CRIMINAL LAW

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The 'Ultimate Violation of Self' : Reflections on Judicial Discourse on Attempted Rape
by Upendra Baxi

Cite as : (1998) 6 SCC (Jour) 1

I

In spite of the waywardness of adjudication, it has to be acknowledged that we have crossed many a milestone against judicial patriarchy since Mathura1. The Supreme Court of India's adjudicatory feat in State of Maharashtra v. Rajendra Jawanmal Gandhi2 merits both acknowledgment and applause. At the same time as we consider the itinerary of judicial proceedings in this case, it is clear that feminist sensibility is not evenly spread across the judicial checkerboard. Almost always the trial courts are deeply imbued with the mission of penalty in rape cases; almost always the High Courts mitigate (a look at the case recited by the Supreme Court in this very case, confirms the tendency of the trial courts to take the offence seriously and of the High Courts to reverse well-grounded convictions). And in a jumbled way the Supreme Court does, on the whole, though not with an integral consistency speak rigorously on behalf of the violated women.

II

The facts are almost always brutally simple. In this case, the prosecutrix, a student of fourth class, while returning from private tuition in the morning was accosted by the accused and asked to help him with his Maruti car. As soon as she approached the car, she was forcibly pushed into it and the accused tried to have sex with her.

The noteworthy feature here is theatre of attempted rape (increasingly present also in the commission of rape). And the Sessions Court sentencing discourse is luminous on the linkage of the regime of property which sites the rape behaviour: in this case, as is now rampant, the so-called peoples' car: Maruti. The political discourse on Sanjay Gandhi and the Maruti car, and commissions of inquiry, which followed, and the current bloodletting between Suzuki and Government of India, did not anticipate that the peoples' car would be a vehicle of rape. But so it has increasingly become especially when police regulations on putting dark colour screens on windows of the car are so effete. It will take me far afield to ponder the semiotics of names entailed: Jawanmal (roughly translatable as the youth wrestler) and the name "Gandhi", which as far as I know has never been associated with rape. The adjudicatory process, for obvious reasons, could not dwell on this symbolism of evil. But it would have been helpful had the learned counsel (Ms Indira Jaising) sought an additional relief criminalizing the acts of darkening the windowpanes of peoples' or any other cars and vehicles. It is true that even radical feminist agenda has to descend to such trivia but it is also true that that the technology of rape is also yuppie-mobile in an obscenely globalizing India.

Charged with the rape of a minor woman ("girl" still being the judicial expression of social identity), and under the Bombay (now Mumbai: the politics of renaming cities is another discourse) the District Court, Satara, passed concurrent sentences on both counts. The sentence, was appropriately severe: seven years' rigorous imprisonment and a fine of Rs 5000 under Section 376, Indian Penal Code, and six months' rigorous imprisonment under the Bombay Children Act with a fine (Rs 500). Interestingly, and probably for the first time in India, the "peoples' car" was "ordered to be forfeited and confiscated to the State".3 The learned Judge in Satara, unguided by the fierce global women's rights movement, reached a rare result: the property of rapists should stand confiscated.

The High Court upheld the conviction under the Bombay Children Act and enhanced the fine to Rs 40,000. But it reversed the conviction on attempt to rape. Rather, the accused was convicted under Section 354 of the Penal Code and sentenced to rigorous imprisonment already undergone (33 days)! And the Court ordered the return of the Maruti car. In so ordering, the appellate court altogether missed the historic significance of the trial court's order. The Supreme Court seems to concur.4

That significance lies in demobilizing rape offenders. But it carries a larger message for all offences against women and not just in terms of confiscating property, which is certainly crucial. But property, in case of offences against women, is the very site of the cruellest practices of patriarchy. I have no doubt that expropriation of such sites would have a far greater deterrent impact than mere imprisonment and monetary fines. This would certainly be the case in relation to dowry murders.5

III

What was the nature of offence committed by Jawanmal? He "laid" the "girl" (as their Lordships put it) on the seat of the Maruti car and then "laid" himself on the top of her. He "pulled down her knickers and also opened the zip of his pants and took out his male organ" which then he pressed "on the private parts of the girl". (Even Victorian prudery is excelled here!) But there was no penetration, given a premature "discharge". The Indian Penal Code, even the post-Mathura one, still requires vaginal penetration by "male organ" to constitute the offence of rape! The trial court, sensibly enough, convicted on the charge of attempted rape and the Supreme Court, wisely and well, restored the conviction.

The High Court proceeded to take a male fundamentalist position: "there was no rupture of hymen and the girl was still a virgin"6. The conviction then was sexually reassigned to use of criminal force, not an attempt to rape!

The High Court's reasoning is astonishing, to say the very least. First, the "knickers of the girl were only pulled and not removed". Second, the knickers had semen stains; and it is "not the case of the prosecution that it (the knickers) was used by the accused for wiping her organ". Third, her "legs were neither separated nor lifted". Fourth, the fact that the victim "was given a bath" and she complained of "some pain and burning sensation" which did not prevent her from being sent to the school. This did negate any suggestion of attempted "rape". Fifth, whatever symptoms the "girl" had as a result of this incident were also compatible with the possibility not of sexual activity but of poor hygiene: "exicastion (sic excision) of this type is common enough in young children as a result of poor hygiene: and scratching may result "out of worm infection"7 Overall, then, attempt at rape was neither committed nor proved. At worst, it was a case of use of criminal force violating the modesty of a woman and of acting indecently (under Section 57 of the Bombay Children Act, 1948).

Not having had the benefit of full access to the High Court judgment is a handicap. But prima facie, from the summation offered by the Supreme Court, it is permissible to conclude that an attempt to rape must be a successful one at least in the sense that there was an attempt to penetrate such that would entail "rupture of hymen" and loss of virginity.8 The High Court is, in effect, saying: "No vaginal penetration, no rape; no rape no attempt to rape!".

Premature ejaculation in the course of attempted rape is, for the High Court, sufficient to negate any such charge. The law's body or the body in Indian appellate law is relentlessly consummation-oriented. But that is another story. Strictly, in terms of criminal law and jurisprudence, it is the actus reus alone and not the mens rea, which is decisive.

Unsurprisingly (but still owing a very great deal to the judicial sensitivity of Justices M.K. Mukherjee and D.P. Wadhwa) the Supreme Court curtly dismisses (and rightly so) the High Court ruling by simply asserting that the "accused intended to commit rape on the girl"9. The curt gesture of dismissal is wholly justified. But it also entails the loss of discursive judicial elaboration on why such reasoning was fallacious. The Supreme Court also foregoes its obligation to pass judicial strictures on the High Court's performance. The High Court's performance provided a most apposite situation warranting severe strictures.

IV

Eleven long years intervened between the commission of the offence and the final determination of the sentence. Though this fact "troubled our minds a great deal", their Lordships had no doubt in their minds that "no person who commits or attempts to commit rape shall escape punishment"10. The sentence of five years' rigorous imprisonment and a fine of Rs 40,000 was considered appropriate to meet the "ends of justice"11.

This is a welcome enunciation of national judicial policy and one hopes that it will, for the reasons given12, be followed in the future with unwavering consistency especially by the Supreme Court itself. And not just in cases of sexual assault but also in all situations entailing violence against women. Lawyer-client engineered delay (symptomatized by the fact that ace criminal lawyers tend to pursue manipulation of adjudicatory time for extortionate, and usually made untaxable, fees) does not, simply, warrant any solicitude for the accused. The Supreme Court, rightly, holds that billionaire barristers may not thus "rent" national judicial time for their own gains, especially when situations involve unconscionable violation of women's right to be and to remain human.

V

A troublesome aspect of this otherwise progressive decision is the revocation of the leave to appeal to the Nagrik Kirti Samiti, Kolhapur, a social action group whose fierce exertions made it difficult for the State not to appeal against the High Court's verdict. The Supreme Court makes the success of peoples' movement against rape into its very failure! This is accomplished by the denial of any voice or representation to the group just because the State of Maharashtra did, after all, prefer an appeal. If, indeed, as the Court asserts that the crime of rape is a "crime against the whole society"13 there seems no justified ground in disallowing people's participation in the administration of criminal justice in ways which enhance prosecutorial vigour and accountability. It should be a matter of judicial notice that very often, even now, as concerns violence against women not merely is State prosecution lackadaisical but is almost always solicitous of the rights of male, even when they are rapists. (Or perhaps because they are such.)

Apparently, the activists, whom it saw as usurping the rule of law, irked the Court. If they did in fact furthered trial extra-curially ("a trial by press, electronic media or public agitation")14 the eminent rule of judicial caution, in the service of due process of law guaranteeing a right to fair trial should be rigorously invoked and sternly applied.15

But was judicial disenfranchisement of public interest/social action petitioners in this case justified? But for these exertions, the State would have filed no appeal. But for these exertions the Supreme Court would have also not have had the opportunity to emerge as a champion of human rights of rape victims. Every possible rationale indicates the fairness of a judicial decision which would have inscribed the social action petitioners as amicii. Their Lordships would have been, however, perfectly justified in indicating the "error" of their ways in strategies of pursuit for justice for Indian women.

This could have been done in several ways. If the activist campaign had the intention or the impact of lowering the dignity or integrity of judicial process, the Court could have indicated lakshman-rekhas (bright lines), which should never be crossed in pursuit of justice. What is more, given the accumulated experience of ways in which High Courts perform in rape cases in appeal by the accused, the Supreme Court ought to have some rather stringent guidelines concerning the scope of discretionary power of the State to file an appeal against acquittal in rape cases. The fundamental duty of all citizens (under Article 51-A of the Constitution) to renounce practices derogatory of women at least reorientates the scope of this discretion. Compared with the liberality with which this discretion is exercised in other situations (the State still remains the most precociously active appellant before the Supreme Court) the frugality (especially in Maharashtra even despite Mathura) of State behaviour in rape acquittals by the High Court is quite striking.

Given the overall reluctance of State Governments to appeal even the most manifestly infirm reversal of convictions by High Courts and the differentially available campaign by social and human rights activists, there exists indeed a strong case for the Supreme Court itself to enact a rule of practice that all such cases be automatically placed before it as if the State had come before it on appeal. Not merely is this a feasible suggestion; it is eminently warranted by the constitutional obligation under Article 51-A which extends to citizen-justices of the Supreme Court as well.

In the interim, the device of guidelines, installed either in a future decision or by way of communication to all appropriate State authorities, is constitutionally sensible, especially after the judicial coup de grace in Vishaka16. Such guidelines would at least entail:

- the constitution of a high-powered committee in the State Administration headed by the Advocate General17

- reasoned analysis of grounds warranting denial of appeal, especially in the light of the rate of reversal of High Court decisions by the Supreme Court

- consultation with the prosecutrix, her relatives and with non-party political active women's groups with proven record of pro bono interventions for protection of women's rights

- a written memorandum of reasons for not proceeding on appeal, to be filed as a matter of constitutional obligation on every occasion of social action petition before the Supreme Court of India.

Such measures are necessary not only to impart gender orientation to the administration of justice and to maximize institutional efficiency of the Apex Court (burdened with a heavy overload of justice-expectation) but also to prevent and punish "the 'ultimate violation of the self' " of women.18

1. 1See Tukaram v. State of Maharashtra, (1979) 2 SCC 143; also Baxi et. al.: "Open Letter to the Chief Justice of India", (1979) 4 SCC (J) 17 Return to Text
2. (1997) 8 SCC 386 (hereafter referred to simply by page numbers of the report). Return to Text
3. p. 389 Return to Text
4. In that it sub silentio upholds the High Court reversal of expropriation of the vehicle. But see the observation on p. 397, which suggests that since there was no appeal against this aspect of the High Court's ruling "we need not go into the scope and intent of Section 452 CrPC...". Return to Text
5. In late eighties I suggested to a national meeting of Mahila Dakshta Samiti a whole programschrift of civil sanctions for dowry offences including expropriation of property, withdrawal of civic facilities such as car, television licences and severe rationing of public goods such as electricity and power. I pleaded for a form of legislative reform against dowry, which would focus on civil sanctions sufficiently powerful to foil the middle class consumption patterns, which play such a role in dowry exactions. A wise management of sanctions, civil and criminal, is essential to control dowry criminality, which continues to flourish despite escalation of criminal sanctions. It is necessary, in my opinion, to deprive people who seek dowry from the material and status-enhancing gains of such criminality.
   I regret to have to state that the suggestions were wholly cold-shouldered by women's movement as well as the law reformers. In this respect a solitary District and Sessions Judge at Satara has registered a law reform potential; typically it has fallen on hearing-impaired appellate judicial ears! Return to Text
6. p. 396 Return to Text
7. The High Court here relies upon Modi's Medical Jurisprudence: see pp. 394, 396. Return to Text
8. p. 396 Return to Text
9. p. 397 Return to Text
10. p. 403 Return to Text
11. p. 404. It did not matter for this purpose that the victim's father already, under the order of the learned High Court, already recouped the amount of Rs 25,000. Return to Text
12. See pp. 398-399, 403-404. Return to Text
13. p. 403 Return to Text
14. Ibid Return to Text
15. I do not have access to materials, which led Their Lordships to incline to this view in this particular setting. Return to Text
16. Vishaka v. State of Rajasthan, (1997) 6 SCC 241 Return to Text
17. Despite the noted fact that some Advocate Generals are veteran criminal lawyers, specializing in reversal of rape conviction by High Courts! Return to Text
18. p. 399, quoting from the 84th Report of the Indian Law Commission. Return to Text