In the unpredictable recesses of the Indian judicial system, in tiny courtrooms and large ones, in the form of acrid questions from defence attorneys – rape survivors are asked a whole bunch of uncomfortable questions. Sometimes, portrayals of their wantonness and their must-have-also-wanted-it reign supreme; sometimes, ‘character assassination’ is the drug of choice. More often, though, they’re disbelieved.
When a sessions court in Mumbai, therefore – during a bail hearing on a rape case – observes that a delayed FIR can introduce “coloured version, exaggerated account or concocted story”, then it’s not too far removed from the culture of toxicity survivors’ accounts are usually subjected to.
‘Courts Need to Expand Their Understanding’
Actor Alok Nath was granted bail on 5 January, Saturday, in the charge of rape brought against him by writer-director Vinta Nanda. In its order granting bail, the court said some of the above – while also seeming to comment on how curious it was that the “complainant has remember (sic) the entire incident but she did not remember the date and month of incident”. The court mentioned the possibility that the “(bail) applicant has been falsely enroped in the crime”.
So saying, it granted bail – and “fundamentally, there’s nothing wrong with that,” said senior advocate Rebecca John to The Quint.Rebecca John, Senior Advocate“But the court could have considered and remembered the wave of cases that emerged during #MeToo and been more circumspect. These rather damaging remarks were totally unnecessary.”
John understands the court’s decision of granting bail in the context of the delay, but fails to see the relevance of its comments:Rebecca John, Senior Advocate“Sure, when a belated statement/accusation is made, courts tend to look at it with a certain degree of circumspection. But the court could have just said – ‘considering the delay, we’re granting the bail’ – and left it at that. I thought it was very unfair to the complainant to highlight the delay as the sole factor.”
Aishwarya Bhati, advocate-on-record, Supreme Court, cautions against reading too much into the order, opining that “this is just a consideration of bail – acquittal or convictions are another ball game. So things might be different then. What the delay in the reporting of the FIR did, was make it easier for bail to be granted. Usually, in more ‘immediate cases’ of assault, bail is not that easily granted.”
Bhati, however, agrees that systems tend to veer against – rather than uplift – the survivor.Aishwarya Bhati, advocate-on-record, Supreme Court“Our judicial, administrative and executive systems usually add insult to the injury. I just hope no one is dissuaded by the court’s words. I hope one isn’t scared by ‘it’s my word against his’.”
Survivor’s Testimony ‘Evidence Enough’
Yet Bhati reminds that in the eyes of Indian law, a rape survivor’s testimony is “evidence enough”.
“The testimony merely needs to be reliable, cogent and trustworthy. Even a medical examination is not necessary. Gone are the days of the horrific two-finger test perpetrated on women who alleged rape.”
(Incidentally, Vinta Nanda had been asked by Mumbai Police to take a medical exam – 20 years after her rape – with the cops claiming it was mere “protocol”.)
Reiterates Rebecca John,Rebecca John, Senior Advocate“The Supreme Court has itself mandated that the solitary evidence of the prosecutrix is sufficient provided that it is of ‘sterling quality’. In such a case, a court judgement such as the one in Vinta Nanda’s case which made such observations is very discouraging. It is NOT something courts should say in cases of sexual assault. Women have trouble verbalising their sexual assault anyway in our hierarchical power structures – and this dissuades a survivor from speaking out.”
Delay in reporting one’s rape is often trumpeted as a sign that one is lying, that one has been biding one’s time – or simply speaking now with unscrupulous motives. Several social media critics of the Me Too movement decried the women’s accounts, alleging that all the years of silence must somehow mean lesser pain.Ashif Shaikh, Founder, Jan Sahas, an NGO that works with survivors of sexual violence“In my experience, survivors’ versions don’t usually change. Many people believe that they are coloured over the years – but the pain, the agony and the trauma don’t go away. We often work with survivors whose cases were reported some 20 years ago and justice still hasn’t been provided. The argument usually given is that there are false reports galore – but statistics don’t support this. It’s a pity the justice system usually protects the accused, instead of giving credence to the survivor’s version.”
As John stresses, “empathy is the way forward – particularly in the wave of Me Too cases that we’ve seen. Courts need to expand their understanding and stop subjecting survivors to such scrutiny. And then (we) say – ‘women don’t report’.”