Abhijeet Shrivastava, Week 11

This blogpost concerns the open letter addressed to the Chief Justice of India on September 16^th 1969 by Professors Upendra Baxi, Vasudha Dhagamwar, Raghunath Kelkar and Lokita Sarkar. The grim letter is written with regard to the appalling injustices in the Tukaram v. State of Maharastrha (1979) holding of the Supreme Court. The Bombay High Court had reversed the acquittal of the two accused, Tukaram and Ganpat, on charges of rape under S. 375 (IPC). A brief summary of the facts may be perused here, at the second and third paras of the letter.

The SC, reversing the High Court's judgment, held that Mathura, the survivor’s “cried and alarms are, of course, a concoction on her part” (emphasis mine) and observes that when she was leaving the police station, Ganpat attempted to hold her hand to which she made no attempt to resist. One sees that the Court puts the onus to resist on survivors, against authoritative officers of the law and views the facts from that lens, and the “presumption of innocence” acts instead as a barrier of disbelief against any of a survivor’s claims.

The Professors raise many questions of urgent importance. 

With respect to the facts, they ask why (i.) didn’t Tukaram do nothing to rescue the girl from Ganpat, (ii.) why were the lights put off and doors shut, (iii.) how does the Court expect a minor woman in such circumstances give “stiff resistance” to a well-built policeman or to raise alarms in a closed police station, and (iv.) shouldn’t in any event the Court have looked for marks of stiff resistance on the accused’s body, instead of the survivor’s?

Legally, they put to scrutiny archaic and deplorable “standards” of consent invoked by the Court, in that the mere absence of resistance ought not to have been taken as an indication of consent – which must have positive action. Focusing on submission instead of consent failed to protect the dignity and rights of Mathura. In fact, it seems that the Court thought she was a “woman of easy virtue” due to her liaison with her lover. The letter attends to Nandini Satpathy (1978) where the SC held that calling women to police stations is in violation of S. 160 (1) [CrPC], in context of the right against self-incrimination. This holding must by analogy have applied to cases of rape in police stations too, in which the Court failed.

Socio-economically, the Professors highlight that “a case like this with its cold-blooded legalism snuffs out all aspirations for the protection of human rights of millions of Mathuras in the Indian countryside.” Unfortunately, even in this tragedy, Mathura was one of the few women to whom “justice”, even in this morbid and twisted form, remains accessible. “Illiterate, labouring, politically mute Mathuras of India” continue to be helpless. The letter ends urging the SC to reconsider its flawed understanding of consent and to help realise justice for women to whom help is inaccessible for various reasons. However, even since, one can’t help but wonder that not much has changed, especially as this tragedy has traced its way back to the Farooqui case, another “Kohinoor” of the SC’s failures towards survivors.