Patriarchy, Misogyny and Sexual Assault: Women and the Courts – In Conversation With Navroz Seervai

In Conversation With Senior Advocate Narvoz H Seervai, Bombay High Court on the issue of “Patriarchy, Misogyny & Sexual Assault: Women And The Courts” moderated by Advocate Gulnar Mistry.

Gulnar Mistry: Hello everyone, and welcome to this Webinar organized by LiveLaw. Through this conversation, we will discuss how patriarchal notions manifest themselves in cases that concern sexual assault, and rape specifically. We’ll also touch upon what that means for women’s constitutional rights. I am speaking this evening to Navroz Seervai, who is a Senior Advocate of the Bombay High Court and is one of the leading practitioners of Constitutional Law. This conversation will last approximately an hour and then we’ll go to a brief Q&A session so if you have any questions, please leave them  in the Q&A box on the platform and I’ll get to them after this.

Before I get into the subject under discussion, I think that it is necessary to address some concerns that have been raised about why a webinar on patriarchy and misogyny in any context is being headlined by a man. I have a few things to say about this. I agree wholeheartedly with the idea that women are best suited to address issues that vitally concern them—women’s voices should be heard, and should be amplified. However, I think that for too long the difficult problems that we have come to call “women’s issues” have been addressed largely by women alone. There is, in some circles, this idea that women’s issues are for women to care about and for women to talk about, and it’s really not something that concerns men. I reject that idea. I believe that anyone who is right-thinking, who is fair-minded and who believes that we can make a better system and a better world should be a part of the conversation, and I think that it is time that men started actively talking about systemic problems that women have been talking about for years. Not because a man’s voice will give women’s issues any added legitimacy—we do don’t need that—but because the issues themselves deserve to be addressed through every conceivable avenue and by every possible advocate. That is why I am here today, speaking with a male ally. I hope and trust that this is only the first of many such conversations that will feature voices of women and of men, and will also address issues of caste and class that sometimes remain unaddressed.

Now before I turn to Navroz with particular questions, I just want to contextualise the discussion that we will be having today. In a recent order, a Single Judge of the Karnataka High Court considered a bail application made by a man accused of committing rape on a false promise to marry. While granting bail the Judge observed that the allegations made by the Complainant were difficult to believe, and that the Complainant did not object to having a drink with the man and even let him stay with her until the morning. The Judge added that the explanation offered by the Complainant for this behavior, which is that she was tired and fell asleep, was I quote “unbecoming of an Indian woman. That is not the way our women react when they are ravished”. It is this part of the Order that has rightly come in for a great amount of criticism. These observations have since been expunged, but what we are here to talk about today is why they were ever made in the first place and what that says about the system.

Cases of sexual assault including and especially rape are historically underreported; the ones that are reported reveal some important statistics. According to numbers published by the National Crimes Record Bureau, 33,356 cases of rape were reported in India in 2018. Out of these, 31,320 were committed by someone known to the victim. So when you do the math, 94% of all rape cases that year were committed by someone the victim knew. This is a pattern that has been noticed in years before as well, but a review of some decisions appears to suggest that acquaintance rape is not really seen as rape at all. And of course marital rape remains an exception to the crime entirely.

The adjudication of rape trials in general is consistent with rape myths and with patriarchal ideas about how Indian women view their own self-worth. This results in a prescriptive list of conditions that a victim must fulfill if her testimony is to be credible. Even in cases where the complaint results in a conviction, we find that the crime of rape is typified as one that robs a woman of her much valued chastity and honor, rather than one that violates her bodily integrity and autonomy. Even though compliance is often safer than resistance, judicial decision-making has virtually created a requirement of self-defense which is unique to this crime. This is despite the fact that India has, through legislation, abandoned the requirement of resistance and adopted the requirement of consent. The phrase “habituated to sex” is one that is also found often in judicial decisions and prior sexual history tends to impact the complainant’s credibility. In short, the system burdens the victim with the responsibility of fending off sexual assault.

Rape is the only crime where a complainant’s past behavior, her actions during the crime and her reaction to it are all key factors in the result. This is by no means an Indian problem. In her 1983 study on rape cases at the Old Bailey Courts, ZSuzsanna Adler concluded that a believable rape victim would have to meet four tests:she would have to have been raped by a stranger; she would have to have resisted the assault and therefore suffered injuries; she would also have to be sexually inexperienced; and she should have had what society views as a “respectable” life. If two of these factors were present, the conviction rate was 33%. Three factors took it to 72%. The absence of any of these factors guaranteed an acquittal. The presence of all factors would likely result in a conviction. I hazard to say that outside of a few notable exceptions, even in 2020, a similar analysis of Indian cases will likely yield a similar result. That is what we are here to talk about today.

Navroz, welcome and thank you for speaking with me.

Navroz Seervai: Thank you, and I would like to thank LiveLaw as well, for organizing this seminar on a subject that is close to my heart and which in fact I thought requires to be dealt with. It is a pleasure.

Gulnar Mistry: Right, so I’ll get straight into it. There have been some important legislative changes over the last few years. Most notably after the Delhi Gang Rape case of December 2012. Now since 2003, prior sexual history has been rendered irrelevant by the repeal of section 155(4) of the Evidence Act and after 2013, the absence of physical resistance cannot be regarded as consent. But we still see judgments like Raja vs Karnataka in 2016, where the Supreme Court says that “the victim’s conduct was unlike a victim of forcible rape and betrays a submissive and consensual disposition”. They also say that she was “accustomed to sexual intercourse” on the basis of a medical exam. We have also seen something somewhat similar, in the Farooqi case in 2017 where the Delhi High Court said that “in some instances, it may be difficult to say that there was a lack of consent when there is little or no resistance” and “sometimes a feeble no may mean yes”. Now, changes in statutory provisions appear not to have altered the way evidence is parsed and appreciated in rape cases. What according to you are the most worrying value judgments and gendered notions that we see in cases like the latest one from the Karnataka High Court?

Navroz Seervai: So Gulnar, this is a good point; it’s an important point, and I think it’s a good place to start this discussion.  I really think that these value judgments and notions of gender which probably are at the very heart of this entire problem, with a deeply patriarchal judicial system judging women who’ve been raped or sexually assaulted can be broken down into four or five main areas, each of which – I’m sorry to say – is highly problematic. I say this because each of these taken individually or in a combination of two or more,  runs like a persistent thread through many of the judgments I have read. This can be seen from judgments delivered before the various amendments which were effected in 2003 and 2013 to the IPC, CrPC and the Evidence Act, as also thereafter.  These value judgments, which are so clearly ingeminated into cases of rape and sexual assault, are broadly as follow.

Prior intimacy or familiarity with the accused is used by judges almost invariably to somehow disbelieve a victim and her  accusation of rape, even in the face of overwhelming evidence. And this is all the more so if the victim has had prior consensual sexual relations with the accused. It’s as if the judge, with his notions of womanhood, can’t  imagine that a family member, a friend, an acquaintance can commit rape. This patriarchal, male-oriented notion of a woman’s right to sexual autonomy and to her body, has vitiated many a judgment. You mentioned Raja and it’s a particularly egregious case. In Raja, despite the victim being kidnapped and raped, in fact gang-raped, the Supreme Court reversed the finding of the High Court convicting the accused. Not only did the Supreme Court completely disregard the legislative amendments that came after Nirbhaya but made it a point of holding it against the victim that she was acquainted with the accused and didn’t mention it. Similarly, in an equally egregious case coming up from the Punjab and Haryana High Court, namely Vikas Garg, the Punjab and Haryana High Court held it against the victim (a young student at Jindal) that those whom she accused not only of rape but of sexual blackmail were fellow students known to her and with whom she had social relations. And the most egregious of all the cases that I have read,  is  the Delhi High Court judgment in the case of Farooqi. And last but not least, the order in Rakesh vs Karnataka  because of which  we are all here today. So this is the first of the value judgements.

The second is a gender notion, which at least to me is astonishing. The consumption of alcohol by a woman is enough to lead judges, time and again, to discount an accusation of rape or sexual assault. It’s as though  if a woman drinks then she deserves what she gets—being raped. And you can almost hear the judge subliminally saying, “Who asked her to drink?” Drinking is the sole  preserve  of men, and if a woman strays into that male preserve then she can’t blame  a man for raping her.” In short, it’s as if she has lost the protection of the law. Equally scandalous is  the alternate assumption,(of course completely ill-founded) that if a woman has had alcohol with a man and then had sex with him, it has to be consensual. So you find this shocking assumption in Garg, Farooki and Rakesh to only mention a few judgments. Consumption of alcohol by the victim is held against her. But  just look at the injustice of this , because it’s often linked to the first point I made—its as if the judge did not realize that most people drink with friends and acquaintances.

Here we begin to see the most troubling part of this larger picture– the victim, conveniently from the standpoint of the accused men, becomes the accused; and whether it’s a defense lawyer or whether it’s the judge, the victim is put on trial, not the men who raped her. And this is what discloses most clearly  the patriarchy, the misogyny, and I would add the hypocrisy, of the whole system at its worst.

Now, even more shockingly, this is also to be found at an appellate stage. At an interlocutory stage, even when a woman has somehow surmounted all the hurdles in the Sessions Court and got a conviction for rape. Vikas Garg is a case in point. In Vikas Garg, the judges showed their true colors, using friendship and alcohol against the victim. They arrived at outrageous assumptions of consent to belittle the woman and almost disbelieve her case at an interlocutory stage of an appeal. But of course their hearts bled for the rapists—“young bright men” they call them, with a great future in life, who therefore should not rot in jail. So we have a lecture on the reformative theory of justice and punishment and the men are released. On the other hand, totally insensitive language is used against the victim. The judges show no understanding of what it is for a woman to be sexually blackmailed. No sympathy is shown to the woman who has been sexually assaulted, abused and blackmailed. But, and I quote, “it is a travesty if young minds (of course, male minds) are allowed to rot in jail”. So that’s the second value judgment.

The third, is an obsessive insistence  that the charge of rape can be proved only if the woman has fought back, suffering injuries sufficient to establish absence of consent. Now this is despite it  being clearly counterproductive to the woman, fraught with danger to her body to the extent of endangering her life. And this is despite the proviso to section 375 that was introduced by way of an amendment. I quote:  “Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.” Yet, whether it’s the Supreme Court in Raja, the Delhi High Court in Farooqi, the Punjab Haryana High Court in Garg and the Karnataka High Court in Rakesh, it is held against each of the victims that she didn’t resist.

Here possibly the most shocking judgment is that of the Supreme Court in Raja. Consider this from the Supreme Court in 2016, and note the notions of womanhood intruding even in a short paragraph which I want to quote: “PW1s conduct during the alleged ordeal, is also unlike a victim of forcible rape and betrays a somewhat submissive and consensual disposition. From the nature of the exchanges between her and the accused persons, as narrated by her,  the same are not at all consistent with those of an unwilling, terrified and anguished victim of forcible intercourse,if judged by the normal human conduct.” And then you get this: “…she did not scream or cry for help. This is of utmost significance as it is not alleged by her that the abductors had put her under fear on the point of any weapon threatening physical injury thereby”.

I think one could write an essay on the misogyny so evident  from these few sentences. Now just consider this—“alleged ordeal”? The High Court had convicted the rapist abductors. “Normal human conduct” according to whose likes? Men speaking as if half  the population doesn’t exist. What do they know, given their antiquated stereotyped notions of “normal human conduct”  when it comes to a woman—- let alone women who has been raped or gang-raped as in the case before them..

And this feeds into the fourth common gender notion, the inordinate and irrational emphasis on a woman’s chastity and virtue; honor and dishonor; and how this impacts her conduct, both before, during and after the rape/ sexual assault. To make it worse this is also manifest from the derogatory, demeaning and insensitive language used in judgment after judgment. This is so common that it intrudes into judgments irrespective of the result. The most recent example of such obnoxious comments of course are those  of Justice Dikshit in Rakesh. But here I would like to  refer  to the Verma Committee Report, for in two short paragraphs, it calls out all that is wrong with this  approach to rape and sexual assault.  I quote: “An offense against a person is very different from an offense against the community. We think that there has been a completely erroneous connection, which has been made between a woman and a community. In other words, we feel very strongly that an assault on a woman is an assault on the person of the woman. In this regard, we would like to quote Sohaila Abdulali, a rape victim who recounts her experience, which took place 32 years ago in Mumbai, “Rape is horrible but it is not horrible for all the reasons that have been drilled into the heads of Indian women. It is horrible because you are violated, you are scared someone else takes control of your body and hurts you in the most intimate way. It is not horrible because you lose your ‘virtue’. It is not horrible because your father and your brother are dishonored. I reject the notion that my virtue is located in my vagina, just as I reject the notion that men’s brains are in their genitals. If we take honor out of the equation, rape will still be horrible but it will be a personal not a societal horror. We will be able to give to women who have been assaulted, what they truly need. Not a load of rubbish about how they should feel guilty or ashamed but empathy for going through a terrible trauma”.

And the Verma Committee  commented, “We wish to take this point further. When a woman complains of rape it is not the physical part of the woman which is directly the focus of attention. It is the offense and the offense against the bodily integrity of the woman as a person, which is the offense in question. We therefore think that we need a woman to be viewed as a whole and not as a physical center of sexual congress. At the same time, it must not be viewed that a woman while making a complaint is in any way acting less honorably or in any way disturbing what is considered as the repository of honor of the family community or society.”

I notice that  this attitude intrudes even into good judgments and there are two such both delivered by Justice Pasayat  in 2004. Regrettably, even though the judgment of Justice Pasayat in State v. Sri Kant Shikhari is an affirmation of the right of the rape victim, the language used discloses an outdated and outmoded mindset. Despite the Verma Committee Report (subsequently) reiterating, that rape has nothing to do with the community, the Supreme Court says the exact opposite. I quote “Rape is not only a crime against a woman; it is a crime against the entire society”. I am sorry to say that to me at least it is almost as if the court is saying “but for this we wouldn’t view the matter seriously.” The court falls into the same error in the second judgment of Justice Pasayat, which is Punjab v. Ramdev, by using similar language. I must however acknowledge at this stage itself, that this judgment is otherwise a very good judgment, one of the few good judgments because it asserts two important principles. It asserts that previous sexual experience is irrelevant. To that extent it follows the 2003 amendment, ie. the deletion of subsection (4) of s.155. Most importantly, it states that the only question for a court to consider is did the accused commit rape on the victim on the occasion complained of. Nothing else is relevant, let alone of any importance. So to conclude, I would say these are four of the most persistent value judgments that I found running through all these judgments.

Gulnar Mistry: To take off from what you mentioned, which is that even when the courts find that the accused is guilty judgments are still premised on the notion of the ideal victim—we’re back to that old chestnut about whether there were signs of physical and emotional trauma after the event, and sometimes even while leading evidence. Women who demonstrate these signs are seen as being more credible than someone who did not fight back, or had a more restrained response. That’s pretty amazing, because not every woman relates to any circumstance the same way and yet you have these boxes that  must be checked if you are to be believed. I think that it’s particularly problematic when women are expected to physically resist and fight back because often it means more grievous harm, possibly death. So my next question is really two questions: the first is, would it be an exaggeration to say that these prescriptive standards do not just undermine the judicial process but seem to subvert it? And my second question, which is allied with the first, is that if it is subverted then what does that mean for women’s constitutional rights to full personhood and autonomy?

Navroz Seervai: That’s a good point. I very briefly touched on it when dealing with the first issue but to turn straight away to your first question, it takes us to the vexed question—what do you do with judges who deliberately ignore statutory mandate, or worse,subvert it ? The law on the subject and some of the cases we’ve been discussing exemplifies this, and nothing more starkly than the manner in which the judges disregard the deletion of section 155  (4) of the Evidence Act.

Now that subsection provided that in a  prosecution for rape, or an attempt to ravish, it may be shown that the prosecutrix is of a generally immoral character. To me, the fact that such a provision survived through the 20th century is itself a disgrace. Finally however, in 2003, Parliament was somehow persuaded to repeal this subsection. Yet what do we find when we read  judgments? Disgraceful judgments of various High Courts and the Supreme Court post-2003, constantly harping on a woman’s previous sexual history and using outdated derogatory language about a woman who’s had consensual sexual intercourse with men. If that is not subverting the law, to the immeasurable harm and prejudice of a rape  victim, I don’t know what is.

But the same is equally true of the proviso to section 375 pertaining to consent and not resisting  to which I have referred earlier. Now, as an aside, I have never read a judgment referring to an alleged rapist or even a convicted rapist as a man of “easy virtue”, or  “loose  morals”,or  “generally immoral character”. So I ask myself, is this a coincidence? Is it pure oversight on the part of all these judges or is it a manifestation of a deep-rooted sense of male superiority in a society founded on patriarchy? And perhaps the most glaring example of this is the judgment in Farooqi. I want to deal with it briefly. Apart from liberally drawing on all these value judgments that we just discussed, the judgment entirely perverts the salutary amendment to section 375 regarding consent as contained in that proviso. Now what are the facts? The judgment records that the victim said “no” and gives a push to her rapist. While he is trying to remove her underwear she is constantly trying to pull her underwear up to prevent being raped. Consent? You would think anyone familiar with what the Supreme Court in Raja called “normal human conduct” would say “no! that can’t be consent!”.

As if this isn’t enough, the following facts are admitted.  1) There was forced oral sex. 2) The accused contemporaneously in an email to the victim admitted to forced oral sex and had apologized for the act without the victim’s consent and against her will. 3) The judge comes to a finding that the prosecutrix met the high and exacting standard of what is called a “sterling witness”. 4), In his original defense at trial the accused had not pleaded an alternative case of consent. Shockingly, and contrary to precedent of the Supreme Court, all of which were of course conveniently distinguished by the judge, the High Court allowed this new plea to be taken. Now with all this one would have thought this is enough to uphold the conviction of the clearest case of rape. But think again. In a breathtaking feat of intellectual jugglery, the convicted rapist is found not to be a rapist. How do we arrive at this conclusion? The first step in this construct is to say that though the prosecutrix having said no “ultimately goes along.” In her mind she remembers the case of Nirbhaya and the fact that had she not resisted she would not have been killed. But, says the judge, and  I quote: “There is no communication regarding this fear in the mind of the prosecutrix to the Appellant,. The prosecutrix makes a mental move of feigning an orgasm so as to end the ordeal. What the appellant, (that is the rapist,) has been communicated is, even though wrongly and mistakenly, that the prosecutrix is “okay” with it, and has participated in the act. The appellant had no opportunity to know that there was an element of fear in the mind of the prosecutrix forcing her to go along.” Have we entered the world of Franz Kafka or Dostoevsky? And so this judgment goes on and on till we reach the end—the ultimate insult and humiliation heaped on the victim, who by now of course has become the accused. So the judgment ends with these words “But it remains in doubt as to whether such an incident, as has been narrated by the prosecutrix, took place and if at all it had taken place, it was without the consent/ will of the prosecutrix, and if it was without the consent of the prosecutrix, whether the appellant could discern or understand the same?”

So these are the sort of judgments that we’ve got; and while I’ve dwelt on Farooqi because it’s the best example of a judge subverting the legislative changes, judgment after judgment does exactly the same. So that’s the answer to the first of those questions.

Now we come to the second. I want to touch on the issue of burden of proof, before I actually come to the question of the constitutional aspect. This  is unique to rape cases, and the reason I am referring to burden of proof,  is because it’s linked to something I’ve already adverted to.  It is this, which goes a long way to convert the accuser into the accused; and is fertile ground for making the accused rapist ,the accuser. And I want to deal with this aspect of burden of proof and consent, not in my own words, but by referring to an excellent article published in 1993 in the University of Pennsylvania Law Review entitled “Read Her Lips: An Argument for a Verbal Consent Standard in Rape” by Lanny Anne Remick. I’ll just read the relevant paragraph: “In every state but one, the prosecution’s failure to prove victim non-consent will result in an acquittal. The law thus creates what is in effect a legal presumption of female consent to sexual activity. Now standing alone such a presumption is inoffensive, it can be viewed as merely effectuating the constitutional guarantee of a presumption of innocence and reflecting the fact that the majority of sexual interaction is consensual. It is the combination of this presumption with judicial interpretation of the non-consent element that is problematic. Judges have historically held that the burden of proving non-consent is not satisfied by a lack of affirmative consent instead a formative non-consent must be proven.” And then the author says, “Although there are other crimes for which non-consent is an element or consent is a defense, only in rape, is proof of lack of consent insufficient to prove non-consent. A common defense to a charge of auto theft for example, is that the car owner consented to the defendant’s use of the vehicle. A mere showing that the owner never gave the defendant permission to take the car is enough to defeat the defense. No showing that the owner actually told the defendant not to take the car is necessary. In rape law however the default position is consent. Proof of the absence of affirmative indications of consent by the victim is not enough to defeat a consent defense. Instead the prosecution must show that the alleged victim indicated to the defendant through her overt action and or words, that she did not wish to participate in sexual activity… ‘the law presumes that one will not give away that which is his to a robber but makes no similar presumption as to the conduct of a woman and a rapist” .”

Now coming to the constitutional rights, I believe that the law as it stands, and more so as it is administered, makes serious inroads into a woman’s constitutional rights especially under Articles 14 and 21. Her right to the freedom to live her life as she chooses—where she works, how she dresses, what drinks she consumes, who she has social and sexual relations with, are all impinged upon by this subversion of the judicial process and disregard of the legislative changes. It is no coincidence that the Verma Committee dealt with this in some detail in Chapter One of their Report. It asserts the constitutionally guaranteed right of equality for women and says: “We are therefore of the view that gender inequality is contrary to the unifying idea of a sovereign democratic republic”. It further states: “This means that women are entitled not only to equality under Article 14 but are also entitled to the equal protection of the laws. Any offenses which are committed in relation to them should not be tried in a facially compliant manner but in an effective manner so that there is honesty of purpose, integrity of prosecution as well as successful conviction of such offenses for which the State must evolve a dynamic review mechanism.” 

And while the parts I quoted from the Justice Verma Report concentrate on Article 14 and equality, Justice Pasayat in Shikhari (and repeated in Ramdev) has this to say with specific reference to Article 21: “it is a crime against basic human rights and is also violative of the victims most cherished fundamental right, namely the right to life contained in Article 21 of the Constitution. The courts are therefore expected to deal with cases of sexual crime against women with utmost severity. Such cases need to be dealt with sternly and severely.” And then comes a very perceptive observation from the Supreme Court, “A socially sensitized judge in our opinion, is a better statutory armor in cases of crime against women than long clauses of penal provisions containing complex exceptions and provisos.”  I would say in a sense, Justice Pasayat has hit the nail on the head. The 2018 amendments increased jail terms for rape of a minor under 12, for rape of a minor under 16. They introduced new provisions but I would submit that all this is of no avail if the mindset of judges does not change. So I think, that effectively deals with the constitutional aspect; and  I hope I’ve dealt with it adequately.

Gulnar Mistry: We have already discussed briefly the legislative changes that make these particular circumstances irrelevant. So you no longer can introduce, at least under statute it’s no longer relevant, what past sexual history there may be, even of the woman herself independently of the accused in question. Also as you rightly said, the law was amended to say that a woman who does not physically resist shall not be regarded as consenting. But even so this progress on the legislative front hasn’t taken away these particular factors from being put into evidence; even though they are statutorily obsolete you still see them being put into defense. What do you have to say about defense lawyers who appear to undermine these important changes in the law in this fashion?

Navroz Seervai: I know I need to tread on this a little carefully but at the same time I must be quite frank with my own views. My view is  this:, all lawyers, not only defense lawyers in rape cases, have both a professional duty and a moral duty to the Court, to their own client and to their opponent. As a practicing lawyer for 40 years, I have never accepted the “cab rank rule” if it means that a lawyer is entitled to suspend his morality while fulfilling his professional duties. And this is true in all cases—civil, criminal, commercial, arbitration, family, taxation, all cases. I don’t therefore want to suggest that rape cases stand on a different or a higher footing as regards the duty of a lawyer. But that said, I do believe, having now read the judgments after these amendments of 2003 and 2013, that a defense lawyer in a rape case or a case of sexual assault owes a duty to the court, to his opponent and even to his own client not to subvert or circumvent legislation specifically enacted to further the cause of justice. Now the subversion and circumvention by defense lawyers, as you yourself briefly adverted when you mentioned  the deletion of subsection (4) of section 155 of the Evidence Act, and to the proviso to section 375, is particularly objectionable. I say this because it is not objectionable only in itself, but because it is this subversion or circumvention which invariably turns rape trials and those for sexual assault, into a travesty and a perversion of justice. The victim becomes the accused. She is on trial. Alcohol, cigarettes, clothing, the places she goes to and frequents, the people she associates with and those with whom she may have consensual sex are  all brought into the picture and I say that this  is particularly improper, because this reflects not only on the trial and the rape victim. The effect of subverting or circumventing the law leads straight to an attack on the rule of law on which our society is founded, and therefore I believe that whether it’s a rape case, or whether it’s other cases or laws, , defense lawyers in such cases owe a duty to the  court, to the client, to their opponent, and, I would suggest  to society at large, not to deliberately and knowingly subvert or circumvent the law, just because they want to win a case and get their client off the hook. So that’s my answer.

Gulnar Mistry: So the next question I have takes us slightly away from the law as it is today because everything you mentioned does indicate why women don’t often come forward at the first possible opportunity. They are often disbelieved, their life’s choices are scrutinized and as you said twice over now, it’s often the victim who is on trial. What can one do to create a system where women’s complaints of harassment of assault are treated with the seriousness that they deserve? What do you think we can do to make that a reality than it is today?

Navroz Seervai: Well that’s a tough one but what I would say is this: having discussed the problems that we have, we know whom to address. The question is,how? So first and most important I think is to make the dramatis personae—the judges, the lawyers, the law enforcement agencies, government hospitals, doctors as I’ll point out when I refer to a judgment—realize and appreciate that there is a serious problem and that they are a part of the problem. Not for nothing is it said that knowing the problem and accepting that it is a problem is half the battle won. So on the basis that the dramatis personae  at least accept that there is a problem and they are a part of it, I would say that educating and sensitizing judges and the others such as the police, etc. is of the greatest importance and cannot be undervalued. And I am going to exemplify this with an example from another branch of the law.

I am reminded in a different context of what Norma Alvarez said at an environment conference held by our Bombay Bar Association, thirty years ago at which the chief guests were Justices Kuldeep Singh and, coincidentally, Justice Verma. So she told the audience that she was arguing a matter to prevent the destruction of sand dunes in Goa and she wanted to first tell the District Judge what sand dunes are, how important they are and why therefore one should try to prevent their destruction and before she could even begin, (and this is how she recounted it) the Judge told her “Yes yes, I know all about sand dunes. As a young child, I also built sand castles on the beach.” Now everyone laughed, and  Norma said, “That instant I knew I had lost the case”. And that conference has had some effect, as has this whole movement in the field of environment. And therefore I say that sensitizing and educating judges in the area which we are discussing, is the first and foremost thing that one should think of if the system is to improve.

Secondly, the law enforcement agencies need to be educated and sensitized, and where necessary, pulled up and punished for disobeying the law. Now let me give one example. In a judgment in 2000, in the case of Karnataka v. Manjala, the Supreme Court was hearing an appeal where the accused had been acquitted of raping a girl below 16. The Sessions Court had convicted the accused, the High Court reversing the acquittal of  the accused.. Now when the matter came to the Supreme Court, the Supreme Court realized that there was a huge problem being faced by victims and their families especially in far-flung rural areas and this is how they dealt with it and these are the directions they issued and I’m quoting “Before parting with the case we wish to put on record our disapproval of the refusal of some government hospital doctors particularly in rural areas where hospitals are few and far between, to conduct any medical examination of a rape victim unless the case of rape is referred to them by the police. Such a refusal to conduct the medical examination necessarily results in a delay in ultimate examination of the victim by which time the evidence of the rape may have been washed away by the complainant herself or be otherwise lost. It is expected that the appellant state will ensure that such a situation does not recur in the future.” Now, here  you have a very good direction. My point is,: has this been done? I do not know. Has anyone followed up to enforce the Supreme Court direction with the State? I don’t know that as well. But these are things which need to be done. It is not enough to get a good judgment from the Supreme Court laying down the law or giving a direction as in the case of Manjala. Civil society, others, undoubtedly women’s organizations, but civil society involving the citizens generally,  must ensure that this is complied with. So that’s the second thing that must be done. .

 At another level, if the Courts, be it the High Court reversing the Sessions’ Court or the Supreme Court reversing the High Court, uniformly passes strictures not only against the judgment but I would say even against the judge concerned, then in the long run it will have some effect.  In all the three cases, the two of Justice Pasayat and the one I just referred to now, while reversing shocking judgments of the High Court letting off rapists, the Supreme Court, of course in very mild language, passed strictures against the judgments.

The third and the last, is civil society itself. Not only women’s organizations, not only women journalists but society as a whole. Men and women, if they protest, expose and call out travesties of justice and subversion of the law in cases of sexual assault, harassment, rape, I do believe it will have some effect. The message must go out loud and clear as it did to Justice Dixit, that such outrageous orders or judgments will be exposed to the public, both nationally and internationally and will receive not only criticism but the severest condemnation.

Now that of course, leads me to the biggest problem: how do you change the mindset of men brought up from birth in a patriarchal male-dominated world with biases, prejudices and pre-conceived notions of women? Well, I am going to cop out on this one because according to me, that’s a webinar in itself and I at least will leave it there. But one thing is certain, after study of this subject for 10 days or more, there really aren’t any easy solutions; but these are some of the areas on which  if we concentrate hopefully there can be some progress.

Gulnar Mistry: Thank you for that Navroz, and I’m now veering towards my last question and that has to do with legislative change. As I see it, legislative changes in this area, have come into being largely as reactionary measures. They’ve occurred in the wake of particular events or particular cases and seem somehow to be geared to deal with the problems highlighted in those events or cases. For instance, after the Mathura Rape Case of 1979 there was widespread condemnation of the Supreme Court’s reasoning from women’s organizations and from individuals like Upendra Bakshi, and that resulted in amendments to the criminal law in 1983. We saw the addition of the presumption of a lack of consent in certain prosecutions for it including custodial rape. After the Delhi Gang Rape Case of 2012, there were also intense protests and that resulted in the constitution of the Verma Committee which, in turn, culminated in the Report and in additional legislative changes. Do you think that perhaps what we need now are more proactive legislative changes that are targeted towards mitigating this imbalance of credibility that women seem to face and that are made after taking into account patriarchal double standards that women live with? For instance, in the definition of consent, I think that that does leave the door open for lines to be blurred and it becomes problematic not just for the complainant; it does become problematic for men as well. There are several instances where people say it was a “miscommunication.” As you know, there’s a real problem of campus rape cases and so on in in the United States and they’ve found ways of dealing with it by constituting committees at the University level, and so on. So what do you have to say about that?

Navroz Seervai: I think this is possibly one of the most important areas and possibly one of the most difficult, so I notice you’ve left it for the last. So, to answer this question as we move towards the end of our discussion, I need to go back to the beginning and to those value judgments and notions of gender of which we spoke because I think when you look at those carefully, they are all the direct result of one overarching notion which in many ways explains  the others. And it’s this: an Indian woman’s life and her worth as a free, autonomous, independent human being is not considered of value in Indian society, and certainly not valued as much as a man’s. I don’t need to mention anything beyond the prevalence of female feticide and female infanticide, both of which are rampant in our society; and that itself speaks eloquently of the society in which a woman is born and has to live her life. So the way I look at it is this, if a girl is lucky enough to be born and survive being murdered by her family, she obviously starts at a disadvantage. From birth her worth is devalued, she’s constantly put down and debased. So analyzed and understood this overarching notion is according to me, if I may use a phrase, the root of all evil.

Now with this background, I turn to what can or should be done Undoubtedly I think the first thing is to amend the definition of consent and I think having now done quite a lot of reading on the subject, academic as well as caselaw, it must be express verbal consent and nothing else. An exception will undoubtedly have to be carved out for differently-abled women but with that one exception, it must be an affirmative verbal concept. And so a small amendment in the definition of consent is required, deleting the words “gestures” and “non-verbal communication”. The perverse judgments in Farooqi, Rakesh and Garg are eloquent testimony how clear non-consent by the  victim has been twisted and perverted to signify consent. Secondly, and you’ve touched on it yourself, in the proviso to section 375, those catch-all words, the escape route for all these judges, namely,  “by the reason only of that fact” should also be deleted. We’ve seen that due to these words, judges have been able to get around express legislation. Rakesh is a case in point as is Garg and Farooqi.

 Third, to effectively enforce the deletion of subsection (4) of section 155, the  Evidence Act should be amended to mandate( no discretion )  that a judge must rule out as inadmissible  any question of past sexual relations of the woman, because as some judgments have said, including the one I quoted of Justice Pasayat, the only relevant question is was the act of sexual intercourse in the case at hand consensual? Everything else is irrelevant. Of course Justice Pasayat put it the other way: is it rape? Everything else is irrelevant.

Now you talk of pro-active legislation but  it’s easier said than done. Proactive legislation is undoubtedly called for, but is often a pipedream.. Legislatures all over the world—this is not restricted to India—almost universally legislate, especially on issues of gender, race, caste etc., only when compelled to do so by some external force. We saw this after the Mathura judgment and  we saw this after the rape and murder of Nirbhaya.

Coming back to consent, and I’m also coming pretty close to the end of this webinar, a good definition that I came across amongst my reading is to be found in legislation in Canada and that is dealt with in an article which I read, published in 2011 in the Michigan Journal of Gender Law, by Michal Buchhandler-Raphael, entitled “The Failure of Consent: Re-conceptualizing Rape as Sexual Abuse of Power.”.  I’d like to just read out a passage from that article because, I think with suitable modifications, one could adopt it if we are looking out for a good definition.,I do know that  nothing is foolproof, but it’s  a  really good definition of consent. The article mentions affirmative consent in comparative law and the author is  talking about Canada: “One source of authority supporting the assertion that affirmative permission standard is unable to provide the basis for criminalizing many forms of sexual abuses of power is Canadian Law. Canadian Law has taken an important legislative step by fully adopting an affirmative consent standard. Under Canadian sexual assault law, non-consensual sex is the touchstone of the criminal offence. The basic premise of Canadian Law is that the offence of rape is essentially an act of violence, an assault of a sexual nature. . Consequently the offense of sexual assault provides that a person commits an assault when, without the consent of another person he applies force intentionally to that other person, directly or indirectly.”

The author carries on: “While the definition of sexual assault incorporates the force element, the notion of force is broadly construed by interpreting the force  element to include any intentional touching. Canadian law in fact abandons the traditional English Common Law requirement of establishing severe physical force. Under the Canadian Criminal Code, any contact of a sexual nature suffices to meet this definition. The code further adopts a clear definition of consent for the purposes of sexual assault law ,consent is defined as quote “the voluntary agreement of the complainant to engage in the sexual activity in question.” But most importantly (and this would have obviated the judgment in Farooqi at least) the Canadian Code states: ”No consent is obtained where the accused induces the complainant to engage in the activity by abusing a position of trust, power of authority”. And it also limits the defendant’s ability to rely on mistaken belief in consent by stating, I quote: “it is not a defense that the accused believed that the complainant consented to the activity that forms the subject matter of the act where: (a) the accused belief in consent arose from the accused self-induced intoxication or to reckless or willful blindness or (b) the accused did not take reasonable steps in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.” I think this is a comprehensive code and I do believe if one were minded with suitable modifications, an amendment to the definition of consent in our legislation should draw upon, if not actually incorporate, this definition of consent.

I now deal with one last aspect, which you also mentioned right in the beginning, because I can’t possibly end without reference to this issue, and that is the horrifying issue of marital rape. Now the Verma Committee Report very strongly recommended deletion of this exception as defined in section 375. It pointed out that this was rooted in antiquated times when a wife was considered as part of a man’s property. It had no place in the 21st century. It also noted the prevalence of rape within the family structure and by relations, friends and acquaintance. You have in fact given the statistics. It suggested enactment of the following explanation: “Consent will not be presumed in the event of an existing marital relationship between the complainant and the audience”. I do think if we have to go anywhere in this area, this utterly obnoxious provision must be repealed. But of course, it was too much to expect from our legislature, and so today in the third decade of the 21st century, wives in India will continue to suffer rape by their husbands without any recourse to the law..

Now given the rather grim subject matter you may be surprised that I may sound idealistic at the end, but I do think that hope springs eternal, as the poet said. I believe that if these suggested legislative changes (amongst others—I have not mentioned all of them) were to be effected, it would go some way in ensuring a more fair trial of a rape victim. Where the victim remains the accuser; where the accused remains just that; where a woman’s personal life choices are not on trial but her rapist is; where a judge’s scope to subvert the law and permit defense lawyers to undermine the trial process and the law is legislatively restricted if not absolutely proscribed; and where, finally, justice for all will not be a cruel joke for half of humanity. Thank you!

Gulnar Mistry: Navroz, thank you so much for doing this. It’s been a pleasure.

Navroz Seervai: Thank you. It’s been a pleasure at my end as well.

Navroz H Seervai is a Senior Advocate at the Bombay High Court. Seervai has been a lawyer for 40 years, and active in the fields of environment and civil liberties.

Gulnar Mistry is a litigator at the Bombay High Court. She holds a Bachelor of Laws degree from the University of Bombay and Master of Laws from Columbia University, which she attended as an Inlaks Scholar. Her work includes matters relating to environment laws, intellectual properly law and constitutional law.

This article has been transcribed from the video conversation hosted by LiveLaw and edited for errors in phraseology or grammar with permission.

Photo Credits: Anthony Gerace Photography

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