How not to judge a high-profile rape case

In rape trials, the odds, sadly, are always stacked against the complainant, alleged victim, or alleged survivor, whatever be the term one chooses. These odds get heavier in high-profile cases, that is, where the accused is a man of stature, clout and pelf. Criminal trials are inherently adversarial in nature, involving a bitter clash between two versions of what each party claims to be "the truth", and where rape accusations are involved, this clash assumes a viciously acrimonious character.

Thus, it is incumbent upon a court to play an equalising role, to ensure that despite the gulf in the balance of power, the trial is made as equitable as the law and circumstances permit.

That's not what a Supreme Court bench did on April 8, in a case involving two tribal women from Chhattisgarh claiming that the henchmen of a well-known business baron had raped them and seized their land. Initially, the court was very sceptical of the allegations, which isn't surprising, given the fact that most complainants in similar situations are regarded as vindictive gold-diggers out to utilise victimhood in order to make a fast buck. ML Sharma, the complainants' lawyer, ventured to produce them before the court, so that the judges could satisfy themselves as to the purity of their motives.

Wrong and illegal conduct

Sharma might have been zealous in seeking justice for his clients, and he cannot be faulted for that. But his offer- of producing them before the court, paved the path for illegality. Because Section 228A of the Indian Penal Code explicitly states that any conduct which violates a rape complainant or victim's privacy is a penal offence. Sharma cannot plead ignorance of the law. He knew fully well that his clients would be questioned in open court, and could have, as a compromise, pressed for presenting them in the judges' chambers.

But then, his opponent, a reputed senior counsel, didn't exhibit unblemished conduct either. He launched into a tirade, questioning the antecedents of the victims, and urged the court to dismiss the petition right away. To some extent, he mirrored a lawyer's dilemma- whether to go for broke in advocating his client's interest, or to uphold the integrity of the legal system. But then, there is a solution- a legally validated one at that, which he chose to ignore.  The amended Section 155(4) of the Indian Evidence Act states in no uncertain terms that a victim's character shall not be questioned while a rape case is being adjudicated. Surely, adhering to the law isn't outside the scope of layering?  

The court's action also deserves scrutiny. Because, by letting the complainants appear in open court (thronged by the media and lawyers), it violated their privacy. In doing so, the bench disregarded precedent set by the very same Supreme Court in a number of cases. The decision in "State of Maharashtra versus Madhukar Mardikar" (1990) emphatically stated that "even a woman of easy virtue is entitled to her privacy" and it was the court's duty to protect it. Of more recent vintage is the ruling in "Bhupinder Sharma versus State of Himachal Pradesh" (2003). Elevating the courts duty to a substantially higher level, it was held that as far as possible, judges of all courts should avoid naming the complainants or victims in their judgements. This, despite the fact that judgements are public documents and are immune from both civil and criminal suits for defamation.

There is a reason for not naming the judges or the senior advocate mentioned above. And that's because the problems aren't particular to this case ; the flaws are embedded in the institution, and are structural.

After the hearing, the judges weren't inclined to intervene, because they didn't find the complainants' statements as sufficient reflection of their credibility. The case was sent back to the high court.

One can only hope that other benches, of the Supreme Court as well as other courts, use this incident as an example of how to not judge a rape case.