressed the victim and himself, but due to the victim’s hue and cry, he fled from the scene of the incident. Based on the evidence and the victim’s testimony, the trial court convicted the accused of rape under Sections 375 and 511 of the Indian Penal Code.
The accused appealed in the High Court, and the court, while differentiating between preparation and attempt to rape, held that “Undressing oneself and the victim is not an attempt but merely preparation to rape” and overturned the lower court’s decision from Section 375 to Section 354 which punishes for indecent assault. The main difference between the two sections is the severity of the punishment. The former carries a penalty of 10 years to life imprisonment, whereas the latter carries a penalty of 1 to 5 years of imprisonment.
The judgment was callously rendered by selectively cherry-picking the precedents and completely disregarding the following legal principles.
- Faulty distinction between rape and indecent assault– In Aman Kumar v. State of Haryana, the Supreme Court differentiated between rape and indecent assault, stating that “There should be some action on the part of the accused that he was just going to have sexual connection with the victim.” In the present case, the accused undressing the victim and himself constitutes actus reus and indicates an attempt to commit rape rather than mere preparation. It is difficult to imagine why a person would undress the victim other than to attempt rape. Despite this, the court in the present case, with its faulty distinction between the two crimes, modified the accused’s sentence to indecent assault.
- Disregarding intent of the accused– In Chaitu Lal v. State of Uttarakhand, the Supreme Court has clarified its position on an attempt to rape, stating that “When the culprit begins to act with the necessary intent, the attempt to commit the offence occurs; furthermore, even if the accused has not removed his clothes, the offence of attempt to rape is committed.” In Chaitu Lal accused’s act of pouncing upon the victim and forceful removal of her clothes was deemed as an attempt to rape rather than indecent assault. Rajasthan High Court’s ruling, which disregarded the accused’s intent and termed his act of disrobing the victim as an indecent assault, contrasts with the Supreme Court ruling.
- Victim’s testimony is enough for conviction in rape– The Supreme Court has reiterated in Phool Singh v. State of M.P. and other cases that “the sole testimony of the victim is sufficient to convict a rape accused if it is found to be credible and trustworthy”. In Phool Singh, the victim’s consistent testimony, despite the lack of corroborating evidence, was deemed sufficient to convict the accused. In the present case, the victim categorically stated in her examination-in-chief that the accused took her to a secluded place and undressed her to commit rape. The victim’s grandfather also corroborated this account by reporting the incident. Despite having the victim’s testimony and other substantive evidence, the Rajasthan High Court trivialised an “attempt to rape” into “indecent assault,” which disregarded the Supreme Court’s Phool Singh ruling.
Section 375 of the Indian Penal Code, which addresses the crime of rape, is often undermined by judicial actions. By acquitting the accused on mere technical grounds, the High Court has not only disregarded the spirit of the law but also set a dangerous precedent.
Similar Judicial Precedents
The Indian judiciary has a troubling history of acquitting rape accused on perverse grounds. Despite repeated cautions from the Supreme Court, which has emphasised that “When dealing with cases of rape, a heavy onus is placed on the courts and they have a great responsibility to handle these instances with great caution”, the judiciary often fails to meet this mandate. Disturbingly, insensitive and bothersome remarks by judges during rape cases are not uncommon, further aggravating the trauma of the victims.
Previously, the Jammu & Kashmir High Court issued a similar judgment through a narrow interpretation of the POCSO Act, stating that “The accused’s act of removing his and the victim’s pants is merely an act of sexual assault and not an attempt to rape under the POCSO Act.” In Amit Kumar Tiwari v. State of M.P., a rape accused was acquitted by the MP High Court solely on the ground of delay in FIR registration. The Supreme Court later quashed this order, calling it “perverse.” Similarly, In V. Mohan v. State of Tamilnadu, the Madras High Court suggested mediation between a rape victim and the accused, blatantly ignoring the settled legal principle that mediation is not applicable in rape cases. In a shocking incident, the MP High Court granted bail to a rape accused in the case of Vikram v. State of M.P., imposing the condition that the accused must get a rakhi tied by the victim, symbolising a brother-sister relationship, thereby trivialising the severity of the crime.
Judges tend to focus on victims rather than the actions of the culprit. A recent order by the Karnataka High Court in Rakesh v. State of Karnataka illustrates this trend. The judge remarked, “Unbecoming of an Indian woman to sleep after she is raped, that is not the way our women react.” Alarmed by these incidents in Aparna Bhat v. State of Madhya Pradesh, Supreme Court established guidelines for handling rape cases. Recently, the Supreme Court has also released a handbook on gender stereotypes. However, the reoccurrence of such cases reminds us that these guidelines are often disregarded.
Nonetheless, some progressive judgments are also emerging from the courts. In a recent case, the Calcutta High Court ruled that taking off the child victim’s pants after her refusal constitutes an attempt to rape and not merely indecent assault. Meghalaya High Court also held that rape can take place in the absence of the removal of the victim’s undergarments. These rulings demonstrate that while there are significant challenges, efforts within the judiciary exist to uphold the rights and dignity of rape victims.
International perspective
In most developed countries, gender sensitisation is an integral part of police and judicial training, where it is strongly emphasized. For instance, Sweden has specialised police and judicial units to handle rape cases sensitively. In 2018, Sweden implemented a new rape law that considers a lack of explicit consent to be a sufficient basis for rape. As a result, convictions for sexual offences have increased by 75%. Similarly, South Africa has developed a robust victim-centric support system through care centres and special courts, prioritising gender sensitisation and a victim-friendly environment. In 2016, Germany introduced the “no means no” law, which criminalises every nonconsensual sexual act as rape.
In contrast, India lacks a systematic mechanism to handle the sensitivity of rape cases. Although both the government and the judiciary have made notable efforts, they remain ineffective because of their unorganised nature. Therefore, the Supreme Court instructed the High Courts to develop a gender sensitisation course for judges and lawyers, but they have not taken concrete action.
Despite overhauling its criminal law with the Bharatiya Nyaya Sanhita (BNS), India missed the golden opportunity to introduce significant positive reforms in rape law, as they are almost the same as the old IPC. For instance, The BNS maintains silence on marital rape, leaving India among the 36 countries that do not criminalize it.
Therefore, gender sensitization is crucial and, can be achieved through, progressive legislation and comprehensive training. Various stakeholders, particularly the judiciary and government, must undertake meticulous and systematic efforts to achieve this goal.
Conclusion and the way forward
The present judgment is just the tip of the iceberg, as similar verdicts are rendered regularly. The real problem lies in judicial thinking, which is mired in patriarchy. Even though the Rajasthan High Court is facing criticism from various quarters, we must acknowledge numerous instances where the decisions and rulings of Indian judges have significantly undermined gender justice.
Trivialising a heinous crime on technical grounds inflicts irreplaceable harm on the 6-year-old victim and promotes rape culture. Such judicial actions undermine public trust in the courts, which are often the last beacon of hope for justice. Judges must handle these cases with utmost sensitivity and be mindful of their decisions’ impact on gender justice. They must interpret the law to promote equality and fairness, as failing to do so perpetuates discrimination and injustice against women and marginalised genders.
The constitutional courts while dealing with sensitive cases like rape should not limit themselves to the technical grounds by treating the law just like a black letter. Like all other institutions judiciary has not remained untouched by gender discrimination. Due to these perceived discriminations, India has slipped two places on the World Economic Forum’s (WEF) Global Gender Gap index to 129th place.
The recent ruling underscores the need for a comprehensive legal framework for sexual offences, especially involving children. It emphasises the importance of gender sensitivity training for judges and strict adherence to legal standards in rape cases. Additionally, ensuring the representation of women in the higher judiciary is crucial, as their diverse perspectives help counteract patriarchal biases and uphold the dignity of rape victims.
In SP Gupta v. Union of India, it was observed by Justice P.N. Bhagwati that, “The role of an independent judiciary is not limited to dispute resolution but extends to bringing a social, economic, and political revolution in the country.”. The judiciary has a bigger role in the larger discourse of gender justice. A lack of sensitivity in the rape cases would result in a travesty of justice. Rape is a horrible crime that not only adversely affects victims but to the whole of society. The crime of rape in itself is sufficient to cause havoc on victims’ life and such incidents add further to their agony. Therefore, it is high time for the courts to do away with this patriarchal and sadistic thinking and promote a broader discourse of gender justice. The dream of a just and equitable society without a gender gap can only be realised then.
The writer is a second-year law student at the National Law Institute University, Bhopal. He has a keen interest in research and writing about criminal law reforms and constitutional law.