Indian Express published a story yesterday considering one of those Supreme Court judgments which makes us wonder just how out of touch judges in the Apex Court are with the evolving mores of society. The issue is simple: The Court has observed that if an Indian woman or girl alleges sexual assault, courts need not look for corroborating evidence if her version of events “inspires confidence”. I have a bone to pick both with the judgment of the Apex Court and the story published concerning the same.
The judgment first: Wahid Khan v. State of Madhya Pradesh (Cr. Appeal No. 1798 of 2008) concerns the rape of a minor (the lady in question was then 12 years old) in 1988. The minor was rescued from some miscreants by an auto-rickshaw driver, who offered to take her home. The driver did not however drop her home, took her by an empty stretch of road, dragged her out into the bushes, gagged her and raped her. He was caught red-handed while performing intercourse by two police personnel.
The judgment while discussing the evidence presented states how medical reports found that penetration had not been complete, and goes on in some detail regarding the intricacies of the act committed (probably routine in such judgments, but brutally insensitive all the same). The point of contention arose when the counsel for the accused argued that as one of the medical examiners (who had recorded that there had been no penetration) had not deposed before the lower court, there was not enough evidence to corroborate the story of the victim.
In all fairness, the Court’s first step was to state settled law in this regard, which is that:
Essentially saying that corroborating evidence is not an essential requirement for conducting a person, but the need for corroboration should always be present in the mind of the judge. Then however, the Court goes on to add:
It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are. (Para 21)
Some points which I found interesting in the above-quoted paragraph:
1. The Court mentions that it is a matter of “common law” that women do not make senseless allegations. I hope this is a typing error, else our Apex Court actually believes “common law” (a well-defined body of law derived from our British colonial legacy) to include the degree of seriousness exhibited by women in rape cases!!
2. The Court assumes unmarried (also spelled ‘chaste’) women usually tell the truth. Does this assumption include all unmarried women, or only ‘chaste’ unmarried women? Importantly, will a different degree of corroboration be required in rape cases where the victims are married, or unchaste?
3. The Court rightly points out that Indian society is socially backward, but then proceeds to use that as a reason to argue that prevailing dogmas lend the evidence of women credibility to a point where no corroboration is required!! To substantiate this point, I quote the next paragraph of the judgment:
Thus, in a case of rape, testimony of a prosecutrix stands at par with that of an injured witness. It is really not necessary to insist for corroboration if the evidence of the prosecutrix inspires confidence and appears to be credible.
While the previous paragraph could be considered mere observations by judges in a criminal case, the portion quoted above does read like a definitive interpretation/ clarification of existing law which would be binding in the future. Will it lead to a flurry of decisions by judges who will consider evidence given by rape victims to be ‘credible’ and confidence-inspiring and dispose of the time-consuming task of looking at corroborative evidence?
The Article in Express: The article makes two points not mentioned above – (a) In a system cruelly stacked against women, the “sole testimony of the prosecutrix has been accepted as sufficient for conviction in most cases of sexual violence”, and rightly so; and (b) While doing so, the Court however uses the approach of treating women as victims, and uses concepts of shame and violence to discuss sexual violence.
While I agree with the second point, I have serious issues with the first one. While it is understandable that the judiciary will try to be innovative if it wants to dispense justice to victims of sexual assault and rape, dispensing with the need for corroboration constitutes a severe dilution of evidentiary standards. Failure of the prosecution to adduce good evidence might definitely be one of the factors in the low conviction rate in rape cases. It is however just one of many, including non-reporting of cases, refusal by the police to register FIRs, pressure by family and friends etc.
In fact, the Court need not even have discussed this issue, since it itself noted that in the present case, the evidence presented was consistent, and did not need corroboration at all!!