Introduction
On the 16th of August, the Supreme Court of India issued a 30-page manual named ‘Addressing Gender Stereotypes.’ This detailed document provides guidance on avoiding the use of derogatory language commonly employed in the courtroom when referring to women. This initiative holds significant importance as it seeks to mitigate the establishment of stereotypical beliefs regarding the character, actions, and demeanour of victims. Furthermore, it aims to eliminate preconceived biases that have the potential to influence the trajectory of legal proceedings and, subsequently, the objectivity of judgements. However, the words “virtue,” “morality,” “chastity,” “virginity,” and “openness” have persistently remained relevant in rape trials even in the 21st century. The presentation of women’s sexual encounters as evidence of general character or disposition has led to character-based assessments and discrediting victims. This practice has continued to occur in courtrooms in spite of the Criminal Amendment of 2013, which essentially made any form of character evidence irrelevant in rape cases.
A. The Ideal Victim
In rape trials, it is a common practice to present evidence with regard to the sexual conduct of the victim to show her general immoral character. The sexual conduct can include previous remarks about the clothes of women for example showing how the victim was often wearing tight clothes or the conduct of the prosecutrix before and after the incident, whether she displayed the so called “normal reaction of a rape victim” or not . The past history of the victim is invariably dug out, and every action is dissected to show her general immoral character. Every action related to any distant or insignificant sexual activity or behaviour of the victim is scrutinized through character evidence presented even after an expressed bar on it by legislation. In the case of Rakesh B vs. State of Karnataka, the Karnataka High Court made strong observations on the character of the victim based on her conduct:
“The victim arrived at her office after 10 o’clock. She didn’t object to alcohol and let the accused stay with her until morning. Claiming she fell asleep after rape was very unlikely and unbecoming of Indian women.”
Character has always been considered weak evidence, which exists only to corroborate substantive evidence. However, in contemporary times, such evidence has made it easy to raise doubt on the veracity of the victim’s statement. Courts habitually apply section 146(3) of the Evidence Act excessively despite the proviso that limits the cross-examination of victims in rape cases. Section 54 of the Indian Evidence Act prevents questioning the accused of his own bad character traits while allowing evidence of their good character under Section 53. The above case highlights the misalignment between the court’s interpretation and the protective intent of rape shield laws, which are designed to safeguard the rights of women.
The Imperfect Consent
Despite a presumption in favour of the victim under section 114A of Indian Evidence Act, it is not uncommon for the defence to present evidence about the past sexual conduct of the victim in order to dilute consent. Section 53-A of the Indian Evidence Act seeks to isolate the concept of consent from the influence of prior sexual encounters. However, as observed in the case of Mahmood Farooqui v. State of NCT of Delhi these principles were diluted. The Delhi High Court’s verdict, in this instance, permitted the faint expression of “no” to be construed as “yes” based on the victim’s specific conduct in those circumstances. This ruling sets a disturbing precedent by neglecting the advancements in progressive legal reforms and approaching the notion of consent with an impartial perspective.
The clothes of the victim are also used to dilute the notion of consent for the purpose of the trial as was seen in the Civic Chandran case where the Kozhikode session’s judge made remarks on the clothing of the victim while granting bail to the accused.
In the case of Tarun Tejpal v. State of Goa, the Additional Sessions Court, while acquitting the accused, raised doubts about the behaviour of the complainant, suggesting it was not “typical” of a victim. The statements entered into evidence by the Judge, although not intended to establish consent, had the potential to unfairly impact the prosecutrix’s case. These observations of the court probably contributed to the accused’s acquittal indirectly, serving as a concealed factor influencing the outcome.
Implied Usage of character as Evidence/Implied Usage
The practice of misusing character as evidence is rampant in rape trials. The victim is subjected to invasive and embarrassing questions during cross-examinations. The implied usage of character as evidence has, in many instances, led to stereotyping the victim, ultimately resulting in a delay in the delivery of justice. This has also resulted in erroneous precedents set by courts. A prime example of this is the infamous case of O.P. Jindal gang rape case, the provisions of law involved in this case are Section 376D, 376(2)(n), 376, 292, 120-B, 506 I.P.C. and Section 67 of the I.T. Act.
In 2013, the complainant filed an F.I.R. accusing Hardik Sikri, Karan Chhabra, and Vikas Garg of rape, gang rape, blackmail, and harassment. Sikri initiated the assault and obtained compromising pictures. This happened for a period of 2 years. The trial court sentenced them however the High Court later overturned the verdict.
The High Court granted bail to the accused while making victim-shaming comments against the complainant. Comments were made on the victim’s “voyeuristic mind”, “open nature”, and “promiscuity” on the basis of WhatsApp texts which were used as evidence. The character of the victim in this was constantly questioned, commented upon and used against her. In conclusion, character as evidence was not invoked under any sections of Indian Evidence law. However, it still played an important role in the acquittal of the accused in High Court.
The Handbook against the Stereotypes
In the novel step by Supreme Court, an attempt has been made to provide relief to women and other classes as they have encountered various biased beliefs and stereotypes that have hindered their ability to receive just and equitable treatment in both society and the legal system. It is expected that the courts at every level will adhere to the disciplined way of addressing various stereotypical concerns around a women’s character in the court room. However, the handbook is only a valuable guide and not a binding authority and thus it can only do as much as a guide to provide direction and not command strict adherence. The handbook is not a fully efficient measure but a mere mechanical application of the changes in the vocabulary.
Moreover, there have been no changes in the Bharatiya Sakshya Adhiniyam in the concerned sections, the provisions have been cut copy pasted without paving the way for more stringent adherence. Without any changes it is likely that the laws will continue to be exploited. The idea of consent remains flawed in our criminal justice system as elaborated above and the discretion in the hands of court could act counterproductive.
Even the introduction of a brand new law may not bring any fruitful change unless the various loopholes that are still being exploited in the garb of discretion are strictly removed.
Conclusion
On one hand, judges have themselves made offensive and demeaning remarks against victims’ character whereas on the other, due to presentation of character evidence, the courts have arrived at incorrect conclusions.
The decision in the case of Hardik Sikri was subsequently corrected by the Supreme Court and led to the conviction of the accused but the usage of character as evidence resulted in delay of justice and agony being faced by the victim.
The idea of consent is of utmost importance in rape cases. However, the use of evidence to illustrate the character of the victim has been continuously brought even after the explicit ban on usage of such evidence.
Section 53A and 114A were inserted in the Evidence Act with the objective of upholding the victim’s dignity and these sections signify the legislative intent to protect the victim. The amendments in the evidence act through 53A that were brought are supposed to be applied in a way that they protect the victims. An effective implementation of rape shield laws has not seen light of the day and the purpose of rape shield laws stands contradicted in the light of the judgments analysed above.
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