Friday, December 8, 2023

Blaming the victim

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By Sujit Bhar

When a law is drafted by the legislature, it goes through several instalments of change, rewrite and further change and rewrite. This follows debate and suggestions from members of a dedicated committee, and then, possibly, also of members of Parliament, not to mention experts in the field.

In the end what is placed before Parliament is a Bill, a draft of a document that is supposed to help the citizens in particular and even humanity in general when it becomes law. India has enacted some path-breaking laws, one of which was the Protection of Children from Sexual Offences (POCSO) Act, 2012.

Judges in Indian courts are supposed to follow the law laid down and issue verdicts according to the prescribed norms of the document. Interpretation of this document is allowed within restrictions.

Then there is the issue of precedents. The Supreme Court of India has often emphasized the “essentials and principles of ‘Precedent’ and of stare decisis (in Latin, it means ‘to stand by things decided’) which are a cardinal feature of the hierarchical character of all Common Law judicial systems.”

The doctrine of Precedent mandates that “an exposition of law must be followed and applied even by coordinate or coequal benches and certainly by all smaller benches and subordinate courts.” This means that lower courts and a later bench “has no freedom other than to apply the law laid down by the earlier and larger bench, that is the law which is said to hold the field.”

Apart from Article 141 (which states that the law declared by the Supreme Court shall be binding on all courts within the territory of India), it is a policy of the courts to stand by precedent and not to disturb a settled point.

That being said, the top court has also made a further clarification. Justice Hemant Gupta of the Supreme Court has made it clear that courts can “declare and interpret law, remove obvious lacunae and fill up the gaps, but they cannot entrench upon in the field of legislation.” In doing this, Justice Gupta was stressing on the doctrine of separation of powers, but his statement also made it abundantly clear that judges’ personal views weren’t welcome in a verdict.


The POCSO Act was a piece of legislation that was welcomed by all—especially with the memory of the horrific rape and murder in New Delhi. This was an Act that, for the first time, set in stone a comprehensive and graded definition of sexual assault against children. The Act defines a range of penetrative and non-penetrative sexual assaults and stipulates penal provisions for the same. The Act is specifically against sexual assault experienced by children, including boys and trans-persons under the age of 18.

The Act was deemed so path-breaking that the Indian Penal Code Sections 375 (defining rape), 376 (providing punishment for rape) and 354 (providing definitions and penal provisions for sexual harassment) were amended in 2013.

That is where India stood, vis-à-vis its juridical principles, or at least the country thought so.

Without comment

In this context, here is a recent verdict by Special Judge KC Sadanandswami of a Karnataka Sessions Court, placed without comment.

The judge in question has acquitted seven men accused of raping a minor, just because, as the judge felt, the rape victim’s conduct cast doubts on her story. While the case was about seven men who were accused of raping a minor girl 12 years ago, the judge let the seven men go scotfree, because he felt the girl’s behaviour was “unnatural and grossly against normal human conduct.”

The case (The State of Karnataka vs Santhosha and Ors) can be quoted in reference in future. Read this part of the verdict:

“I do agreed (sic) principles laid down in the said decisions in respect of observation made in the judgments that prosecutrix was not helpless in seeking assistance of other persons to gain her freedom. The behavior (sic) of PW-1 is un-natural and grossly against normal human conduct that itself is strong circumstance in doubting the story projected by him. Two views can be possible, one that leads to acquittal and other to conviction. The court must rule in favour of accused. The prosecutrix and acc­used No.1 went on moving from one place to another place by using public conveyances and came in contact with public. She also stated to have stayed in house of one person for two to three days. No evidence of victim that she was kept under confinement during relevant time or threatened in any manner by accused. Victim never disclosed about incident to anybody nor sought for anybody’s help during relevant period. PW-1 is well built girl would not raise any resistance to forceful sexual intercourse. If really resistance is there, there would have been injury marks.”

The hearings have been lengthy, on a charge-sheet, prepared and placed before the court by the IO-DySP, Holenarasipura Sub-Division that says:

“It is alleged in complaint, FIR and police records that complainant was studying in SSLC in Government Girls College, Holenarasipura. About 8 months back, accused No.1 used to visit to house of accused No.3. The house is located adjacent to complainant’s house. Accused No.3, 5 and 6 have introduced complainant to accused No. 1. Accused No. 3, 5 and 6 have pressurized complainant to love with accused No. 1, otherwise, they are going to kill her. On 25-05-2011 at about 2-00 p.m., accused persons have confined complainant in one room. Accused No.1 has forcibly committed sexual intercourse upon complainant.”

That was how clearly the facts were placed by the police. The victim belongs to a Scheduled Caste community. The FIR was registered under Sections 506 (criminal intimidation), 376 (rape), 366[A] (procuration of minor girl) and 114 (abettor present when offence is committed) read with Section 34 (common intention) of Indian Penal Code and Section 3(2)(5) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.

It has also to be remembered that the Court concluded that “…pancha witnesses had deposed contrary to their own statements”, so they were ruled to have turned hostile. The girl was left fending for her own and then her last resort also goes.

It is not clear from the Court’s observations what type of “behaviour” was the girl supposed to exhibit before the Court. It is not clear what would be “natural”.

The rape issue

In case there was an assumption that sex was consensual, one must remember that the very purpose of defining “child” under POCSO, and of the provision under Section 375 of the IPC (sexual intercourse, whether with or without her consent, is rape if she is under 18 years of age), is to safeguard children against penetrative sexual assault irrespective of their consent.

A rape has occurred on a minor and the law should have taken its course. The interpretation was probably beyond the jurisdiction of this special judge. All seven adults are out, and the onus of proving their guilt suddenly falls on the victim.

All this is placed without comment.

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