Violation of Principles of Fair Trial in Rape Cases – Part 2

By: Bipasha Kundu

[This article is the second part of a two- part series.]

II.                “Instant Justice” meted out in the Disha Rape Case is no Justice at all

Another horrifying incident that shocked the nation was the Disha rape case. A 26year old veterinary doctor in Shamshabad, Telangana, was brutally raped by four men who had offered her “help” to repair her scooter with a flat tyre on 27th November 2019. The rapist then took her body to Shadnagar and burnt it. The four accused were soon nabbed and subsequently shot down on 6th December 2019 during a crime scene reconstruction exercise. The officials claimed that they had to fire in self-defence. According to them, the accused had managed to escape and were pelting stones at the police.  However, suspicions were raised regarding the veracity of the claim that the police had to fire in self-defence as this encounter case nears an uncanny resemblance to the encounter held in Warangal in 2008, interestingly under the same officer V.C Sajjanar.

The Supreme Court decided to form a three-member inquiry commission in this regard. Justice VS Sirpurkar (former Supreme Court Judge) is appointed to lead the commission. The other two members are Justice RP Sondurbaldota (former Judge of Bombay High Court) and DB Karthikeyan (former CBI Director). The objective of the commission is to examine the circumstances of the death of the accused and to determine whether the police officials committed any unlawful acts. The National Human Rights Commission has also taken note of the incident and started a suo moto investigation. It has appointed a seven-member team for the purpose with IPS Officer Manzil Saini as the lead.

An encounter killing (also known as extra-judicial killings) is the death of an individual caused by law enforcement agencies but without judicial sanction. In the case of A.S. Mohammad Rafi v. State of Tamil Nadu, the court has observed that no matter wicked or depraved a person is considered, he cannot be denied his right to be defended in a court of law. Even though the encounter in the Disha rape case was lauded as being “instant justice,” it should be understood that it is not always possible for the police to predict if the accused is actually guilty; most importantly, justice cannot be a means simply to pacify public outrage, it has to meet the conditions laid down by principles of a fair trial. In the case of Extra Judicial Execution Victim Families Association (EEVFAM) And Another v. Union of India and Another, the court said that it is the role of the court to step in and prohibit the State and its agencies from taking away the rights of an individual, especially the Right to Life. The court had clearly held in Om Prakash v. State of Jharkhand that it is not the prerogative of the police to kill an individual because he is a criminal. The right to Fair Trial is enshrined in Article 21 of the Constitution of India, as held by the court in Captain Amarinder Singh v. Parkash Singh Badal and Others. Hence, extra-judicial killing is a clear infringement of the deceased’s fundamental rights. As per s. 46(3) of Cr.P.C., the police don’t have the right to cause the death of an accused in cases where the offence is not punishable with life imprisonment or death. However, the provision doesn’t give a license to the police to kill individuals accused of offences punishable with death or life imprisonment. If death is caused in a police encounter, a Magisterial inquiry u/s. 176 of Cr.P.C. has to be mandatorily conducted, as per the judgement given in the case of People’s Union for Civil Liberties & Anr v. State ofMaharashtra and Ors (which also prescribed a 16-point Guideline to be followed in cases where death is caused by a police encounter).

III.             Rape myths & stereotypes lead to the Violation of the Right to Fair Trial of the Victim

Recently, in the case of Rakesh B. v. State of Karnataka, Justice Krishna Shripad Dixit, while deciding the petition for granting anticipatory bail to the accused, remarked that the fact the victim fell asleep after she was raped is the “unbecoming of an Indian woman.” He further opined that women are not supposed to react in this manner if they were violated. It seems from the statement that the victim is the one who is facing the trial. Unfortunately, this is not a one-off incident, and there have been numerous instances that prove that “rape myths,” stereotypes, and gender bias find their way into the judicial process and adversely affect the rights and dignity of the rape victim. In the recent case of Aparna Bhat & Ors. v. State of Madhya Pradesh & Anr., the Supreme Court acknowledged the danger of stereotypes about rape victims, including “notions of chastity, marks of resistance, presence of physical injuries, immediate reporting of the offence, etc.” Even though s. 155(4) of the Indian Evidence Act, according to which the sexual history of the rape victim could be used as evidence is deleted, following the 172nd Report of Law Commission of India, it continues to influence trial in rape cases in many instances. The “two-finger” test was also used to determine the sexual history of the victim. For the constitution of the offence of rape, the victim must be subjected to the sexual act by the perpetrator against her will; the victim’s prior sexual history should have no bearing on the trial. In the case of Tukaram & Ors. v. State of Maharashtra(Mathura rape case), the judgement mentioned that the victim was “habituated to sexual intercourse.” Subsequently, in the case of Lillu v. Haryana, the court held that the two-finger test is in contravention to the victim’s right to privacy and dignity. The Supreme Court also made it clear in the case of State of Punjab v. Gurmit Singh that women who are sexually active may refuse to give consent; hence, courts should not try to judge the victim’s character. As per the J.S. Verma Committee Report too, the courts should not take into account the relationship between the accused and the victim while deciding the presence of the victim’s consent. Despite judicial pronouncements which aim to bring about a positive change in the conduction of trials in rape cases in favour of the victim, unfortunately, several judgements still echo the regressive and patriarchal mindset of the past.

Conclusion & Recommendation

It is important to remember that both the victim and the accused have a right to a fair trial. As seen in the Nirbhaya rape case, the procedure was manipulated by the accused to defer the judgement to a later date multiple times. Care should be taken so that the rights of the accused don’t act as an infringement of the rights of the victim. The court should frame guidelines regarding reporting of media on sub-judice matters. Care should be taken so that the media reports in an unbiased manner and presents complete information so that the readers can form an informed opinion. Unnecessary sensationalism of pending cases should be stopped.

Encounter killings cannot be used to serve justice in any case as it nullifies the possibility of the accused getting a fair trial.  The main reason why police encounters are gaining more acceptance is the huge pendency of cases in the Indian Judiciary, which prolongs the fight for justice.  Efforts must be undertaken to reduce such pendency. Also, a judicial inquiry must be conducted with utmost efficiency in case of such encounters. Inquiry reports by independent organizations may be looked into to make sure that the judicial inquiry was free and fair.

Another aspect of rape trials that needs to be paid adequate attention to is the perpetuity of rape myths and stereotypes impacting the trial procedure on various levels. To counter this problem, gender sensitization programmes should be included in the foundational training of the judges. Even though the Supreme Court has time and again tried to eradicate such practices by way of judicial pronouncements, indicative guidelines can be framed to spell out what kind of questions, of factors of victim’s personal life are taken into consideration, or obsolete medical tests are based on such myths, in order to ensure that the entire process of trial can be made as victim-friendly as possible.

[Bipasha Kundu is a second year student of the National University of Juridical Sciences, Kolkata]

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