ASHWINI A. writes from Bangalore: Early this morning, a Delhi-datelined news item in Deccan Herald made me pull my hair out in wonderment: the Supreme Court of India had ruled that nobody had the licence to rape a woman who appeared to be promiscuous in her sexual behaviour.
Yes, nobody has the licence to rape a woman who appears to be promiscuous in her sexual behaviour.
It might seem common sensical, but the beauty of common sense is that it is so uncommon, even in the rarified echelons of our higher judiciary.
When a 17-year-old girl was raped in Uttar Pradesh, the trial court had justly convicted her rapists. But the perpetrators went in appeal. Stunningly, the two men were let off by the Allahabad High Court on the grounds that the “girl was promiscuous in her sexual behaviour and had already lost her virginity”!
Basically the Allahabad HC ruling implied that a woman who was previously accustomed to sexual intercourse at the time of a rape cannot be believed when she screams rape.
In other words, only a virgin has a case against rape.
Seriously!
The insensivity and the sheer injustice in the HC ruling made me wonder if the case pertained to India or to one of our Islamic neighbours where such barbaric judgments are routinely pronounced.
Thankfully, the UP Government challenged the verdict and Supreme Court trashed the HC ruling and ordered it to rehear the case. But the mere fact that the victim could have undergone such a criminal miscarriage of justice in a high court, and on such grounds, beggars disbelief.
Does it require the Supreme Court of India to remind the High Court in India’s largest State of the basic point in the case: that it is the rapists who were on trial, not the raped?
While we must be relieved by the rightful intervention of Justice Arijit Pasayat and Justice Mukundakam Sharma of the Supreme Court, the HC ruling raises a number of troubling questions that the judicial system must be made to answer:
# How did the High Court arrive at such a judgement in the first place?
# What if the UP government had not challenged the HC ruling in the SC?
# How can the HC judge/s in the case be made accountable for the astounding judgment?# How much faith can the people place in the judges given such an open-and-shut case?
# And is such “jungle law” a nation-wide phenomenon of which we hear little?
I am sure I speak for the women of the country, virgin and otherwise, when I say that basic human rights were raped by the Allahabad HC and those responsible for it, virgin or otherwise, must be brought to book.
churumuri 
Where were you (the media) when the woman lost the Allahabad HC appeal?
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Judges are chosen amongst practising lawyer. We know the quality of lawyers, the leftover who cant make it join Law college.
The Judiciary is the worst perfomer among the four pillars of democracy. The SSLC and PU marksheet of the Judges will tell the quality.
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Hmmm… And I always wonder why the judges are ever ready to slap a contempt case on anyone who questions their decisions.. With these regressive decision makers as judges no wonder the rate of conviction for rapes in India is very low.
And when will the judges come out of their chauvinistic mentality that if a woman is not a virgin then it’s OK to rape her. Rape by definition is a forced sexual act. It doesn’t matter whether she had sex a thousand times before that or not.
Extremely disappointing that this judgment was delivered by the high court!! Imagine what transpires in the lower courts.
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Is it the same judge who suggested that Bhagavad Gita should be made the National Scripture?
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Courts in India are squarely responsible for the mess we are in!!! Unlike the popular myth, Indian courts are not best among the three functions of the government. I used to hold courts in higher respect thinking that they were better than legislative or executive.
As an immigrant, I have had countless discussion on why India is poor and west is rich, every time we have concluded that fault lies with the judiciary. May it be Indira Gandhi’s arrest ordered by Allahabad high court, may it be umpteen constitutional amendments that took away freedom from Indians, may it be bribery scandals that have rocked Parliament from Nehru to Manmohan Singh, Indian courts have shown their inability to apply wisdom.
Compare that to Amistad in 1700s or Civil Rights in 1900 , American courts have shown the way on natural justice. During 2007 hearing of constitutional amendment on OBC reservation, Indian courts refused to study “Linda Brown v/s Board of Education” judgment saying that has no bearing on reservation. Linda would have never gone to school in India!!! Thanks to Judiciary
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Excellence has become rare commodity in India excepting in arts, music, and such fileds where genius cannot be thwarted by our political system. Judiciary is not an exception. Show me one area where we have excellence today.
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Judges are chosen amongst practising lawyer. We know the quality of lawyers, the leftover who
cant make it join Law college.
Sad… but true. And funny thing is .. it is the same for Journalism too ;)
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naachikgaeDu.
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I remember a discussion among morally ‘up’ and ‘educated’ people about a time when the forces had raped people confined in a church in Mizoram. And I remember a lady saying, ” But the girls there are very loose”. I was quite young then, but I remember being appalled by that attitude. Nobody questioned why the men from outside Mizoram are so tight in their pants?
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nilesh and sandesh,
Your views applies only 90 % of the bar. But with the abolition of evening part time law colleges and starting of National law school and integrated law degree courses the situation is changing for the better.
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Jeevarthna,
90% is this a little number.
Lack of accountablity is the real issue, if a ganguly can be sacked, why cant
a high court judge. What is so Honorable about them that other citizens lack.
What cant be accounted cant be managed.
Throw out 5% Govt employees every year, across the spectrum. Just like GE does. In 3 years time the funtionality will double.
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Nilesh
You are right. The moment you talk about holding the judges accountable comes the “contempt of court” issue.
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Pingback: A rape is a rape | Writing Cave
Why does it have to take the Supreme Court of India to render justice unto the violated? There can be something more atrocious than rape, yes such a verdict from the Allahabad High Court.
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Indian, American, or other nation court-
The sole function of the defense attorney is to put the rape victim on trail and present her as a whore.
That is the defense, particularly if the defendant is guilty.
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Most of the atrocities on women are blamed for her ‘behaviour’ ‘ her revealing ‘dress’ etc. It is all baseless. Males have raped women as old as 85 year old and as young as a chils of not even one year!!.
It just indicates the mental make up of our society-male chauvanistic pigs!.
Was the girl sent for medical check up after she filed an FIR?
One has to be a virgin to get justice!
SHAME!!
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This is a biased judgement ! I just do not reveal the name bt one of my friend who was working at REGIONAL MUSEUM OF NATURAL HISTORY MYSORE as a part time receptionist one attender used to harrash her sexually he was alrerady 45 had 3 daughters and still want to sleep with girl who is of his daughters age abd constantly harrash her for this.Are not these males promiscious!he is so bothered about his daughter and at the same time he want to sleep with another girl .What aboutmales who sleep with the girl and leave her in the name of love?I think forst we have to change the mind of people down with this judge who has given biased judgement .
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This is really a cruel judgement! What is virginity?This is shows that our society is still male dominated and there is no justicefor women.many males missuse inoocent girls and have sex with them some willl directy ask for it!What is promiscious!Why wont that judge bother the behaviour of those males who have family daughters and still want to sleep to sleep with other girls and who sexually harrash women at working palces?What about the males who flirt and leave the girls in the name of love?We have to protest against this down with that judge shame on him.
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people sitting in judgement, in which ever courts, should be made accountable for all their actions. in this case the judges(s) should have been asked to step down and the Bar Council should initiate criminal action against him or her. Nobody is above the law, including the Judge.
Also they should remember that “They are mere Paid Servants of the people of India”. Yes. Paid Servants.
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The title of your article is itself flawed. Whether it is a rape or any crime, it is always the victim who has to be on trial, not the accused. Perhaps the most important and oldest convention of any criminal justice system has been “innocent until proven guilty beyond reasonable doubt”. Those are not merely words to cherish about. They are meant to be applied strictly in every criminal case. EVERY. Notwithstanding the heinous nature of rape and its impact on the victims, their families etc., no court can possibly do away with the aforesaid rule. Because it is if often difficult to prove commission of rape by direct evidence, sole testimony and circumstantial evidence is often admitted. However, to say that one should simply presume guilt even before it has been proved is simply unacceptable.I must say the title of the piece is really interesting as well as contradictory. How can “rapists” be on trial? You have already declared them rapists. Where is the need left for a trial!!!
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