Off the Rails

ON 28 JANUARY THIS YEAR, Sunil Kumar, accused of raping a woman multiple times over a period of eight years, secured an acquittal from the Special Fast Track Court for rape cases, in Dwarka, Delhi. In his ruling, the additional sessions judge who presides over the court found that the victim’s testimony was replete with “prevarications, embellishments and improbabilities,” which made it unconscionable to convict the accused.

It is possible, on the basis of a bare reading of the decision, to discover some support for this conclusion, because the investigation was indeed shoddy; the prosecution was careless enough to not question key witnesses and produce their testimonies. The prosecution alleged that over an extended period of time, Kumar lured the victim on the pretext of providing her with a government job, and subsequently raped her. On some occasions, it was said, he forced her to comply with threats of blackmail and defamation.

The judgment duly noted these aspects of the case, but executed a complete volte face, with the judge, Virender Bhat, directly blaming the accuser for not speaking out, although she had been raped on multiple occasions. If she had not said a firm “no” to Kumar’s advances, Bhat said, it meant that she may well have consented to sex. In her testimony, the victim had stated that the first time she was raped, the drawstring of her pyjamas broke in the struggle. She had managed to walk home without them slipping off. So how, Bhat wondered, had her family and neighbours failed to notice what was “a very unusual scene”? In paragraph 28 of the ruling, Bhat states that, after being raped several times, the woman should have known that the accused was “in no position to provide her with a job.”

In some ways, Bhat’s views expose the deeper problem with the nature of the court he presides over. In December last year, it was widely reported that none of the six fast-track courts set up following a murderous gang-rape in Delhi in December 2012, were performing as per expectations. An Economic Times report on the courts’ sluggishness quoted Justice SN Dhingra as saying that the problem was that courts could not be “fast-tracked” without putting the whole legal system on the fast track. Pendency is a feature of every court in India, but the fast-track courts have come in for particular scrutiny because, by some calculations, they have been less efficient at delivering justice than regular courts. For a mechanism that was meant to recognise and address the urgency of fighting gender injustice, this is an alarming turn of events. The performance of these courts also indicates that the solutions to improving the way in which sexual violence is prosecuted do not lie merely in reducing pendency, important as that may be. Bhat’s judgments and remarks, which have come under some scrutiny from the media and observers, show us that misogyny is not absent from the Indian legal system, and that even specialised courts cannot escape it.

In January 2012, Alison Saunders, the Chief Crown Prosecutor for London, threw a challenge to the United Kingdom’s criminal justice system in a speech about rape trials. “How do we ensure that myths and stereotypes do not play any part in a jury’s deliberations whether consciously or subconsciously?” she said. Entrenched myths about rape have a direct and significant bearing on acquittals; the issue has been studied in some detail in the United States and the United Kingdom, although no similar scholarship exists in India yet.) For instance, a committee set up by the supreme court of Florida in 1990, which detailed specific cases in which judges’ bias had led to travesties of justice, found that the most common prejudice was an acute distrust of women and their testimonies. This prejudice was intensified if victims happened to be minors, or children, since doubt and a tendency towards victim-blaming were combined with overt paternalism and infantilisation. The gender-bias task forces set up by courts in other US states at the turn of the century came to similar conclusions.

In cases of acquaintance rape, where victims know the accused, such biases have a more pernicious effect. Judges let the stereotypes seep into their rulings, and as Susan Ehrlich noted in her 2001 book, Representing Rape: Language and Sexual Consent, end up with what Ehrlich calls the “utmost resistance standard”: the victim is not deemed trustworthy unless she manages to convince the court that she fought with all her strength to stave off her attacker. Ehrlich, an expert in linguistics and psychology, draws inferences from the arguments of prosecutors and defence lawyers, as well as observations and comments of the bench, many of which made their way into the judgements she analysed.

In a court expressly dedicated to delivering justice in cases of sexual violence, it becomes particularly crucial to account for judicial gender bias. On 19 December 2013, the Delhi High Court, acting on its own, had decided to censure and then advise Bhat, over some of the inferences and comments he made while acquitting a man of rape charges. In his October 2013 ruling in State v Ashish Bhat, the judge had said:

The girls in such cases are mostly in the age group of 19–24 years, thus mature enough to understand the consequences of their acts and not so snub to get carried away with any representations of the boy. They voluntarily elope with their lovers to explore the greener pastures of bodily pleasure and on return to their homes, they conveniently fabricate the story of kidnap and rape in order to escape scolds and harsh treatment from the parents.

(i) The girls are morally and socially bound not to indulge in sexual intercourse before a proper marriage and if they do so, it would be to their peril and they cannot be heard to cry later on that it was rape.

The Delhi High Court voiced concern over Bhat’s sweeping observations, and his “sermon” to women of a particular age group. Justice Pradeep Nandrajog, who wrote the judgment censuring Bhat, said that Bhat’s personal experience, transformed into “judicial knowledge,” was devoid of any evidential basis, yet had clearly influenced his ruling in the case. Bhat’s remarks were deleted from the record, and Nandrajog went one step further and took an administrative decision—that Bhat be nominated for every gender-sensitisation programme currently conducted at the State Judicial Academy.

Yet this sort of action is exceptional. Throughout India and the world, judges, especially male ones, are used to getting away with a wide range of openly sexist comments and observations, and, in some cases, even decisions. It may be unfair to criticise Bhat’s judicial capability on the basis of one or two judgments, but his ideas about gender and sexual violence have corresponded closely with his rulings in several cases. In July 2013, for example, Bhat acquitted Bhopal Sharma, a 75-year-old man accused of raping a much younger woman. Some of his comments rendered the facts of the case irrelevant—for instance, the moment Bhopal Sharma stepped into the dock, Bhat wondered how “a frail old man” could “rape a young lady in her mid thirties, having lot more strength than the accused.” This is a variation on an old canard—that physical strength, or an appearance of it, is a factor in preventing rape—and courts in India have cautioned against it in other judgments, although it remains frequently relied on. (It is reasonable to gauge or state the supposed differences in physical strength, but to use that even as a supposed indicator for consent, or the lack thereof, is dangerous.)

Bhat further chose to cast doubt on the very process of taking rape cases to trial—a fragile and complex endeavour at the best of times. He wrote that, following the December 2012 gangrape in Delhi, “such an atmosphere was created that the mere statement of a lady that she has been raped, came to be taken as gospel truth, the accused arrested and charge-sheeted. This led to an unprecedented surge in filing of false rape cases, wherein the accused was acquitted after a protracted trial. It is these false cases which play havoc with the crime statistics leading to the labelling of Delhi as a ‘rape capital.’”

It was after the December 2012 rape, and the widespread protests that followed, that the idea of overhauling mechanisms of rape reporting and trial took root in the public imagination. “Judicial reforms” became a powerful, if limited, catch phrase, but the idea has, so far, only meant setting up more fast-track courts. Most of the emphasis on reforms, so far, has been restricted to quantitative measures—that is, to set up more courts and have more judges, especially women judges and magistrates. Negligible attention is paid to the qualitative aspect, which requires us to address deep-rooted structural problems.

Swift justice is concerned with swiftness, rather than with justness—and without properly equipped courts and systems, any mechanisms to speed up the process of delivering justice falter. While the government and several NGOs have acknowledged that “sensitisation” is important for legal professionals, no tests have been conducted to check whether sensitisation programmes have actually done the work they are expected to. Sexism and bias also cuts across judges’ genders. Without an acknowledgment of these problems, it could be argued that fast-track courts are far from being the halls of justice they were meant to be, and are, instead, places where justice remains susceptible to being altogether derailed.