Indira Singh, Week 11

Open letter to CJI

Summary

This letter discusses the Tukaram v. State of Maharashtra (1979) case. It briefly explains the facts of the case and the decisions of the High Court and Supreme Court. This letter is a appeal to have the case reheard, by a larger bench or full court. It says that the Supreme Court’s extraordinary decision was a sacrifice of human rights of women under the law and the constitution. And it questions the decision as there was no cogent analysis regarding as to why the factors which weighed with the High Court was not sufficient to justify conviction of rape. It also discusses the scope of ‘consent’  in the constitution. As Supreme Court should have only focused on the third component of Section 375 of the Indian Penal Code, which applies when rape is committed with the woman’s consent, when “her consent has been obtained by putting her in fear of death or hurt”. But the second component of Section 375 is when rape occurs without her consent. There is a clear difference in law, and common sense,

between ‘submission’ and ‘consent’. Consent involves submission; but the converse is

not necessarily true. Nor is absence of resistance necessarily indicative of consent. the issue before the Court was simply whether the act was committed with her consent, under fear of death or hurt. From the facts of the case, all that is established is submission, and not consent. The Court has given no consideration whatsoever to the socio-economic status, the lack of

knowledge of legal rights, the age of the victim, lack of access to legal services, and the

fear complex which haunts the poor and the exploited in Indian police stations. But a case like this with its cold-blooded legalism snuffs out all aspirations for the protection of human rights of millions of Mathura’s in the Indian countryside. But what matters is a search for liberation from the colonial and male-dominated notions of what may constitute the element of consent, and the burden of proof, for rape which affect many Mathura’s on the Indian countryside.