Updated: Jul 18, 2020
New Delhi: Two weeks after a Karnataka High Court judge observed that falling asleep after rape was “unbecoming of an Indian woman”, a judge at the Araria District Court in Bihar has sent a gangrape survivor to jail.
“Sending to prison a woman who has been raped will have a chilling effect on women as a class. It impedes access to justice”, Supreme Court advocate Vrinda Grover said. “With the arrest and imprisonment, the rape survivor’s worst fears have come true and reinforce the hesitation and apprehension that women have in approaching the criminal justice system.”
Recording a statement made by a 22-year-old woman four days after being gang-raped by four men–none of whom have as yet been arrested–district judge Mustafa Shahi sent the rape survivor along with two social workers who had accompanied her to jail.
The three are at present lodged at Dalsinghsarai jail in Samastipur district, some 240 km from Araria where the rape is alleged to have taken place and where the survivor lives.
As the activists were preparing a bail application, including obtaining a power of attorney from the three, the Bihar government on 15 July announced a 15-day lockdown. “I am informed that all legal functioning has been stopped by order of the Patna High Court,” said Ashish Ranjan, secretary of the Jan Jagran Shakti Sangathan (JJSS), a trade union of workers from the unorganised sector where the activists worked and with which the rape survivor was involved.
The rape survivor and the two social activists, Tanmay and Kalyani (both use only their first name) have been charged with obstructing official legal proceedings, according to a statement by JJSS. The arrests were made soon after the survivor recorded her statement to the magistrate.
During her court appearance on 10 July, the survivor was not in an “emotionally stable condition”, according to the JJSS statement. She was kept “waiting in the court’s corridor, in intense heat, for four to five hours.” When she was asked to sign her statement she asked for one of her social workers to be brought to her side. This request was denied to her, which is when she “spoke to the judicial magistrate in sharp tones”.
The Sequence Of Events
The woman said she was raped on the evening of 6 July in a desolate stretch of road when she had gone to meet a friend, Mohammad Saahil, who promised to teach her to ride a motorcycle, just after 7.30 pm, according to the first information report (FIR) filed by the woman.
There, the two were accosted by three unknown men, at which point Saahil left. One of the men then brought a fourth man on his motorcycle. The four men raped her multiple times in a bamboo thicket, according to the FIR.
Speaking to Article 14, Sohini (who uses one name), an activist with the JJSS, said the rape survivor had a troubled family background. Her mother had died when she was very young. About a year ago, she began visiting the JJSS office, which doubles up as a residence, to help and over time became friendly with the activists who worked there.
After raping her, the men dropped the woman off at a fish market near the Araria bus-stand. She was disoriented and confused and called one of the activists to pick her and take her home. However, soon after being dropped home, she called again and asked to be brought to the office. There, she told the activists present, including Kalyani, Tanmay and Sohini, that she had been raped.
Throughout the next day, 7 July, the rape survivor went through feelings of fear and shame, said Sohini. By the evening, she said she wanted to file a police report and, accompanied by the activists, went to the Araria Mahila Thana to lodge her complaint. A medical examination to confirm rape was also conducted.
Before her appearance in court on 10 July, Saahil’s family, said Sohini, had begun putting pressure on the woman to withdraw the case. They wanted to meet her and even said Saahil would marry her. The woman refused to back down. “I was glad and proud that she was standing so tall despite the pressure,” Sohini said.
History Of Judicial Misogyny
The rape survivor’s arrest is an “excessive and unwarranted exercise of power” Grover said. The implications of sending her and the activists to jail during the coronavirus pandemic has serious health implications.
To protect the privacy of rape survivors, rape trials are held in-camera.
“Nobody really gets to know what is really happening,” said Flavia Agnes, lawyer and consultant with Rahat, a survivor support programme. “Judges are not monitored and a lot of what happens in these courts never reaches us.”
It is now common practice in many courts to allow survivors to be accompanied by a support person during the trial and recording of evidence. In Delhi, for instance, the Delhi Commission for Women-appointed lawyer assists prosecution and functions as a support person for survivors, said Grover. In Mumbai, child victims are by law accompanied by a support person, said Agnes.
“If the woman [in Araria] wanted a support person, there was no need for the judge to take offense,” Agnes said.
A support person can play a positive role in explaining complicated legal processes. A rape survivor “interfaces with the legal process in a traumatised condition”, said Grover. But time and again, it is all too evident that “judicial comprehension of gender-based violence is lacking,” she said.
India has a long judicial history of misogyny as evident in several past rape judgments. Judges have made liberal use of words such as ‘concubine’, ‘shocking liar’, ‘deathless shame’ and ‘feeble no’ while adjudicating, revealing personal bias and sexist stereotyping of rape survivors.
Some judges seem influenced by an unwritten code of court-appropriate behavior for rape survivors. An analysis of 100 Supreme Court and 800 high court cases by Mrinal Satish, a law professor, in his 2016 book, Discretion, Discrimination and The Rule of Law: Reforming Rape Sentencing in India, finds large disparity in sentencing that hinges on not just medical evidence and circumstantial evidence but how a rape survivor might behave in court. This places both a burden of proof and a burden of performance on survivors.
Since 2013, when India’s rape laws were amended in the aftermath of a December 2012 gangrape and murder in New Delhi, there has been renewed focus on training and sensitization of judges.
Clearly, a lot more work needs to be done. “Changes in the law without an equal investment in orientation and sensitization of judges has once again been brought to the fore,” Grover said.
(Namita Bhandare is a member of Article 14’s editorial board.)