The broken promise of justice in rape cases

Protests by victims and litigants highlight a culture of impunity and a legal system in urgent need of reform.

In the 1980s, women’s groups protested at the gates of the Supreme Court against the acquittal of policemen who raped a tribal girl, after four law professors wrote an open letter critiquing the judgment. On December 20, 1979, the then Chief Justice of India, Y V Chandrachud, wrote a letter to the Gujarat women’s groups led by Jyoti Sangh assuring them that he fully shared their view “that life and justice must be made safe and acceptable to unprotected women”. Without romanticising the past, it would be fair to note that such courtesy to women’s groups has not been emulated within the judiciary since.

Protests by women against sexual impunity in law and society at the gates of the apex court have continued. For the gates of the Supreme Court have occupied a symbolic significance in the geography of lived constitutionalism through different kinds of people’s movements. Today, the gates of the Supreme Court mark the contemporary geography of desperation, its destination.

On August 16, 2021, the 24-year-old rape survivor who had accused Bahujan Samaj Party MP in 2019 of rape, set herself ablaze along with her friend, a 27-year-old man, in front of the Supreme Court of India. Both are now dead. The victims thought of the Facebook live as a “dying declaration” or the final complaint against the legal system and the culture of state impunity, as they called out the names of those officers who they held accountable. After this public roll call of impunity and a powerful appeal to the public to record their testimony, the two friends set themselves ablaze. The victim indicted the police and the judiciary for stripping her of dignity.

We are left numb with grief as we consume their words, their cries and images of their burning bodies at Gate D. The singed hands of the security guards of an empty apex court, without the usual bustle of lawyers and litigants, bear witness in flesh to the crisis in the legal system today.

For, as per some media reports, the victim had filed a petition in the Supreme Court pleading for a transfer of the rape case from Allahabad to Delhi in March. The brother of the accused MP filed a case of forgery against her, in which a non-bailable warrant had been issued by a Varanasi court in August 2021. And the Delhi police allegedly now suspect that they killed themselves after being framed in a fraud case. An enquiry has been announced, and an officer sent to judicial custody, as we despondently wait for more information on this tragic case.

It is devastating that we have a dark legal history that mutely records that rape survivors are routinely killed or kill themselves in protest in front of police stations, courts and government buildings. Outrage, if any, is pushed towards the convenient demand for death penalty, deflecting public attention from a serious review of state impunity.

While the media discourse on rape is mostly spectacularised and sensationalised, state response also pathologises or criminalises anti-rape protest that challenges state impunity. The dominant response to demand death penalty does not challenge cultures of state impunity. For it is not sensational enough to demand accountability and strict action against those who bring false charges against vulnerable victims and complainants. There is no sober and serious reflection on how to abolish those practices of policing that target and victimise unprotected people based on their identity or status as the first step towards addressing the social problem of violence.

Transfers and suspensions are the first response of governance to impunity. Practices of policing within a security state framework also do not actually challenge sexual impunity. The increased use of the National Security Act in rape cases indicates a breakdown in routine policing, rather than assure us of gender sensitive policing. More and more rape survivors, especially from marginalised communities, have been re-victimised. The imprisonment of victims of violence is on the increase in lockdown prisons. There is no judicial enquiry on why victims of violence are imprisoned on false counter cases. There was no change in judicial policy declaring that no rape victim would be arrested and imprisoned despite the outrage that followed the imprisonment of a rape survivor on a contempt charge at the height of the pandemic.

It is a social fact that the criminal legal system often merely re-arranges a system of illegalities. For example, rape survivors are routinely pressurised to “compromise” illegally and turn hostile in trials, failing which they may be threatened or even killed. Noting this, the Supreme Court in Ramesh v. State of Haryana, has noted that this technique of terror under the guise of compromise is part of our socio-legal culture. The apex court here gives voice to the desperation when victims and witnesses are at the mercy of police. In the lockdown, this terror was amplified as trials got postponed. During the lockdown, victims could not escape intimidation, and transfer petitions were not always heard during this time. No moratorium was declared against arbitrary arrests of women and victims of violence, despite repeated petitions and advisories. Guidelines on how to treat rape survivors during the lockdown were not announced to ensure their safety, as trials could not be held.

Their abject story is aligned to another unspoken history of our courts. While this history is unfortunately not of interest to students of law, there are many cases of suicides from court buildings by accused persons or litigants. It is not the tradition of courts to mourn the death of litigants or victims, who kill themselves from court buildings or immolate themselves in front of a court. For judicial “reference” is only passed to mourn the passing of judicial lives — not when victims and litigants give up on life because of law’s violence.

Victims and litigants are usually added to the design and procedure of courts, while judicial doctrine is built on their stories of social suffering. We often forget that there is no constitutional glory without a brief. Will the judiciary mourn these deaths? Or will the victims whose hope is broken by the promise of justice be blamed rather than be honoured for reminding law and society of the forgotten quest for humanity?

Baxi is the author of Public Secrets of Law: Rape Trials in India

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