Judged by bias: The patriarchal lens still shadowing India’s rape cases

Patriarchy still shapes rape trials: Advocate Vrinda Grover

Advocate Vrinda Grover has represented women and children in several cases and underscores the “significant” evolution of the understanding of consent in rape trials since the (1972) Mathura case, but “patriarchal notions continue to influence how courts view survivors”.

She says, “Despite” repeated legal amendments, rape trials have continued to scrutinise the woman’s character and conduct rather than the accused’s conduct and the circumstances of the crime.”

Grover notes that the 2013 amendments in Indian criminal laws were a “critical shift” as consent was defined in law, making clear that it requires positive, active agreement. Yet, courts continue to struggle with the idea that women have “agency, autonomy, control over their own body”.

Grover says personal choices such as whether a woman is drinking wine, or has a boyfriend, or has a sexual relationship with more than one person” have zero bearing on the crime. (Image enhanced using AI)

The Tejpal case took place about seven months after Parliament enacted the Criminal Law (Amendment) Act, 2013, which substantially broadened the legal definition of rape to include penetration by fingers or other body parts or objects. The new law came into being with effect from February 3, 2013.

For Grover, personal choices such as “whether a woman is drinking wine, or has a boyfriend, or has a sexual relationship with more than one person” have “zero bearing on the crime”.

“The prejudice of patriarchy continues to haunt these rape trials,” Grover says, pointing to judgments where a survivor’s clothes, lifestyle and choices become the focus instead of the accused’s conduct.

Control sexual urges: Calcutta High Court

The 2023 Calcutta High Court judgement reflects the notion, which even the Supreme Court found problematic. The judges of the high court had advised adolescent girls “to control sexual urges” which a apex court judges Abhay S Oka and Ujjal Bhuyan not only called as “highly objectionable and completely unwarranted” but also went ahead and set aside in 2024.

The case Grover refers to, witnessed a minor Adivasi girl being raped by two police constables within the premises of their police station in Gadchiroli district of Maharashtra in March 1972. The sessions court had acquitted the accused on the ground that she had sexual intercourse at the police station. Still, rape had not been proved as her consent was voluntary, and that she was “habituated” to sexual intercourse.

In 1976, the Bombay High Court set aside the trial court’s judgement and convicted the accused, holding that the so-called ‘consent’ to act was only ‘passive submission’ by a helpless victim.

But in September 1979, the Supreme Court reversed the high court ruling, saying that the “alleged intercourse was a peaceful affair”, as there were no visible marks of injury on her body. The apex court acquitted the accused policemen.

In recent times too, rulings from the Allahabad High Court and the Karnataka High Court, reflect a mindset influenced by patriarchal societal definitions on women’s conduct and bodily autonomy.   

‘She herself invited trouble’

In 2025, while dealing with a rape accused’s bail, the Allahabad High Court raised the “morality” question in the order saying the survivor is a MA student which was “enough to understand the morality and significance of her act as disclosed by her in the FIR.”

The order continued to note that “even if the allegation of the victim is accepted as true, then it can also be concluded” that the sexual assault survivor “herself invited trouble” and was “also responsible” for it.

The same high court in the same month expressed a similar sentiment in a different case concerning two accused men. While recording that a “prima facie” charge of attempt to rape was not made against them, the high court ruled they were liable to be summoned for “minor charge” for the “assault or abuse a woman with intent to disrobing or compelling her to be naked” aside from the law dealing with sexual offences against children.

The contentious observation was that the “mere fact that according to prosecution version two accused ‘grabbed the breasts’ of the victim and one of them ‘broke the string of her pyjama’ and ‘tried to drag her beneath the culvert’ and in the meanwhile on interference of passersby the accused persons fled away from the spot leaving the victim behind” was enough to  hold them guilty of rape.

‘Judges must keep personal morality out of sexual assault cases’

Senior advocate Shobha Gupta represented the 2002 Gujarat riots gangrape survivor a few years ago in the Supreme Court.

She often finds “judicial insensitivity” in sexual assault cases arising when judges assess allegations through their personal views on morality, gender roles and how a woman is expected to behave.

“A judge’s role is to examine whether the allegations and evidence disclose the ingredients of the offence under the applicable law, rather than determine how a woman should dress, behave or respond to an alleged assault.”

Gupta often finds judicial insensitivity in sexual assault cases arising when judges assess allegations through their personal views on morality, gender roles and how a woman is expected to behave.

Often the survivor’s testimony is negatively interpreted by courts as examples above reflect, paving way for reliefs for the accused persons.

In 2022, the Karnataka High Court commented on the rape survivor’s conduct of having slept by doubting her decision to “go to office at night”, “consuming drinks”, going to the extent of noting that it was “unbecoming of an Indian woman” to claim that she had slept after being “ravished”.

Gupta stresses that such testimonies must be assessed within the legal framework governing sexual offences. “The judge is not a moral teacher on the subject,” she says, underling keeping at bay personal opinions on a woman’s “conduct” which influence judicial reasoning.

“Questions about why a survivor was out late, what she was wearing, why she went to a particular place, or why she allowed a kiss or hug should not be used to judge her character or credibility unless they have a direct legal bearing on consent or another ingredient of the offence,” Gupta notes.

Many a times, sexual offences often occur in private, Gupta says, making independent witnesses difficult to find while requiring courts to avoid “stereotypes or expectations” about how a survivor ought to have behaved.

“Your individual moral approach should not be imposed upon the victim while deciding the case,” Gupta said, adding that judges must keep personal opinions aside and decide cases on allegations, evidence and law,” she adds.

Vishaka judgment

In 1992, a rural social worker was gangraped for preventing a child marriage in their family as part of her work. The apathy with which law enforcement and the district court treated the case led to widespread outrage, and women’s groups came together to file a PIL to assert women’s right to safety at work.

In 1995, the district and sessions court in Jaipur acquitted five men, reasoning that it was “unimaginable that upper-caste Gujjar men would rape a Dalit woman”, implying “sexual purity and restraint”. The order said that the woman’s husband could not have been a “passive witness”, and since the accused were relatives, they could not have done such an act together.

The judgement eventually contributed to the formulation of the Vishakha Guidelines in 1997, which laid down the basic definitions of sexual harassment at the workplace. The Supreme Court, in its landmark judgment in Vishaka and ors v State of Rajasthan, laid down guidelines affirming the fundamental right to equality, to life and the right against discrimination for working women.

The nationwide outrage and criticism against this order reached the point where the Supreme Court had taken suo moto (on its own motion) notice of the matter on the letter written by “We the Women of India” through its founder president Gupta.

‘Moving beyond the perfect victim stereotype’

Supreme Court advocate Charu Mathur points out the problematic pattern in legal proceedings which often put focus on the victim’s lifestyle, or behaviour rather than the accused person’s actions and whether explicit consent was given.

Mathur argues today, consent is understood as an unequivocal and voluntary agreement to a specific sexual act, and absence of physical resistance does not amount to consent.

“A court should be asking whether there was consent,” Mathur says, “not whether the survivor behaved in the way society expects a victim to behave.”

The 2021 ruling in Aparna Bhat v. State of Madhya Pradesh saw the Supreme Court holding that the conduct of the victim is irrelevant and that the courts should not tread in that direction. The ruling negated the argument whether the victim had in the past consented or whether she behaved promiscuously, or whether she “behaved in a manner unbecoming of chaste Indian women”.

In her view, the credibility of a survivor’s testimony must be tested on evidence, not the stereotypes about how a ‘real victim’ should behave as the law had moved significantly from the approach reflected in the Mathura case, where courts often looked for physical resistance, injuries or immediate protest.

“Today, consent is understood as an unequivocal and voluntary agreement to a specific sexual act, and absence of physical resistance does not amount to consent,” argues Mathur.