INTRODUCTION
Rape is one of the most heinous crimes that can be committed against an individual. In India, there have been various amendments and changes brought by the Parliament to modify the definition of rape, what constitutes rape, what is the procedure to be adopted in the rape trial, etc. One of the most important issues with which the Indian legal system is grappling is how the past sexual history of the rape victim is relevant in the rape trials.
HISTORICAL EVIDENTIARY PROVISIONS
The admissibility of the past sexual history of the rape survivor has historically been one of the most degrading and discriminatory evidentiary provisions in legal history. Before 2002, Section 155(4) of the Indian Evidence Act had within it the clause ‘when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character’. This section could be used to bring out the past sexual history of the rape victim during the trial to impeach the credibility of the woman by pointing out the observation, that the woman (rape victim) is of immoral character and could not be raped. In the past, the courts in India have admitted evidence of the past sexual history of the victim in rape trials. The rationale given behind accepting such evidence was to show that the woman (rape victim) was of loose character and was more likely to consent to sexual intercourse with anyone, including the offender. In 1993, there was consistent and persistent demand by the women’s group to repeal this section of the Indian Evidence Act, but it was not heeded by the Indian Parliament at that time. After around twenty years of incessant protest, this clause was omitted with effect from 31 December 2002 by bringing the amendment in the Indian Evidence Act, which was the Indian Evidence (Amendment) Act, 2002 (Act 4 of 2003). The amendment can be seen as an effect of social pressure to remove the clause which made the past sexual history of the rape victim relevant during the rape trial.
PRESENT SCENARIO
But the dilemma in today’s time is the fact that even after bringing the amendment in the Indian Evidence Act to make the past sexual history of the rape victim irrelevant to be considered during the trial, the past sexual history of the victim is continued to be made relevant during the trial, to impeach her credibility. But the difference is that these days no provision is invoked to bring out the past sexual history of the victim, in contrast, it is guided by jurisprudence and keeps the victim in a disadvantaged position during the rape trial. And the normal burden of proof begins to rest with the victim to prove the rape herself instead of the accused disproving the rape.
TWO-FINGER TEST
One of the many practices which involve the invocation of the past sexual history of the rape victim is the ‘two-finger test’ which is based on the assumption that a sexually active woman cannot be raped. However, the two-finger test has been rendered ‘unconstitutional’ by the Supreme Court of India in the case of Lilu@ Rajesh VS State of Haryana, and in 2014 Union health ministry had brought guidelines for medico-legal procedures on survivors of sexual violence, but the test continues to be used for determining the veracity and credibility of the victim’s position during the rape trial and to further determine whether the rape has been committed or not. The Supreme Court has time and again reminded the court and society in various judgments that the test has been rendered unconstitutional and has termed the test as ‘regressive and invasive’, but it is of little to no effect, as the test is finding no stop.
This test is in itself based on an ‘incorrect’ assumption because being raped and consensually having sex find no connection with each other. A woman can have regular sex with anyone consensually but this does not make her a ‘social object’ which can be used by anyone to have sexual intercourse and commit a bestial crime of rape. Therefore, the personal choices of a woman regarding her life should not be used as a weapon against the woman herself during the trial of such a heinous crime to put her in such a disadvantaged position which had the potential to add to her grievances; as at a time when rape is still understood as a crime, about which people choose not to speak about openly, if a woman comes to the court with a hope to get justice, these kinds of practices lowers her morale and deters her to continue her fight against the accused to get the justice. Therefore, it is in the hands of Parliament and judiciary that a just process is followed during the rape trial which does not work in prejudice of both the rape victim and the accused.
CONCLUSION
In conclusion, the past sexual history is not legally relevant in India by the judgment of the Honourable Supreme Court of India and the Indian legal system has recognized that invoking the past sexual history of the victim in rape trials is unfair and violates her right to privacy, but is still made relevant in many rape trials to impeach the rape victim’s credibility and to prove her loose character, which ultimately is linked to her ‘easy consent giving habit’, which makes the observation in the eyes of a court of law that at the time of the rape also, she might have given her consent to the accused, so technically looking, there was no offence committed by the accused, as it is generally proved by the accused that it was not rape, and was merely an act of consensual sexual intercourse. The role of the judiciary is very critical in shaping the law related to rape and ensuring that those laws do not infringe upon the rights of rape victims as well as the accused. It is also important that the law evolves in such a way that the rape victims are treated with dignity and the offenders are brought to justice.
Author(s) Name: Aditya Kumar Mishra (National Law University, Delhi)
