FIRST PLACE ARTICLE: The author, Himali Sylvester, is a third year student at St. Joseph's College of Law, Bengaluru.
This article seeks to point out the inherent biases that are present in the Indian judicial thought-process while adjudicating upon matters concerning women, which obscures a woman’s fair access to justice, especially when she is a victim of rape and sexual assault. Decisively, the paper points out that the only way to give women their fair share of justiciable legal recourse, is to educate judges to be socially sensitive.
As the convicts in the Nirbhaya rape case marched to the gallows on 20th March, 2020, the entire Indian nation basked in glory, noting the execution as a ‘historical moment in securing justice for women’. This celebrated moment for many legal scholars was only a Pandora box, as many believed that Nirbhaya is one among the very few victims of rape and sexual assault whose miseries meet the ends of justice. Many sexual miseries go unheard and stories of victims are buried by executive and judicial agencies much before they reach the public ears. Even those stories that reach the public, do not always end up receiving their fair legal recourse. The fact that many do not receive the justice they deserve, unleashes an inherent problem in the judicial system. The problem lies in the judiciary’s thought-process. A plethora of judicial pronouncements have indicated the engraved patriarchy and misogyny in judicial thought processes, while adjudging matters concerning women, particularly of women who are victims of sexual crimes. Such thought processes can be broadly classified into 4 categories:
Prior intimacy being used invariably by Judges to disbelieve victims
Consumption of alcohol used against the victim to discount her credibility
Using resistance as an over-arching criteria to determine rape
Inordinate and irrational emphasis on a woman’s chastity, honour and values
A. Prior Intimacy Being Used Invariably by Judges to Disbelieve Victims
In numerous judicial precedents, prior sexual contact with the accused is used by the judiciary to believe the accused more than the victim. Even in the face of over-whelming evidence, a woman’s story of rape or sexual assault is easily disbelieved by proving that she was in a prior consensual sexual relationship with the accused. It all boils down to the idea that, if a woman consents to sexual intercourse once, it means that she consents to all subsequent sexual contacts. This inherent stereotype is apparent in the ratio decidendi laid down in the case of Raja v. State of Karnataka , where the Hon’ble Supreme Court overturned the conviction of the High Court of Karnataka, acquitting the miscreants who had been convicted for gang rape. The ratio decidendi read as follows ‘PW 8, who medically examined her, opined in clear terms that she was accustomed to sexual intercourse and that no sign of forcible intercourse was discernible’.
The phrase ‘accustomed to sexual intercourse’ holds pertinent significance here, because the judges believed that her previous sexual experience was a determining factor in ascertaining her credibility in a case of alleged gang-rape. In legal parlance, one could say that her previously consented sexual ordeals were used to establish the ‘presumption of consent’ i.e. a one-time consent presumably misconceived as perpetual consent. Such is a gross violation of a woman’s bodily integrity and her ‘right to life and personal dignity’ as under Article 21 of the Indian constitution. Additionally, there is a substantial violation of ‘freedom of speech and expression’ under Article 19 as freedom to express consent is also a concomitant of Article 19.
The same is deducible in the case of Vikas Garg v. State of Haryana , a case of sexual black-mailing and rape wherein the accused persons were acquitted, as the Punjab and Haryana High Court held that ‘the testimony of the victim does offer an alternate story of casual relationship with her friends, acquaintances, adventurism and experimentation in sexual encounter and therefore these factors would offer compelling reasons to consider the prayer for suspension of sentence’. A decision of this nature was made even after statistics suggest that 86% of rapes are committed by people known to the victim. These precedents grant an unfair advantage to violators who are close to the victim and jeopardize a victim’s ‘right to equality’ as postulated under Article 14, in addition to violating her right to personal liberty.
B. Consumption of Alcohol Used Against the Victim to Discount her Credibility
In a number of occasions the judiciary has been rather erroneous when victims have been raped and assaulted while under the influence of alcohol. It is not uncommon to observe judges in courts interrogating as ‘who asked you to drink?’ as though drinking is a male reserve and that if a woman drinks, she is calling to be raped or more so that, any sexual encounter in an inebriated state should be consensual. One of the most recent judgements in this regard is Justice Dixit’s, Rakesh v. State of Karnataka  wherein bail was granted to the accused and his Lordship while establishing the premise for bail, contended that ‘she (prosecutrix) has not objected to consuming drinks with the accused’. The mere fact that the prosecutrix had consumed alcohol with the accused was enough to doubt her testimony and destroy her credibility.
Moreover, in cases where the victim had consumed alcohol before the assault, she is put on trial like she is the accused and answerable for consuming alcohol. Her personal choice of drinking what she likes and wants, is undermined and extinguished. The consent of a woman is belittled and subdued, once again violating her freedom to express consent and her right to bodily autonomy.
C. Using Resistance as an Over-arching Criteria to Determine Rape
Section 375 of the Indian Penal Code enumerates an imperative proviso which specifies that a woman who does not physically resist to the act of penetration shall not be equated to someone who consents to the act. Despite a legislative sanction in a matter pertaining to resistance by the victim, the judiciary has turned a blind eye to the principle of ‘lack of resistance does not tantamount to consent’. For a victim of rape or sexual assault, is slightly easier to comply with the assaulter than to resist the act, as compliance would prevent additional physical injury and trauma. However, very insensitively, courts have used this weakness of a victim as a strong defense in favor of the rapists to justify their egregious conduct.
Nothing better can supplement the above argument than the case of Mahmood Farooqui v. State  where the Court untenably remarked, ‘by making a mental move of feigning orgasm so as to end the ordeal, what the appellant has been communicated is, even though wrongly and mistakenly, that the prosecutrix is okay with it and has participated in the act (para 82).’ Faking of an orgasm to end the trauma has been assumed by the Hon’ble court as consent, reiterating the frivolous ‘lack of resistance’ argument which holds no legislative backing. An observation of this sort was put forward by the court even after the prosecutrix in her cross-examination justified her lack of resistance by recollecting the barbaric words of the Nirbhaya convicts who said that Nirbhaya might have lived, had she not resisted. Yet, the judiciary found it convenient to acquit the accused, Farooqui,, just because the victim’s ‘lack of willingness’ was not apparent through her conduct and facial expressions.
The Farooqui judgement has failed criminal law on another essential level. A cardinal tenet of criminal law, is burden of proof, which always lies on the prosecution. However, once the proof is admitted by the court, it is for the defendants to demonstrate that such evidence is inadmissible. In the Farooqui case, the court admitted the evidence that there was a lack of consent but the defense instead of proving that there was consent, simply, held that the accused was unable to read her facial expressions and hence, could not discern if it was consent or not. Since the victim did not express her unwillingness in words, it was presumed to be consent. The case in its entirety defies the basic principles of criminal law and completely banishes a woman’s constitutional rights.
D. Inordinate and Irrational Emphasis on a Woman’s Chastity, Honour and Values
Too often, in cases concerning rape, a woman’s virtue is brought to light to establish whether she could have been raped or not. It is not new to come across judgements like in the case of, Rakesh v. State of Karnataka , where the court opined that the woman’s conduct ‘was unbecoming of an Indian woman’. This brings us to the question of ‘what exactly is becoming of an Indian woman?’. Section 155 of the Indian Evidence Act, previously used a woman’s morality as proof to establish the crime of rape or sexual assault. Such a preposterous provision was done away with, after the 2003 Amendment to Criminal Law. This shows that opinions and decisions as propounded in cases like Rakesh’s , are violative of statutory provisions as statutes are very clear about not involving a woman’s ‘morality’ in any case. Not only does it violate a statutory requisite, but such antiquated orbiter dicta subdue the decision in State of Punjab v. Ram Singh , where the court was clear in holding that ‘what matters in a case of rape or sexual assault is whether such act was committed on the victim on the occasion complained of, and nothing else’. In a nutshell, in a case of sexual abuse, only the mensrea and the overt act should matter and nothing else.
Moreover, even in cases where a woman is sympathized for being raped, rape is often perceived as a crime against the society and a dishonor to the woman. It is in this context that a 17-year old victim of rape, Sohaila Abdulali recounts her experience and affirms that ‘rape is not horrible because you lose your virtue. It is not horrible because your father or brother have been dishonored. It is horrible because you are violated and someone has taken control of your body’ . Rape is a personal violation not a social horror. Most often than not, rape is considered punishable because it is a social crime and not because a woman’s physical integrity has been encroached upon. This judicial mentality further subdues a woman’s personal liberty and dignity. If ‘honour’ is taken out of the equation, rape is still a crime. Judgements have regularly neglected these fundamental aspects.
It is not sheer imagination to believe that the Indian judicial system is innately patriarchal and misogynistic. Gender stereotypes still pervade into the spheres of decision making and subdue the required righteousness in due process of law. The solution to uproot these stereotypes can be observed in the words of Justice Pasayat who said ‘ A socially sensitized judge is a stronger armor in cases of crimes against women than long clauses of penal provisions containing complex exceptions and proviso’ The only solution indeed is to equip our judicial decision-makers to be both rational and sensitive.
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