This is a guest post by ARYA RAJE
The Indian Judiciary is often perceived as a progressive institution, perhaps one of the few in which Indians still retain some measure of faith. A recent case in the Supreme Court was lauded for asserting that there cannot be any compromise in a rape case, after the Madras High Court had suggested mediation between the victim and the accused. The decision may be sound, but what passed under the radar was that the judgement was couched in deeply problematic language:
“These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the “purest treasure”, is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay.”
This is not particularly unusual. The highest Court of our land, while adjudging cases of sexual assault, uses language which routinely strays into these territories. The Judiciary has fallen prey to the notion that Indian women, above all, else treasure their reputation, honour, chastity, purity, et all. “Virtue” attains primacy, a towering force which overshadows all else.
Let us not forget that women are completely destroyed by rape –
“Rape is not merely a physical assault – it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female”
Rape is perceived as a crime worse than murder. A rape victim might just be better off dead, according to our Judiciary, as her whole personality and humanity has been destroyed. Better to be dead than to suffer lifelong humiliation and shame, which Indian society will ensure that she feels, even if a woman wishes to move on with her life.
“Even in ordinary criminal terminology a rape is a crime more heinous than murder as it destroys the very soul of a hapless woman…. By betraying the trust and taking undue advantage of trust… he ravished the chastity of his daughter, jeopardized her future prospect of getting married, enjoying marital and conjugal life, has been totally devastated. Not only that, she carries an indelible social stigma on her head and deathless shame as long as she lives.”
This sentiment was echoed during the protests and uproar following the Nirbhaya case in Delhi in 2012 when Sushma Swaraj declared in the Parliament that even if the victim lived, she would be nothing more than a “zinda laash” (living corpse). A raped woman, apparently, is no longer her own person.
The crime devastates her entire life, making it impossible for her to ever have a consensual sexual or romantic relationship.
“She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia. She may not be able to assert the honour of a woman for no fault of hers. Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman”
Notwithstanding exactly what the Supreme Court means by “asserting the honour of a woman”, evidently what makes a society civilized is protecting the reputation of their women. Not their freedom, autonomy, or independence – but ensuring that their reputation remains pure and intact, presumably along with their hymens.
“A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e., her dignity, honour, reputation and chastity. Rape is not only an offence against the person of a woman, rather a crime against the entire society”.
All these quotes have been taken directly from Supreme Court judgements; several of them are recent, from 2013 and 2015. A cursory glance at High Court judgements will throw up similar gems about the reputation and honour of women. The threads of honour run deep in Indian society, such that even some of the most educated, intelligent, and purportedly broad minded people in our country insist on using language rife with sexism. When Judges of the Supreme Court believe and assert in their judgements that a woman is utterly destroyed by rape, and that reputation and chastity are the most cherished aspects of women, one wonders what the rest of society must think about rape victims.
It is true that the psychological trauma to a rape victim must certainly be addressed, an area which is sorely lacking in our socio-legal system. Further, these ideas about reputation and honour are also used to secure a conviction in rape cases, since it is believed that an Indian woman is unlikely to bring false rape allegations against a man knowing that it would sully her honour. Even in cases of child sexual abuse, High Courts have noted that parents would not jeopardize the reputation of their daughter; therefore it is likely that the child and her parents must be telling the truth.
However, the language of our Courts betrays that the primary concern is not the trauma caused to the victim and the assault on the victim’s bodily and sexual autonomy – it is a crime because it defiles the purity and reputation of the woman. It logically follows that according to this line of thought, a man can never be raped, and a woman cannot be raped by her own husband. It is not too long ago that a woman of “easy virtue” was also considered to be one who cannot be raped.
Rape is indeed used as a weapon to assert power and exact revenge upon women and their families, because of this very reasoning. It is used as a weapon during riots to humiliate and shame a community, and employed during war to wreak havoc, because of course, the rape of a woman is a crime upon the entire society. The rape of a woman is perceived not as an assault upon her, but upon the man to whom she belongs.
As long as we continue nursing these notions, we have handed to men the might to ‘destroy and devastate’ a woman for the rest of her life, merely by the power of a penis, or through any kind of sexual assault, rendering her unfit and unworthy. Families who have experienced sexual assault upon their daughters contemplate suicide because of the assault on their honour and dignity. Meanwhile, women like Suzette Jordan who dared to show their face and live their life after being raped, are denigrated by the paternalistic protectors of women who cannot conceive of a raped woman who believes that she is whole, and who behaves like a free person.
Court judgements which employ such language further perpetuate and propagate these ideas. Instead of acknowledging the right to bodily autonomy, they wax eloquent on shame and honour, as if a woman’s reputation is more important than her personhood. Instead of focusing on the importance of rehabilitation of a victim, counseling and therapy, they brood over the destruction of a woman’s personality and the end of her life. They do not condemn a society which looks down upon a woman who has been sexually assaulted; they condone and perpetuate the same idea. Not only do our judges betray their biases, they communicate to the people of India what they truly believe is the worth of a woman.
It is time our Courts recognize that the shame of sexual assault lies upon the perpetrator, not the victim. Rather than preaching a “deathless shame”, to women who are ordered to be living corpses because of a single crime, violent and cruel though it may have been, our system need to stand by them as they move on with their lives. A woman may not even be devastated by rape – in which case, more power to her. It does not diminish the severity of the crime or the punishment to be suffered by the perpetrator in any way.
 It should be noted here that in criminal jurisprudence, all crime is a crime against society, which is why we have the State prosecuting cases. However it is telling here that the SC made a distinction that rape specifically is a crime against society.
[ Arya Raje is a Masters in Law and a practicing advocate in Mumbai, focusing on human rights litigation and advocacy, including cases of sexual assault. ]