The Supreme Court through some of its judgments has also

unfortunately indulged in prescriptive stereotyping. One example is the

much-cited case of Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat (1983) 3 SCC 217. The issue before the Court in Bharwada was
as to whether the sole testimony of the prosecutrix could be relied on in
convicting the accused person. In arriving at the conclusion that it could,
the Court provided a set of reasons as to why an Indian woman would
not lie about rape. The Court observed: “(1) A girl or a woman in the
tradition-bound non-permissive society of India would be extremely
reluctant even to admit that any incident which is likely to reflect on her
chastity had ever occurred; (2) She would be conscious of the danger of
being ostracized by the society or being looked down by the society
including by her own family members, relatives, friends, and neighbours.
(3) She would have to brave the whole world. (4) She would face the risk
of losing the love and respect of her own husband and near relatives, and
of her matrimonial home and happiness being shattered. (5) If she is
unmarried, she would apprehend that it would be difficult to secure an
alliance with a suitable match from a respectable or an acceptable family.
(6) It would almost inevitably and almost invariably result in mental
torture and suffering to herself. (7) The fear of being taunted by others
will always haunt her. (8) She would feel extremely embarrassed in
relating the incident to others being overpowered by a feeling of shame
on account of the upbringing in a tradition-bound society where by and
large sex is taboo. (9) The natural inclination would be to avoid giving
publicity to the incident lest the family name and family honour is
brought into controversy. (10) The parents of an unmarried girl as also
the husband and members of the husband’s family of a married woman,
would also more often than not, want to avoid publicity on account of the
fear of social stigma on the family name and family honour. (11) The fear
of the victim herself being considered to be promiscuous or in some way
responsible for the incident regardless of her innocence. (12) The
reluctance to face interrogation by the investigating agency, to face the
court, to face the cross-examination by counsel for the culprit, and the
risk of being disbelieved, acts as a deterrent.”{Bharwada Bhoginbhai
Hirjibhai v. State of Gujarat(1983) 3 SCC 217, 225-26}.

Thus, the Court prescribed reasons as to why an Indian woman would

not lie about rape – thus indulging in prescriptive stereotyping. The
factors that the Court laid down were based on notions of chastity,
virginity and honour, rather than on legal justifications and reasons as to
why the testimony of a rape victim should be believed. The Justice
Verma Committee in its Report took note of such stereotyping, and
advocated a move towards changing the approach in dealing with rape. It
recommended that the focus be on the violation of a woman’s
fundamental rights that sexual violence leads to, and not such
stereotypical factors.1

A case preceded by Bharwada was a judgment of the Supreme Court in

Rafiq v. State of Uttar Pradesh (1980) 4 SCC 262. In that case, the
Court held that “[w]hen a woman is ravished what is inflicted is not
merely physical injury, but the deep sense of some deathless shame”
{(1980) 4 SCC 262 at p. 265}. This again was an exercise in prescriptive
stereotyping, with the Court expecting a woman to feel shame on being
raped. Various studies have shown the adverse impact that such
stereotyping has on rape adjudication.2 One area where such impact can
1
The Justice Verma Committee Report on Amendments to the Criminal Law,
Chapter 2.
2
See: Adler, Sue Lees, MRINAL SATISH, DISCRETION, DISCRIMINATION AND
THE RULE OF LAW: REFORMING RAPE SENTENCING IN INDIA (Cambridge
University Press, Forthcoming 2016).
be seen is when a woman is testifying about the rape. Section 280 of the
Cr.P.C. states that a judge may record the demeanour of a witness when
he/she is testifying. The demeanour becomes a factor on which the Court
decides on whether to rely on the evidence of the witness as truthful or
otherwise. An example of this was seen in the decision of the Supreme
Court in Kamalanantha v. State of Tamil Nadu (2005) 5 SCC 194.
The case involved the rape of multiple young girls in an Ashram by a self-
declared godman. The young victims testified before the trial court about
the various incidents of rape that had been committed on them. While
testifying some felt giddy, some had to be offered water, and some cried
uncontrollably. Both the trial court and the Supreme Court appeared to
be moved by this and stated that they were convinced of the veracity and
the truthfulness of the victims’ testimony because of their reactions. The
courts did not provide legal reasoning for such reliance. Thus, when the
court encountered stereotypical reactions by the rape victims, it believed
them. This can have an adverse impact in cases where the rape victim
behaves differently from how society or the court expects her to behave.
What if a woman does not feel ashamed? What if she does not cry while
testifying or does not appear visibly traumatised? Experiences of rape
victims clearly show that each person reacts to the trauma differently.3
Hence, expecting the same or similar response from every rape victim
would be illogical, unfair and would lead to re-traumatization.

Another factor that impacts rape adjudication is medical evidence.

Outdated medical examination methods such as the two-finger test were
used (and continue to be used) to determine whether sexual intercourse

3
See: Sohaila Abdulali, I Was Wounded, My Honor Wasn’t, The New York Times,
January 7, 2013, available
at:http://www.nytimes.com/2013/01/08/opinion/after-being-raped-i-was-wounded
-my-honor-wasnt.html?_r=0 (Last visited on October 15, 2015).
has occurred. Literature has shown how these tests are unreliable.4 At
the same time, doctors also note the state of a woman’s hymen to note
whether she has engaged in sexual activity or not – another irrelevant
factor since sexual history cannot be adduced to adjudge consent. As
mentioned earlier, proof of resistance was sought in rape cases to show
lack of consent. This was based on a rape myth that women necessarily
resist the attack – a notion which was exemplified in the Pratap Misra
and Mathura cases. Textbooks of medical jurisprudence also stated
that it is not possibly for a man to single-handedly rape an adult
woman.5 In fact, the Orissa High Court in Sukru Gouda v. State of
Orissa 2004 Cri.L.J. 1566 (Ori), reiterated this stereotype, and
acquitted a man accused of rape, on the ground that there were no
injuries on the body of the woman. The Supreme Court overruled the
decision, and held that there was no legal principle (as the Orissa High
Court had stated) to the effect that a man cannot single-handedly rape an
adult woman.6 These, and similar rape myths in relation to injuries,
further reinforced by books of medical jurisprudence, led to Parliament
inserting an explanation to Section 375 stating that lack of physical
resistance does not amount to consent on part of the woman.7 On the
issue of the two-finger test, the Supreme Court in Lillu v. State of
Haryana (2013) 14 SCC 643, held that the “test” violates a woman’s
right to privacy and dignity, guaranteed by Article 21 of the Constitution.
It instructed courts not to use the results of such tests, although not
completely banning the test.

4
See: Durba Mitra & Mrinal Satish, Testing Chastity, Evidencing Rape, 49(41)
ECONOMIC AND POLITICAL WEEKLY 51 (2014).
5
See: Durba Mitra & Mrinal Satish, Testing Chastity, Evidencing Rape, 49(41)
ECONOMIC AND POLITICAL WEEKLY 51 (2014).
6
State of Orissa v. Sukru Gouda, (2009) 2 SCC 118.
7
Proviso to Explanation 2 to Section 375, IPC.
SENTENCING IN RAPE CASES

Sentencing in rape cases has always been an issue that has provoked
critique, especially in the context of egregious sentencing decisions of
courts. Prior to 2013, both Sections 376(1) and (2) provided minimum
punishments, but provided judges the discretion to reduce sentences
below the minimum specified. In various cases, courts reduced sentences
on irrelevant grounds (See for instance: Raju & Krishna v. State of
Karnataka, (1994) 1 SCC 453). The Supreme Court often reiterated
how courts should give importance to sentencing in rape cases, show
sensitivity towards the victim, and use the deterrent theory of
punishment especially in cases involving young girls (State of
Karnataka v. Krishnappa, (2000) 4 SCC 75). It ruled that irrelevant
mitigating factors, such as the socio-economic condition of the accused,
should not be considered relevant (State of Karnataka v.
Krishnappa, (2000) 4 SCC 75). Reacting to the perceived wrongful use
of discretion by sentencing courts, Parliament in 2013 took away the
sentencing discretion vested in judges in rape cases. As mentioned
earlier, the IPC still continues to stipulate a minimum punishment for
rape cases. However, judges can no longer reduce the sentence by
providing “adequate and special reasons.”

12. SUMMARY

Aggravated rape provisions were introduced in the Indian Penal Code in

1983, primarily as a response to the Supreme Court’s judgment in the
Mathura case. Subsequently, another set of amendments were
introduced in 2013 primarily on the recommendations of the Justice
Verma Committee on Amendments to the Criminal Law. The various
aggravated rape provisions recognise situations where the victims are in
a vulnerable situation, thus necessitating different evidentiary rules, as
well as higher punishment. At the same time, there are various rape
myths and stereotypes that impact rape adjudication. There is an urgent
need to rid rape adjudication of these myths, in order to ensure proper
application and implementation of the law. The same applies to
sentencing in rape cases as well.