Introduction
Strict interpretation of statues has set many wrong precedents, but its not just strict interpretation of statutes, one other major reason is interpretation of statutes with respect to paternalistic values of country. It is not unknown to the world that India is a country with values and traditions, this might be the foundation of these paternalistic values affecting judgements of our court. Unknowingly, to save traditions of centuries, our judgements end up setting bad precedent causing harm to society. It can be seen by not inclusion of Non-consensual sexual-intercourse between husband and wife, where wife is above 18 which is called as a marital exception.[1] Provisions relating to adultery, where only man can prosecute the lover of his wife but no provisions are provided for women over men.[2]
Criminal Amendment act in past have been successful in decreasing these paternalistic interpretations from our judgements and granted some clarity in statutes specially regarding rape laws. Even after providing amendments, paternalism in India found its way into interpretation of statutes in judgements of our court. Acquittal of Ganpat and Tukaram is one such judgement that shook the whole country. We may think we have improved in years, but everyday women are facing new struggles against crimes and interpretation of laws in paternalistic manner, making it difficult for them to achieve justice.
The Incident
Tukaram v. State of Maharashtra generally known as Mathura Rape case raised number of questions on understanding of the word ‘consent’ with respect to meaning provided in statutes. Judgements are influenced by long history of mostly male judges using their own narrow understanding of the world impelled by paternalism that disbelieves when a woman says there was no consent.[3] Same occurred in 1972, where a young orphan girl named Mathura, who was Adivasi. She was a domestic worker and was around 14-16 years old in age. She fell in love with a guy named Ashok and wanted to marry her. Her brother didn’t agree to it and lodged a complaint in nearest police station. On receiving the complaint, police officers brought Ashok and his family in custody. Later they were allowed to leave but Mathura was asked to stay behind. She was then raped by two police officials. She tried to resist but eventually submitted and accepted the fate.
When Mathura’s family and village people found out, they threatened to file a complaint and burn down the police station. It was when accused agreed to provide evidence of incident (panchnama).
When this case reached trial court, judges found defendant not guilty as the girl was said to have promiscuous character as she was habitual to sexual intercourse. This judgement was then over turned by High Court which convicted the accused for rape and punished them with imprisonment of 5 years. However, justices Jaswant Singh, Kailasam and Koshal, in Supreme Court hearing reversed the judgement and acquitted the policemen with the reason that no signs of struggles were to be found and her submission is enough requirement to prove consent. This only proved sexual intercourse and not rape.
She was denied of justice for the reason she is habitual to sexual intercourse, so her consent was voluntary. And as she was habitual it must be her who seduced cops into having sexual intercourse. A mere taboo relating to pre-marital sex provided police officials license to rape. The judgment set a loophole in law, which provided submission due to fear is as equal as giving consent as long as there are no signs of struggles. Consent was taken to be implied when an unmarried girl had past experience of sexual intercourse. Too much importance was given to moral values and hence, Judges in such cases end up harming justice system in order to protect what is morally good.
On occurrences of rape or sexual assault cases the evidence regarding consent is often obtained on the basis of the past actions of the woman which seems thoughtless as at the time of the abuse she might not have consented which constitutes as a criminal act. Which means at that time the doors of justice were slammed for prostitutes because of their past conduct and ‘promiscuous character” would affect the fairness of proceedings. Before 1983, victim was character assassinated in the court for her sexual history and solely to prevent breach of privacy of victim’s sexual life this provision was created in criminal amendment act 1983.[4]
After Mathura Rape Case
We cannot deny the fact that these amendments relating to rape laws have made life little easier than before. Till 1983, rape by police officials was unknown to the eyes of law. It was Criminal Amendment act of 1983 when custodial rape was introduced to the category of rape in Section 375 of Indian Penal Code (IPC). Consent was given a wider understanding. It was laid that whenever sexual intercourse is proven and the women says she didn’t consent, the court would presume that she didn’t consent. Thus, Burden of proof was transferred to accused. It also provided discretion of name of victim.[5]
Mathura rape case left a huge mark on Indian Judicial system but yet it wasn’t enough to provide justice for women, many loopholes were still seen to be found that led to Criminal Amendment Act 2013. The horrific incident of Nirbhaya in 2012 was another landmark judgement that provided new rules with respect to interpretation of the word rape. Before 2013 ‘rape’ meant only penal-vaginal penetration but Nirbhaya case brought forward innovation in crimes that nobody ever thought about. The incident led to addition of any kind of penetration and also in any body part of the woman or girl as a definition of rape and gave it a wider meaning. There was also the addition of registering complaints and medical examination, where it was mentioned that on failure of registration of complaints or attempts to deceive investigation in anyway will be held punishable in accordance with the provisions.[6] With respect to Mathura rape case, judges in Nirbhaya case showed sensitivity towards the topic and made necessary reforms in law to provide justice to the suffered.
Even after ages of judgements of Mathura and Nirbhaya, negligence to women’s voice can be seen. A basic taboo being followed can be observed in the judicial system which differentiates justice for a good girl and bad girl.
[1] Independent Thought v. Union of India, , AIR 4904 (2017).
[2] Joseph Shine v. Union of India., , SCC 1676 (2018).
[3] De-eroticizing Assault,,
[4] Mukul Mathur says, Consent In Indian Rape Law: A Case For An Objective Standard Of Determining Consent, OHRH (2017), https://ohrh.law.ox.ac.uk/consent-in-indian-rape-law-a-case-for-an-objective-standard-of-determining-consent/ (last visited Nov 18, 2020).
[5] criminal_law_(amendment)_act,_1983.pdf, , https://www.indiacode.nic.in/bitstream/123456789/5429/1/criminal_law_%28amendment%29_act%2C_1983.pdf (last visited Dec 21, 2020).
[6] Id.
Aishwarya Says:
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
Do follow me on Facebook, Twitter Youtube and Instagram.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at secondinnings.hr@gmail.com
In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories.