Watch Senior Advocate @NHSeervai and Advocate Gulnar Mistry in conversation on the topic “Patriarchy, Misogyny & Sexual Assault : Women and the Courts”.

Live updates available here on @LiveLawIndia. https://twitter.com/livelawindia/status/1281548085684875264

Mistry begins the seminar by touching upon the topic about why the webinar is being headed by a man. “I think for too long the problems faced by women are being spoken about by women. I reject that idea and think that it’s time that men need to start talking about this too.”

Mistry refers to the Karnataka HC Order wherein the Judge had observed that a woman who is sexually assaulted does not simply go to sleep post the act as it is unbecoming of an Indian woman. This was later expunged, but betrays the idea of how a woman should behave.

@NHSeervai on legislative changes post the Delhi Gangrape Case which does away the lack of resistance as betrayal of consent, but the gendered notions still embedded in judicial decisions: I think these value judgements & notions of gender are at the heart of the entire problem.

@NHSeervai: With a deeply patriarchal judicial system judging women can be broken down into 4-5 areas, and all are highly problematic. Judgements, despite the amendments in 2013, betray the values.

@NHSeervai: 1. Prior intimacy and familiarity with the accused are used by judges invariably to judge a victim on an accusation of rape even in the face of overwhelming evidence. It’s as if the judge with his notions can’t even imagine that a family member, friend can do this.

@NHSeervai: Raja Case is particularly egregious. The SC reversed the findings of the HC by not only completely ignoring the amendments post Nirbhaya, but by making a point by holding it against the victim that she was acquainted with the accused and did not mention it.

@NHSeervai: The Order in Rakesh v. Karnataka is why we’re here. It’s astonishing that the consumption of alcohol by a woman is enough for judges to discount an accusation of rape and assault. It’s as if when a woman drinks, she deserves what she gets.

@NHSeervai: You can almost hear the judge subliminally say, “Who asked her to drink ?” Drinking is a male reserve and if a woman steers into this reserve, she can’t blame a man and loses her protection.

@NHSeervai: Equally ill-founded is the assumption that if a woman has alcohol with a man and then has sex with him, it has to be consensual. You find this in multiple judgements. Consumption of alcohol by victim is held against them.

@NHSeervai: The most troubling part of this larger picture is that the woman, from accusing men, becomes the accused. This is what discloses the patriarchy, misogyny and the hypocrisy of the whole system.

@NHSeervai: This is shockingly also found in the Appellate stage. Vikas Garg Case is where the judge used friendship and alcohol agains the victim. They had outrageous notions of consent and belittled the women. Their hearts bled for the rapists; young men w/ bright future.

@NHSeervai: “It is a travesty if young (male) minds rot in jails”. 2. If there are no injuries on the body of the woman. Despite this being completely counterproductive to the woman, even with Proviso to Section 375.

@NHSeervai: The most egregious judgement is that of the Supreme Court. I think one could write an essay on misogyny based on the judgment. Men speaking as if the 50% population doesn’t exist.

@NHSeervai: The emphasis on a woman’s honour, chastity in judgement after judgement, with the usage of derogatory. This is so common, with the most recent example with the Karnataka HC judgement. https://www.livelaw.in/news-updates/not-the-way-our-women-react-when-they-are-ravished-karnataka-hc-on-rape-victim-claiming-to-have-slept-after-offence-read-order-158855

@NHSeervai (recounts a rape survivor’s statement): “Rape is horrible, but is not horrible for all the reasons that have been drilled into the heads of women. It’s horrible because it’s violent and someone takes control of your body.”

@NHSeervai: “But, it is not horrible because someone takes your “virtue”. It’s not horrible because your father or brother are “dishonoured”. I reject the notion that my virtue is located in my vagina just like men’s brains are in their genitals.”

@NHSeervai: “If we take honour out of the equation, rape will still be horrible. But, it will be a personal, not a societal horror. We will be able to give to women who have been assaulted what they truly need; not a load of rubbish that they should feel guilty and ashamed”.

@NHSeervai: I’m sorry to say that the SC’s observation about how rape is a crime against society betrays the sentiment that if not for this, they would not entertain the matter seriously.

@NHSeervai: In Punjab v. Ram Singh, it is asserted that 1. Previous sexual experience is irrelevant. To that extent, it follows the 2003 Amendment (Deletion of S.155(4). 2. Only question for court to consider is did accuse commit rape on the victim on the occasion complained of.

Mistry refers to how despite finding the accused to be guilty, the Courts tend to revert to the notion of an “ideal victim”. This means that women need to check certain boxes & whether this subverts the judicial process, and what does that mean for women’s Constitutional rights.

@NHSeervai: There is nothing more startling than how judges ignore the deletion of Section 155(4). To me, that such a provision survived the 20th Century is itself a disgrace.

@NHSeervai: I have never read a judgement referring to an accused rapist or convicted rapist as a person with loose morals or of easy virtue. I wondered if it shows the mentality of judges exhibiting male superiority.

@NHSeervai: Now I come to the aspect of burden of proof. It is this goes a long way to turn an abuser into the abused. An excellent article published in 1993 in UPenn Law Review titled “Read Her Lips: An Argument for Verbal Consent Standard in Rape”.

https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3649&context=penn_law_review

@NHSeervai: I believe that the law as it stands makes serious inroads in a woman’s Constitutional Rights, specially under Articles 14 and 21. It affects her right to live; where she works, how she dresses, what drinks she consumes, her sexual and social relations are impinged.

@NHSeervai: All this is of no avail (referring to the suggestions made in Justice Verma Committee’s Report) if the mindset of the judges does not change. This deals with the Constitutional aspect.

@NHSeervai: All lawyers, not only defence lawyers in rape cases, owe a professional and moral duty to the Court, their clients and themselves. As a practising lawyer for 40 years, I have never accepted the “cab rank” rule.

@NHSeervai: This is for all cases, and I don’t want to suggest that rape cases stand on a different ground. The lawyer owes a duty to the court and to his own client to circumvent or subvert legislation enacted for furthering the cause of justice.

@NHSeervai: The proviso to Section 375 is objectionable because it circumvents the rape trial and becomes a travesty of justice as it brings into the picture the life of the victim. The effect of subverting the law is an attack to the rule of law on which our society is founded.

@NHSeervai on what can be done so as to make cases of harassment and assault be treated with more seriousness: We know whom to address. The question is how. We need to make everyone realise and appreciate that there is a serious problem, and they are a part of the problem.

@NHSeervai: Educating and sensitising judges, as well as the police, cannot be undervalued. It’s not enough to get a good judgement from the SC, laying down the law. Civil society must ensure that it is complied with.

@NHSeervai: Value judgements which we discussed before stem from one overarching concept - An Indian woman’s life and her worth as a free, autonomous, independent human being, is not concerned of value in Indian society, certainly not as much as a man.

@NHSeervai: Proactive legislation is definitely called for, but it’s often a pipe dream. Legislatures all over the world legislate on issues of gender, caste, race etc only after they are compelled to do so. We saw this after the Mathura judgment and the Nirbhaya case.

@NHSeervai on testimony which is completely not corroborated and how does that tie in with false rape cases: It’s almost universally accepted that in rape cases that there is no need for corroboration. The judgments say that, the Verma Committee Report says the same.

@NHSeervai: False cases, where law is adequately equipped to call out false case from a true case, implicating men does not mean that you will put forward yet another thing which at least our courts have set their face against (namely, corroboration).

On that note, the webinar comes to an end.