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Thursday, January 20, 2022

Justice means registering the pain

Life is an ongoing ecstatic slide show. It never, ever occurs in linear projection though many may wish it to. In interpreting the rules of ...

Written by Naina Kapur |
June 10, 2004

Life is an ongoing ecstatic slide show. It never, ever occurs in linear projection though many may wish it to. In interpreting the rules of life which manifest as law, judicial systems sometimes ignore that reality to the detriment of both life as well as law. The recent judgment of the Supreme Court of India in Sakshi vs Union of India is one such occurrence. Seven years ago, the Delhi High Court found that an eight-year-old child penetrated in three orifices by her father is neither a rape nor an unnatural offence. Instead it is a mere “hurt”, an outrage of modesty. Our favourite dinosaur. This motivated an appeal to the Supreme Court of India. Alongside, Sakshi filed a public interest petition urging the court to seriously consider an interpretation of rape which could finally alter a status quo view of life, by altering our perception of it.

In legalese, the history of ‘rape’ has been about the mechanics of ‘sex’. Rarely has it been about the experience of pain. Pain is what human rights is all about. It is not a non-consensual technicality. The petition sought the experience of other nations for guidance. To South Africa, Canada, the UK, where a contextual approach by superior courts has liberated them from the technicalities of language to the compassionate embrace of real experience. On that basis the petition sought a deep, rich understanding of rape as a violation of dignity, integrity and equality. Unfortunately, another form of consciousness prevailed in the present judgment, what one enlightened writer described as “tribal” (ie, group) belief.

The value of tribal thinking is that it finances loyalty to a static belief. In the present case, the belief is that change prophesises chaos. To maintain that belief, the judgment draws upon catastrophic reasoning. On the domestic front, the tribe digs its heels in deep. First, in support of a “century” old thought, it purports to speak on behalf of our “big country of over 100 crore people” (otherwise why mention this). It goes on: “Normally, the first reaction of a victim of crime is to report the incident at the police station …” Really? How does such an assumption square with the vast under-reporting of rape, the barriers of family ‘honour’, shame and fear that complainants live in trauma over or research which bears out the police station as a place of last resort for a rape complainant? From here on, tribal thought collects together a colossal wave of assumptions to drown the merest morsel of change: “police ….are not highly educated…but they have studied the basic provisions of the Indian penal code..”; “every student of law” is taught “the existing definition of ‘rape’”; and,”the entire legal fraternity of India, lawyers or judges, have the definition…engrained in their mind…”

Does this then mean that if something in our “engrained” thinking is so grossly prejudicial that it negates the impact on the life experience of those in pain, we shouldn’t budge? Fear becomes the operative answer to that question as it does to most of the judgment. “An exercise to alter the definition of rape…by a process of judicial interpretation is bound to result in a good deal of chaos and confusion and will not be in the interest of society at large…” Even if society at large includes women and children, worst affected by that static thought.

Some news items have stressed the ‘landmark’ procedural directions made on the petition’s suggestions. No doubt, permitting a screen/barrier between an accused and rape complainant, placing questions to a complainant in writing to be put by the presiding judge in dignified terms, and permitting breaks in witness testimony hold remarkable possibility. But form without substance renders the most remarkable potential, sabotaged.

By its own admission the court noted the “alarming” increase in cases of child abuse and rape. Yet it sponsored reasoning which will do nothing to stem that tide. It brought no wealth to the poverty of tribal attitudes which have continued to haunt sexual assault law. Sexual wounds evoke fear. That fear incarnates as linear thought and safe choices. Rising to a higher operative wisdom which takes us beyond the muck of tribal thought to transformative change, requires courage. Perhaps that, too, will manifest itself one day in the law of sexual rights because of, not in spite of, our judicial system.

The writer is director, Sakshi

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