Scores of bail petitions are granted and rejected on a daily basis. What could have been one such easily missed order has come under scrutiny. In an order granting bail to a rape accused, a judge of the High Court of Karnataka has made an observation that the account of the complainant that she was tired and fell asleep after the perpetration of the act, ‘is unbecoming of an Indian woman’ and that ‘that is not the way our women react when they are ravished’.
At a fundamental level, a sitting High Court judge typecasting victims of sexual assault and their reaction, belittling those who don’t fit his image of an ‘ideal victim’, reeks of ignorance and a deeply entrenched patriarchal mindset. Seen in any light, this order leaves a bitter aftertaste of disappointment in the entire criminal justice system, from which victims have come to expect no better.
This piece, however, seeks to move beyond the obvious, and deliberate upon the procedural and sociological problems that manifest through these remarks.
Is a judge right in making such an observation in a bail petition, especially at the pre-trial stage, which could prejudice the prosecution’s case? Is this situation reflective of a deliberate obliviousness to the actual workings of our criminal justice system?
The FIR (first information report) states that the complainant became acquainted with the accused in 2017 when he started working in her employ and gained her trust. It states that on the night in question, he insisted on meeting her, got into her car where he consumed alcohol, forcibly got her drunk at the office and had sexual intercourse with her. The FIR also says that due to exhaustion, she slept till the next morning, and then the accused intimidated her against complaining to the police.
On the contrary, the accused, in his bail petition, states that he is ready to marry the complainant and that her ‘false’ complaint arising from misunderstandings between them have been resolved. He also produced a letter, said to be written by the complainant, showing her willingness to withdraw the complaint.
At a stage where the accused is only seeking to be released on bail, the judge appears to have arrived at various conclusions on the merits of the case, picking and choosing statements from the FIR. It is not unknown for police personnel taking victim statements to often omit or misstate seemingly innocuous details. Therefore, an FIR is supposed to be seen as just that – a “first” report of information. It is expected that thereafter, the police will conduct an investigation to gather evidence in a timely manner and uncover the truth.
However, here, the judge has not only made unnecessary conclusive remarks based on the FIR, but has also taken it upon himself to conduct a plausibility test of the complainant's statements vis-a-vis unverified documents produced by the accused. The judge discredits the complainant’s version of events by referring to the ‘compromise letter’, which the Sessions Court, in its order rejecting bail, has specifically observed to be ‘...silent about the date and whom it has been addressed to’.
Such an approach by the High Court judge is extremely problematic given that the Supreme Court has time and again cautioned courts dealing with bail applications not to examine evidence or give detailed reasons upon merits of the case, which may prejudice the accused or the prosecution. While it is necessary to give reasons for concluding why bail is granted when the accused is charged with serious offences, any conclusive or even speculative remarks can be damaging to the prospects of a fair trial. Disparaging statements as to a complainant’s credibility, especially by a higher court, put the prosecution on the back foot.
During bail hearings, the lawyer appointed by an accused has the opportunity to draw attention to microscopic details in favour of the accused. Ironically, a complainant does not always get the same opportunity to make out a prima facie case. She is constrained to put her faith in preliminary records and the prosecutor, who, in most cases only notionally opposes bail.
This puts the court at a serious disadvantage of not being able to appreciate the victim’s narrative at a pre-trial stage in a bail hearing, and is forced to place reliance on (sometimes crudely written) FIRs.
One of the choicest reasons listed by the High Court judge for disbelieving the complainant is that she had known the accused for years, having even employed his services.
The National Crime Records Bureau’s Annual Report (2018) shows that in 93.9% of the reported cases, rapes were committed by someone known to the victim. It is such arguments that can be made at a full-fledged trial, which the court is deprived the benefit of, at the stage of a bail hearing.
On the question of whether a victim should be heard before the court grants bail to the accused, the law at present only permits certain victims to be heard at the stage of bail, that is, minors, as per section 439 (1-A) of Code of Criminal Procedure [inserted by the Criminal Law (Amendment) Act, 2018]. It is also for this reason that the court needs to exercise greater caution before making observations on merits since neither the complainant nor the prosecutor is equipped to refute the statements made by the accused at this stage.
Every person reacts differently to any given situation and it is no different when it comes to sexual assault. Some women may resist, some may fight the attacker, some may scream for help, and some may freeze in response to an assault.
A survivor’s history and circumstances determine her/his reaction as much as the perpetrator’s advantages in terms of physical strength, the element of surprise, desolate surroundings and any number of such factors.
Dr Emily Nagoski, PhD, Sex Educator, Author, Researcher, Activist, in her book Come As You Are, writes: “Sexual violence often doesn’t look like what we think of as ‘violence’ – only rarely is there a gun or knife; often there isn’t even “aggression” as we typically think of it. There is coercion and the removal of the targeted person’s choice about what will happen next. Survivors don’t “fight” because the threat is too immediate and inescapable; their bodies choose “freeze” because it is the stress response that maximizes the chances of staying alive or of dying without pain. Each person’s experience of survival is unique, but it often includes a kind of disengaged unreality.”
When a survivor of sexual violence does come forward, it is almost reflexive to offer hindsight wisdom and even question her reaction or ask why she did or didn’t do something else. At the risk of equating ‘Indian’ identity to a Hindu one, the questions that beg answers are: Should all women being abducted behave like Sita? Should all women being molested behave like Draupadi? Should all women being duped into having sexual intercourse with a man who is not their husband, behave like Ahalya? Is there a handbook for ‘Indian’ women, prescribing appropriate reactions to violent situations?
Callous statements about the mental state of survivors of sexual assault are deplorable, coming from anyone, let alone from those we turn to for justice.
We, the women of India, can only hope that in future, the judiciary is driven by its mandate to do justice rather than perpetuating archaic notions of an ideal Indian woman.
Views expressed are authors' own.
Deepika Kinhal is a senior resident fellow at Vidhi Centre for Legal Policy, and Sindhu V is a practising advocate.