ROLE OF JUDICIARY IN RAPE CASES

Submitted to:

Dr. Archana Shyam Gharote

Submitted by:

Taruna Shandilya

Roll No. - 180

Semester – VII, Section-B

Hidayatullah National Law University

Uparwara Post, Abhanpur, New Raipur – 493661 (C.G.)

1|Page
 ACKNOWLEDGMENT
I, Taruna Shandilya, feel myself highly elated, as it gives me tremendous pleasure to come out
with work on the topic “Role of Judiciary in Rape Cases”. I, started this project a month ago and
on its completion I feel that I have not only successfully completed it but also earned an
invaluable learning experience.

First of all I express my sincere gratitude to my teachers who enlightened me with such a
wonderful and elucidating research topic. Without her, I think I would have accomplished only a
fraction of what I eventually did. I thank him for putting his trust in me and giving me a project
topic such as this and for having the faith in me to deliver. Her sincere and honest approach have
always inspired me and pulled me back on track whenever I went off track. Sir, thank you for an
opportunity to help me grow.

I also express my heartfelt gratitude to staff and administration of HNLU in library and IT lab
that was a source of great help for the completion of this project.

Next I express my humble gratitude to my parents for their constant motivation and selfless
support. I also express my gratitude to all the class mates for helping me as and when required
and must say that working on this project was a great experience. I bow my head to the almighty
god for being ever graceful to me.

Thanks,

Taruna Shandilya

Roll no. – 180

Semester – VII , Section – B

2|Page
 TABLE OF CONTENTS

1. Acknowledgment ……………………………………………………………………… 2

2. Introduction ………………………………………………………………………….. 4-5

3. Research Methodology ……………………………………………………………….... 6

4. Research Question ……………………………………………………………………... 6

5. Research Objective …………………………………………………………………….. 6

6. Hypothesis ……………………………………………………………………………… 6

7. Overview of Literature ………………………………………………………………… 7

8. Hypothesis ……………………………………………………………………………… 7

9. Source of Data……………………………………………………………………………..8

10. Scope and Limitation ………………………………………………………………........8

11. Chapters -

 Establishment of Jus Cogens …………………………………………………..……...9-10

 Recognition and status of norms (landmark judgments)……………………………. 11-13

 Guidelines overlooked…….. …………………………………………………….…… 14

12. Conclusion……………………………………………………………………………15-16

13. Bibliography……………………………………………………………………………17

3|Page
 INTRODUCTION
“We have never seen such brutality all over lives” was the statement of the doctors in Nirbhaya’s
case who was brutally gang raped which led to multiple organ failure and ultimately to her
untimely death. The death of this 23 year old physiotherapy student raised the question, “Is a
woman’s dignity and life worth anything in this country?”  The answer to this is in negative.
Because first of all, our laws are lax and secondly there is lack of intention to implement these
laws properly. Only judiciary has taken some stringent measures from time to time to lay down
the landmark judgments.

Verma Committee appointed to find measures for prevention and prosecution of sexual assault
on women observed as: The need of the hour is to ensure speedy justice. The abysmally low
conviction rates for crimes against women are worrisome. Apart from implementing police
reforms, we also need to ensure that there are adequate number of judges to hear the rape cases
and other cases involving crime against women. Thus, the need is to augment the number of
judges to make sure that justice is delivered in a prompt manner. We are in dire need of fast track
courts to ensure speedy justice in rape and cases of sexual harassment and domestic violence. We
also need a time-bound action plan by states to deal with pending cases of crimes against
women. It is heartening to note that the constitutional courts in India have developed a fine
feminine jurisprudence but unfortunately, the principles and rules developed by the courts for the
protection of women against sexual assault have not been implemented in true letter and spirit.

 Rape is a crime, which has a devastating effect on the survivors; it has been described as a
“beginning of a nightmare”. The aftershocks include depression, fear, guilt-complex, suicidal-
action, diminished sexual interest. etc., “one becomes afraid of’……..writes a victim, “half the
human race”. Referring to the pitiable condition of women in society Mr. Justice S. Ahmad
observed that “unfortunately, a woman in our country, belongs to a class or group of society who
are in a disadvantaged position on account of several social barriers and impediments and have
therefore, been victims of tyranny at the hands of men with whom they, unfortunately, under the
Constitution “enjoy, equal status”. “Women also have the right to life and liberty; they also have
the right to be respected and treated as equal citizens. Their honour and dignity cannot be
touched or violated. They also have the right to lead an honorable and peaceful life”. Rape is a

4|Page
stigma which exists in the society from a long time. The dictionary meaning of word rape is “the
ravishing or violation of a woman.” The rape victim i.e. a woman as woman cannot commit rape
due to biological reasons. She is traumatized after the event; it is very difficult for a woman to
come out of this trauma. Rape in India is a cognizable offence. There are many provisions in
various Acts. The word rape is legally defined u/s 375 of Indian Penal Code, 1860. It defines the
rape and also prescribes its punishment. Whenever a man penetrates or does sexual intercourse
with a woman without her consent or will it amounts to rape. Penetration here means that only a
slightest of the touch of penis to vagina amounts to rape, unruptured hymen of woman does not
prove that rape was not committed. There are exceptions to it also i.e. when a man does sexual
intercourse with his wife who is above 15 years of age. The rape law under Indian Penal Code
had gone through a lot of amendments. In 1983, amendment was made and S. 376(2) i.e.
Custodial rape, S. 376(A) i.e. marital rape & S. 376(B to D) i.e. Sexual Intercourse not
amounting to rape were added.

5|Page
 RESEARCH METHODOLOGY

This research is descriptive and analytical in nature. Secondary and electronic resources have
been largely used to gather information and data about the topic.

Books and other reference as guided by the faculty have been primarily helpful in giving this
project a firm structure. Websites, dictionaries and articles have also been referred.

Bibliography has been provided at the end to acknowledge the same.

RESEARCH QUESTION
For the purpose of this research work there are three question arising. Which are mentioned
below :

1. How was the norm of Peremptory norm was originated and established?
2. Till what extent the norm of Peremptory norm is accepted and what is its position in the
International Community?
3. What are the actual and original effect of Peremptory norm in the International Community ?
4. What are the legal effect of Peremptory norms in the International Community?

Research Objective
The objective for the following research work is to observe the Jus Cogens norm meticulously
and study the same deeply. The research work also includes the study on its existence and it
working. The effect of Jus Cogens in the International community has been also the cause of the
research work.

6|Page
 HYPOTHESIS
The following research work consist observation of study on the norm of Jus Cogens. For the
Purpose of this research work, Jus Cogens is assumed as a norm. Jus Cogens is also known as
peremptory norm which was originated in the Vienna Convention on Law of Treaties of 1969.

The Peremptory norrn refers to certain fundamental, overriding principles of International Law,
from which no derogation is allowed. The research paper has analyzed the whole story about the
norm and has mentioned some essential thing about it. Since the origin of the norm there have
been many strife regarding the norm and its whole existence but it has remained untouched till
now.

OVERVIEW OF LITERATURE
1. International Law, Antonio Casseese, Second Edition, Oxford University Press.

In this book the Scope of Jus Cogens norm has been discussed and also the origin of norm is also
has been discussed. The book has also discussed about the legal effect of the norm. I have
picked the scope and the effect from the following book.

2. International Law, Malcom N. Shaw QC, Sixth Edition, Cambridge University Press

This book have discussed about Jus Cogens and its consequences. The book have also discussed
the Vienna Convention. I have picked up the consequences of invalidity from jus cogens from
the following book.

3. International Law and Human Rights, Dr. H.O Agrawal, Twentieth Edition, Central Law
Publications.

This book consists of explanation of peremptory norm. The norm has been explained in this
book briefly. But the book helped in understanding concept preciously and also helped regarding
its implementation.

7|Page
4. Public International Law, Ian Brownlie, CBE, QC, FBA, Seventh Edition, Oxford University
Press.

This book contains of study of jus cogens in a precious manner. The book have discussed about
the role of Jus Cogens in International Community. I have picked up some of the theories of
effect of jus cogens from the following book. I have also used the book to understand the norm
properly.

SOURCE OF DATA

This project report is based on analytical and descriptive Research Methodology. Secondary and
Electronic resources have been largely used to gather information and data about the topic.

Books and other reference as guided by Faculty have been primarily helpful in giving this project
a firm structure. Websites, dictionaries and articles have also been referred.

SCOPE AND LIMITATIONS

The research work has been framed inside the general effect of jus cogens. The project doesn’t
exceeds the concept of peremptory norm. The research work revolves around the consequences
of the norm. It does not cover any other thing rather then its history and the position in the
International community. The research work has not excluded the essence of the norm.

8|Page
Establishment of Jus Cogens

 Role of judiciary:

In our country Judiciary is known as the independent wing of government. This independent
Judiciary has two roles: 1) the traditional role i.e. to interpret the laws, and another is 2) Judicial
activism i.e. to go beyond the statute and to exercise the discretionary power to provide justice.
Our Indian judiciary can be regarded as a creative judiciary. Credibility of judicial process
ultimately depends on the manner of doing administration of justice. Justice K. Subba Rao
explains the function of the judiciary as thus:

 It is balancing wheel of the federation;

 It keeps equilibrium between fundamental rights and social justice; it forms all forms of
authorities within the bounds;

 It controls the Administrative Tribunals.

Judiciary can promote social justice through its judgments. Another important role of judiciary is

to make precedent for the public interest or welfare of the society. Law is powerless and requires
a strong agency to maintain its existence. The level of implementation and the capability of the
executor determine the fate of law. During the recent past, the term ‘judicial activism’ has
assumed immense significance. It may be define as dynamic process of judicial outlook in a
changing society.

Legislative blunders:

The Supreme Court has expressed strong disapproval of courts casting a stigma on the victim’s
character, but stigmatization continues, leading to acquittals. Setting aside one acquittal by a
Ludhiana court that labeled the victim with ‘loose character’ while interpreting her consent to
sex, the Supreme Court in a 1996 judgment said, “The trial court interpreted that the victim was
habituated to sexual intercourse just because the speculum the doctor used entered her vagina
easily and hence she was of loose character. These observations lack sobriety expected of a
judge. No stigma should be cast against a victim of sex crime who is on trial”.

9|Page
Another problem with rape trials is the interpretation of victim’s consent by courts. The current
law and the amended version consider non-consensual penetration for sexual purpose as sexual
assault. But determination of consent is hampering justice. “Courts often judge women’s conduct
while interpreting consent. In one case, the court let off the accused on grounds that the raped
minor’s public hair had been shaved off and so the victim, being ‘such a loose girl’, would have
consented to intercourse”.The core of the offence of sexual assault remains sexual intercourse
without consent. The term consent has itself been subjected to numerous interpretations. Most
infamously in the case of Tuka Ram v. State of Maharasthra the Supreme Court observed that,
‘no marks of injury were found on the person of the girl after the incident and their absence goes
a long way to indicate that the alleged intercourse was a peaceful affair, and that the story of a
stiff resistance having been put up by the girl is all false.’ Though Tuka Ram has not been
expressly overruled, the Court in other cases has not equated the presence of injury marks to the
proof of consent.

In Mohd.Habib v. State , the Delhi High Court allowed a rapist to go scot-free merely because
there were no marks of injury on his penis- which the High Court presumed was a indication of
no resistance. The most important facts such as the age of the victim (being seven years) and that
she had suffered a ruptured hymen and the bite marks on her body were not considered by the
High Court. Even the eye- witnesses who witnessed this ghastly act, could not sway the High
Court’s judgment.

Apart from a non existent monitoring system for rape cases in the judiciary, which has caused
acquittals of the rapists and molesters in over 80 per cent of cases, governments of different
states have damaged the cause of justice for women by awarding cash compensations. As usual,
the intend behind these schemes was good, to help the victim get legal aid and rehabilitate, but
the manner of implementation distorted the intent. Not only khaps, even courts ordered for
compensation to be paid under provisions contained in the statutes. Courts also ordered the
rapists to marry the victim. Several state governments found it convenient to pay sums
depending upon the extent of public outrage and media exposure. Even the Ministry of Women
and Child Welfare launched a country-wide scheme and offered to reimburse the state
governments the cost they may incur in implementation of the scheme for paying compensation
to the rape victim.

10 | P a g e
 Landmark Judgments:

Judges are applying the discretionary power to provide better justice to women in the new
context of the Socio-Economic conditions. Judiciary has played an active role in enforcing and
strengthening goals towards protection of rights of the women of the land. The courts in India
have tried to interpret laws in consonance with the international treaties and conventions. Some
of the major cases are enumerated below :

From 1860 to 2002, the colonial law based on the moral history of a woman remained in
application while looking at a rape victim, which meant that a woman’s sexual history would
have a say on the writing of the verdict. Despite deletion of this clause, unfortunately, not much
has changed in the courtrooms. Even after the much talked about Mathura case, which led to the
amendment of Evidence Act in 1983, (114-A), which allowed the woman’s word to be trusted
for her non-consent; there has been no monitoring of judgments, if the reformed law is followed
to the word. Mathure was a sixteen year old tribal girl, who was allegedly raped by two
policemen on the compound of Desai Ganj Police Station in Chandrapur, Maharashtra, while her
relatives sat outside to file a police report against a theft. Both the High Court and later Supreme
Court acquitted the policemen on the ground that Mathura was habitual of sexual activities and
did not raise alarm.

It was only in post 1983, SC rulings clarified, “Even if a rape victim has been promiscuous in the
past, she has the right to refuse to submit herself for a sexual intercourse to anyone and everyone
because she is not an object”. The first amendment to criminal law came in 1983, when the
Evidence Act was changed to state that if a rape victim says she did not consent to sexual
intercourse, the courts will presume so. ‘Custodial Rape’ was also introduced in the IPC and rape
victims were given the right to in camera trials.

In 1992, Vishakha Judgement, came about after the case received unprecedented media attention
and for the first time the Supreme Court defined ‘Sexual harassment at work place’. And the
Apex Court laid down landmark guidelines. In State of Punjab v. Gurmit Singh, the Supreme
Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to
sex, the Court should not describe her to be of loose character.

11 | P a g e
The Supreme Court has in the case of State of Maharashtra v. Madhukar N. Mardikar, held
that “the unchastity of a woman does not make her open to any and every person to violate her
person as and when he wishes. She is entitled to protect her person if there is an attempt to
violate her person against her wish. She is equally entitled to the protection of law. Therefore
merely because she is of easy virtue, her evidence cannot be thrown overboard.”

In B. Gautam v. Shubra Chakraborthy it was held that Rs. 1000 per month should be given to
rape victim as an interim compensation.

In Chairman, Railway Board v. Chandrima Das, in which a Bangladesh woman was raped by
the railway security men, the Supreme Court observed: “Where public functionaries are involved
and the matter relates to the violation of fundamental rights or the enforcement of public duties,
the remedy would be avoidable under public law. It was more so, when it was not a mere
violation of any ordinary right, but the violation of fundamental rights was involved- as the
petitioner was a victim of rape, which a violation of fundamental right of every person
guaranteed under Article.21 of the Constitution.” The Supreme Court also held that the relief can
be granted to the victim for two reasons- firstly, on the ground of domestic jurisprudence based
on the Constitutional provisions; and secondly, on the ground of Human Rights Jurisprudence
based on the Universal Declaration of Human Rights, 1948 which has international recognition
as the ‘Moral Code of Conduct’- adopted by the General Assembly of the United Nation.

Suo Motto v. State of Rajasthan popularly known as German Lady rape case. It is a landmark
judgment laying down principles and guidelines for the protection of dignity of the women.
Hon’ble Mr. Justice N.N. Mathur, who wrote the judgment, took Suo Motto cognizance of a rape
case of a foreign tourist in Rajasthan in May 2005 which had hit the headlines of State and
national newspapers. In this case, court laid down certain highly relevant guidelines for criminal
investigation and trial of offences against women in rape cases. The court opined:

“In order to combat the increasing crime against women and to ensure protection and
preservation of their human rights – the criminal justice system needs to be addressed from the
point of view of systemic victim support service. There is need to promote proactive role of
police as well as trial courts”.

12 | P a g e
 Birju Ram v. State of Rajasthan  relating to abduction and rape, the same court headed by
Hon’ble Justice Mathur, emphasized on prevention of crime more than prosecutory culture of the
administration. The court directed the State to evolve mechanism to check unwarranted activities
of people exploiting caste, creed and cultural sensitivities of the people and creating crisis
situations in the society where women and children suffer the most. The court further directed
the government to take stern action against persons inside and outside the administration who
attempt to patronize and protect the accused or in any manner interfere with the natural flow of
due course of justice.

 In State Of Punjab v. Gurmit Singh & Ors, “The expression that the inquiry into and trial of
rape “shall be conducted in camera” as occurring in sub- section (2) of Section 327 Cr. P.C. is
not only significant but very important. It casts a duty on the Court to conduct the trial of rape
cases etc. invariably “in camera”. The Courts are obliged to act in furtherance of the intention
expressed by the Legislature and not to ignore its mandate and must invariably take recourse to
the provisions of Section 327 (2) and (3) Cr. P.C. and hold the trial of rape cases in camera.”

 Additionally it would be essential to enforce the guidelines imposed in Sakshi v. Union Of

India (UOI) And Ors.“In holding trial of child sex abuse or rape:

(i) a screen or some such arrangements may be made where the victim or witnesses (who may be
equally vulnerable like the victim) do not see the body or face of the accused;

(ii) the questions put in cross-examination on behalf of the accused, in so far as they relate
directly to the incident should be given in writing to the Presiding Officer of the Court who may
put them to the victim or witnesses in a language which is clear and is not embarrassing;

(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed
sufficient breaks as and when required.”

The apex court has directed trial courts to effectively control the recording of evidence in rape
trials and not let defence counsels intimidate the victim with offensive questions. “A murderer
destroys the physical body of a victim but a rapist degrades her very soul,” former CJI A.S.
Anand said in one judgment.

13 | P a g e
  Guidelines overlooked:

It is clear from the above guidelines that the judiciary has from time to time laid down the
landmark guidelines which has not been followed properly in most of the cases. Some of the
such landmark judgments are:

The apex court made recommendations in Delhi Domestic Working Women’s Form v. UOI
and Ors. and outlined the broad parameters to assist the victim. If these guidelines were
followed, conviction rates would have gone up. The guidelines are:

 The complainant of sexual assault cases should be provided with legal representation.

 Legal assistance will have to be provided at the police station.

 The police should be under a duty to inform the victim of her right.

 A list of advocates willing to act in such cases should be kept at the police station for
victims who do not have a particular lawyer in mind or whose own lawyer was
unavailable.

 The advocate shall be appointed by the court upon application by police at the earliest
convenient moment.

 In all trials anonymity of the victims must be maintained, as a necessity.

 To set up Criminal Injuries compensation Board.

 Compensation for victims shall be awarded by the court on conviction of the offender and
by the Criminal Injuries Compensation Board whether or not a conviction has taken
place.

The Supreme Court reaaserted these parameters in Bodhisattwa Gautam v. Miss Subra
Chakraborty, case but the enforcing agencies turned a deaf ear to the guidelines of the apex
court. Again the guidelines laid down in Vishakha’s case in 1997 has not been followed fully till
this date.

14 | P a g e
15 | P a g e
 CONCLUSION
On the raging clamour for new laws and death penalty for rapists, Justice Anand (retd) says,
“Socially sensitized judges are better statutory armours than long clauses of penal provisions
containing complex exceptions. While the larger debate on capital punishment would continue,
the courts can impose imprisonment for life as the sentence for heinous crimes like gang rape
and clarify the expression shall mean imprisonment for the rest of the life”.
 In his landmark January 11, 1994, judgment upholding death penal for security guard Dhananja
y Chatterjee, who raped and murdered a school girl in a Kolkata apartment in 1990, Justice
Anand had ruled, “Punishment must depend upon the atrocity of the crime committed, the
conduct of the criminal and the defenseless state of the victim”.The history of rape law shows
changes have followed public outcries.
 Police and judicial accountability are emerging as the dominant demands of the civil and legal
communities petitioning the Justice J.S.Verma committee appointed by the government to
review anti-rape laws after the Delhi gang-rape case of December, 2012. For the first time,
demands are being raised for community monitoring of police probes into such offences.
How successive governments have overlooked even the existence of crimes against women is
made evident by the fact that National Crime Record Bureau (NCRB)- the statistical wing of
Indian Police, had started collecting data on rape cases only since 1971, while other cognizable
crimes have been chronicled since 1953. In the very first year, in 1971, there were 2043 reported
cases of rape, the NCRB report said. These numbers jumped to 24,206 cases in 2011, an
incredible increase of 873% from 1971. The NCRB has also concluded that only one in 69 rape
cases get reported and only 20 percent of the reported cases result in some kind of conviction.
While the rise of 873% was taking place in the rate of the crime, and conviction rates remained
abysmally low, only two major legal reforms took place for a large number of women who were
seeking justice against rising number of cases that involved violation of their dignity.
Unfortunately, for both these changes to take place, two women had to undergo the same fate as
the 23-year-old had to, for her brutal rape on the night of 16 December, 2012, in the national
capital, which has once again triggered a nation wide demand for faster legal processes and
stringent laws to deal with sexual crimes against women.

16 | P a g e
No wonder, the landmark double life imprisonment awarded to Nishan Singh by District and
Sessions Judge Archana Puri specially mentions the role of society. Perusal of the 119-page
judgment in the September 24 case and the 58-page judgment in the June 25 incident makes it
clear that it was a judgment for the people, of the people and by the people.
“The court must hear the loud cry for justice by society in cases of heinous crime of rape and
respond by imposition of proper sentence. Public abhorrence of the crime needs reflection
through imposition of appropriate sentence by the court,” the judge said.
She further ruled that in this case, family affluence and youthful excitement were the factors that
led to the crime which traumatized the young girl, who shall be haunted by the memory. Coming
down heavily on the increasing cases of rape and crime in the country, the judge noted: “Of late,
crime against women in general and rape in particular is on the increase. A rapist not only
violates the victim’s privacy and personal integrity, but also inevitably causes serious
traumatizing nailing of the victim for no fault of her. Rape is not merely a physical assault, but it
is often destructive of the whole personality of the victim. A murder destroys the body, but a
rapist degrades the very soul of the helpless female.”
Thus, it is observed that Judiciary being the third pillar of the Constitution has played a vital role
in finding the proper solution in rape cases. Sometimes through wide interpretation of provisions
of various legislation and Constitution and sometimes by laying down landmark judgments
where there are no specific laws, the judiciary has tried to strike a balance and equilibrium in the
society. The judiciary has tried to fulfill the gap between fast changing society and rigid laws
(because of the long and time taking procedure of enactments of laws by legislature, its not easy
to amend these laws with the fast changing society). Nirbhaya’s case has once again raised the
question of inadequacy and lack of proper implementation of the laws, however, Anti-rape Bill-
Criminal Law (Amendment) Bill, 2013 has been passed. The laws relating to rape victim’s has
been enacted after much public cry or through judicial intervention only. This Amendment Bill
also came after loosing Nirbhaya and mass protests. It has rightly been observed by the judge in
Nishan Singh’s case that Court can only lay down the guidelines but important role has to be
played by the society in its implementation.

17 | P a g e
 BIBILIOGRAPHY

Books
o International Law, Antonio Casseese, Second Edition, Oxford University Press
o International Law, Malcom N. Shaw QC, Sixth Edition, Cambridge University Press
o International Law and Human Rights, Dr. H.O Agrawal, Twentieth Edition, Central Law
Publications.
o Public International Law, Ian Brownlie, CBE, QC, FBA, Seventh Edition, Oxford University
Press.

Articles
o The Effect of Jusc Cogens : Whoever Opened Pandora’s Box, Did You Ever Think About
The Consequences, Ulf Linderfalk.
o A Brief Note on The Legal Effects of Jus Cogens in International Law
o International Peremptory Norms (Jus Cogens) and International Humanitarian Law, Rafel
Nieto-Navia
o The Concept of Jus Cogens and the Obligation under the U.N Charter, Kamrul Hossain
o Human Rights enforcement via Peremptory norms- A challenge to State Sovereignty, Predac
Zenvoic
o It’s a bird, It’s a plane, It’s a Jus Cogens , Anthony D’Amato

Websites
o https://www.academia.edu/2283745/Peremptory_Norms_or_Jus_Cogens_in_International_L
aw
o http://definitions.uslegal.com/j/jus-cogens/
o http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1815155
o http://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-
9780199796953-0124.xml
o http://ejil.oxfordjournals.org/content/2/1/42.full.pdf

18 | P a g e