Three important safeguards of rights of rape and assault survivors

The recent outrage over a judicial magistrate in Rajasthan asking a rape survivor to show her injuries has brought into focus once again the gap between how survivors of sexual violence are treated and they should be treated. It also reopens the long-standing demand by civil rights groups for a trauma-informed approach by the judiciary and law enforcement.

On March 30, the Dalit survivor filed a complaint stating that the Hindaun court magistrate asked her to strip in order to see her injuries.
Over a period of time, safeguards on the rights of sexual assault victims have evolved, but incidents like these continue to evidence the fault lines in rape adjudication in India. The apex court has noted in Aparna Bhat v. The State of Madhya Pradesh (2021) that judicial officers must have the greatest extent of sensitivity and challenge harmful stereotypes instead of perpetuating them while issuing directions to judges for adjudicating cases of gender-based violence. In the Mathura rape case, Tukaram and Anr. v. State of Maharashtra (1978), the apex court’s acquittal of two policemen who raped a 16-year-old tribal girl, and called it a “peaceful affair”, caused a public outcry. It was picked up by the women’s movement and fuelled the Criminal Law (Amendment) Act, 1983 which reversed the burden to prove consent from the woman to the accused i.e., in certain prosecutions of rape cases, absence of consent is the presumption, and the onus is on the accused to prove otherwise. Though the 1983 amendment wasn’t able to stem stereotyping, there have been other important judicial interventions that protect the rights of survivors. Here are three important ones:

The 154th Report of the Law Commission of India (1996) and the Justice VS Malimath Committee’s report (2003) first recognised the need for a victim-friendly criminal justice system by acknowledging the need for trauma counselling and mental health support, rehabilitative services, interim compensation and so on. The 2003 report recognised that avoiding secondary victimisation of survivors was crucial. Subsequently, the Code of Criminal Procedure (Amendment) Act, 2008 among other major reforms introduced the vital victim-friendly procedural reform of in-camera proceedings of a trial for the offence of rape. In-camera proceedings protect the victim’s privacy as they are not conducted in open court, and it is impermissible for the media and the public at large to view them. The privacy of a rape victim has thus been granted primacy especially as we live in a society where sexual offences have a deep stigma attached to them.

Repealing of prejudiced provisions such as section 155(4) of the Indian Evidence Act, 1872 which earlier permitted which provided that “if a man is prosecuted for rape or attempt to ravish, it may be shown that the prosecutrix was of generally immoral character” (repealed in 2003) have also contributed to the progress in protecting victims. However such improvements have often come only in the wake of heinous crimes. As it was in the aftermath of the outrage that followed the Nirbhaya gangrape in 2012 that an amendment (2013) was introduced which explicitly prohibited questioning a rape victim about her previous sexual history (section 53A in the Evidence Act).
This was done for cross-examinations where the argument would be to establish the victim’s “character”, ridden with biases against sexually active women, and thus discrediting her entire testimony. The 2013 amendment barred such questions from being put to the victim and made the evidence of character or previous sexual experience of the victim irrelevant on the issue of consent.
However, notwithstanding this progress, the cross-examination is inevitably a deeply hostile experience that causes re-traumatisation as rape victims continue to be asked sexually explicit questions about their past history and conduct. This amendment also introduced section 114A to the Evidence Act which provides for the presumption of absence of consent in certain cases such as where the perpetrator is in a position of trust or authority, substituting the earlier 1983 amendment. 2013 was also the year when the Supreme Court recognising the need to safeguard the bodily integrity of victims, banned the two-finger test, in the landmark judgement of Lillu @ Rajesh & Anr v. State of Haryana (2013) holding that it violated the right of rape survivors to privacy, physical and mental integrity and dignity.
Protecting the interests of the victim and ensuring their welfare is central to the criminal justice system and therefore their potential loss of privacy should thus be seen sternly. This is accounted for in the law wherein it prohibits the disclosure of the identity of the victim in cases of rape under section 228A of the Indian Penal Code, 1860. It makes revealing the identity of the victim a punishable offence.
However, it is very often that one comes across instances of news publications or public figures making direct references to the identity or features of the victim. For instance, the Delhi High Court during the news coverage of the Kathua rape case in April 2018, took action and fined several news media organisations for disclosing the identity of the victim. More recently in October 2023, the High Court according to its judgement in Saleem v. The State of NCT of Delhi & Anr. (2023) issued practice directions to ensure the confidentiality of the victim is maintained in all filings in cases of sexual offences. The directions specified that details such as name, parentage, address, social media credentials and photographs of the victim must not be disclosed in filings.

Despite these numerous reforms, the courtroom persists in being, to a great extent, a hostile environment for most victims of sexual offences. This may be due to the failure of proper implementation of laws, lack of consequences, bias and reliance on patriarchal notions, or judicial stereotyping by judges. It is necessary to ensure that victims are protected both inside and outside the courtroom.
In another recent incident in Rajasthan, a private school prevented a class 12 gangrape survivor from appearing for her board examinations as it would “spoil the atmosphere” of the school.
The absence of accountability mechanisms to ensure this will render progressive laws toothless if strict measures are not taken against stakeholders who violate these safeguards.
The incident in Rajasthan is disturbing not simply because it is a gross violation of the bodily integrity and constitutionally guaranteed rights of the victim, but especially because it was inflicted by an officer of the court, which is why the booking of an FIR against the magistrate is a step in the right direction. If victims of crime, especially sexual violence, are continuously exposed to new cycles of harm by the very systems and stakeholders which are meant to protect them, it will significantly diminish their confidence in the judicial system and lead to decreased reporting rates.
Avanti Deshpande is a Delhi-based lawyer. Her interests include human rights law and gender-based violence.