Author: Thanushree P S, a student at JSS Law College
Laws are said to evolve with time. But what really brings about a change in the law? – It is the Society. Individuals evolve with time, resulting in changes in society as a whole. A major incident converts the individual anger into public outrage and this is the final push that results in changes in the Laws of the Country. India has always faced problems with rape laws and their implementation, much to the eyer of the general public. The loopholes and arbitrariness present in the laws governing rape in India are too many to begin with. However, as mentioned before, only after the general public starts feeling discontented with the law at hand, a change can be brought. The Mathura Rape case was on such incident of Custodial Rape which shook the country and changed the landscape of the rape laws in India.
Background
It was 1972, a young tribal girl named Mathura was living with her brother Gama. Mathura was working in Nushi Bai’s house to lead her life and developed a relationship with Nushi’s nephew, Ashok and agreed to marry him and move to their house. But Mathura’s brother was against this relation and thus filed a complaint in the Desaiganj Police Station in Gadchiroli district. Soon, Mathura, Ashok, Nushi and her husband were summoned to the Police Station. After basic interrogation, the two constables- Tukaram and Ganpat- asked Mathura to stay back and commanded everyone to leave. Later, the two constables raped the 14 – 16 year old Mathura inside the station. People outside the station grew suspicious and started shouting for her, but received no response, and the noise attracted the crowd near the station. When Mathura came out of the station and informed the people about the ruthless action of the constables. Agitated by this, the people threatened to burn down the station and forced the head constable to take down Mathura’s statement against Tuka Ram and Ganpat.
The Case
Mathura was taken to Chandrapur district headquarters for medical examination and travelled for over 140 kms. After almost 24 hrs after the rape, the medical officers examined her by using two-finger test to determine her virginity, and reported absence of injury on her body.
The Case went to the Sessions Court with the help of a young lawyer, Vasudha Dhagamwar, who fought the case pro bono. The burden of proving the act was on the prosecution- Mathura, and in the absence of the POCSO Act, she was neither counselled nor given shelter. The Chandrapur Sessions Court acquitted the defendants by stating that the minor girl was habituated to sexual intercourse. By referring to the medical reports, the Court stated that there were no signs of force upon the girl, and it was consensual. As per Section 375(6) IPC, 1860, sex with women below 16 years of age was assault, irrespective of consent, and since the evidence of Mathura’s age is insufficient, the Court acquitted both the defendants as innocent.
Upon appeal, the Bombay High Court differed its view, and differentiated between consent and passive submission. The Hon’ble High Court held that “Mere passive or helpless submission of the body, and its resignation (forbearance) to other’s lust induced by threats or fear cannot be equated with the desire or will, nor can furnish an answer by the mere fact that the sexual act was not in opposition to such desire or volition.” The Court was also of the opinion that absence of semen in the private parts of the victim was due to the fact that she was examined by the medical officers nearly after 24 hrs of the incident, and thus traces of semen was not easy to obtain. The High Court also said that the Constables were complete strangers to the girl and thus there is no possibility of her consenting to the sexual act. As the constables were in dominant and powerful position and the minor tribal girl could not resist the act, the Court held them guilty of sexual offence and sentenced Tukaram for one year of imprisonment as he did not commit the rape and convicted for sexual assault while Ganpat was sentenced to five years of imprisonment.
The High Court’s verdict was challenged in the Hon’ble Supreme Court and the SC reversed the guilty verdict and acquitted the two constables. In the opinion of the Apex Court, the consent was not passive and it placed importance on absence of marks of injury on the girl’s body as per Sec 375(3). the Court also said there was neither any signs of resistance not an attempt to raise an alarm as per Sec 375(2), and thus the act was done with her consent. The Court took into consideration the findings of two finger test and concluded the matter as a ‘peaceful affair’.
Aftermath
The decision of the Supreme Court created a huge havoc in the country. The citizens started protesting against the verdict. Soon after the Judgment, many eminent law professors like Upendra Baxi, Raghunath Kelkar and Lotika Sarkar of Delhi University and Vasudha Dhagamwar of Pune wrote an open letter to the then Chief Justice of India discouraging the judgment of the Hon’ble Court regarding Mathura’s case, which read- “This is an extraordinary decision sacrificing Human Rights of women under the Law and the Constitution”. It also showed the angst of the civil society to the Supreme Court by asking, “Consent involves submission, but the converse is not true. From the facts of the case, all that is established is submission and not consent…Is the taboo against pre-marital sex so strong as to provide a license to Indian police to rape young girls?”
The letter portrayed the reaction of the country towards the Supreme Court which failed to protect young rape victim from the cruel lust of society and system of law. Many women and feminist organisations like Saheli were formed to revolt against this decision. This also led to the formation of first feminist group against rape in India, ‘Forum Against Rape’ in 1980, which was later renamed as ‘Forum Against Oppression of Women’. Many social workers who act for the protection and rights of women from various parts of the country met and supported Mathura.
However, all these revolutions did not succeed in opening the eyes of the Supreme Court, as it ruled that there was no locus standi (legal standing) in this case in favour of Mathura and dissented to reopen the case.
Legal Reforms
The large-scale opposition to the Courts’s verdict and flaws of rape laws in the country eventually reached the Parliament and a law more sensitive to the feelings of the victims that protected their human rights and dignity had to be drafted. Thus, the Criminal Law Amendment Act, 1983 was passed, which made magnificent changes in the rape laws of the country.
- The Indian Evidence Act- Section 114(A) was added to the Evidence Act which brought the principle of non-consent, which protected the dignity of the victim. It states that is a rape victim says that she did not consent to the sexual act, then the court will presume that she is telling the truth and thus the act was against her consent.
- The Indian Penal Code- Section 376 of the Code was amended and new Sections 376(A), 376(B), 376(C) and 376(D) were added which aggravated the offence of rape when committed by person of authority. It also made the offence punishable with not less than seven years.
- It also shifted the onus of proof to the accused not to the victim or survivor.
- The Amendment also added provisions of in-camera trail and made trail and investigation of rape victim in-camera compulsory.
- It also laid emphasis in protecting the identity of the victim.
- The Amendment also said that women cannot be called to and kept in police station at night.
Mathura never got to know that her case led to the Criminal Law (Amendment) Act, 1983. These changes never had an effect in her life, and the case was never opened. Even though new laws were formed for the benefit of victims, Mathura, who was humiliated under a relentless public gaze, never got justice.
After all the verdicts, protests and amendments, the Courts started taking rape and other sexual offences more sensitively. The patriarchal and orthodox approach of the society and courts, where the victim was look down upon and was being questioned about her sanctity has been changed, and the matters of Rape and other sexual offences are being dealt sensitively. The court now tries to protect the dignity of the victim, provide her emotional and mental support. The Mathura case, also a case of custodial rape, made way to protect women and children from assault in the prison or custody irrespective of them being criminal or culprit. The case is considered a major turning point regarding the protection of women in light of increasing violence against women.
