In a recent criminal petition (no.2427 of 2020 between petitioner Sri Rakesh B and the state of Karnataka) in the High Court of Karnataka, Justice Krishna Shripad Dixit made some shocking remarks to dial back the course of progressive women’s movements and the legal amendments they have secured.

Advance bail was granted to the petitioner without any interrogation by police, on grounds of the complainant’s failure to explain her reasons for making a delayed complaint, going to her office late at night, and not objecting to the consumption of alcoholic drinks.

The petition filed under Section 438 of the Criminal Procedure Code, 1973 sought anticipatory bail for alleged offences punishable under Sections 376 (rape), 420 (cheating), 506 (criminal intimidation) of the Indian Penal Code and Section 66B of the Information Technology Act.

The court granted the petitioner anticipatory bail on the grounds that “seriousness alone is not the criteria to deny liberty to the citizen when there is no prima facie case from the side of the State Police. The version of the complainant that she was subjected to rape on the false promise of marriage in the given circumstances of the case is bit difficult to believe at this stage.”

The court also chastised the complainant for not approaching the court “at the earliest point of time” if sexual acts were being forced upon her.

It not only put the blame on the complainant but also the burden of proof, in passing moralistic judgments like “she went to her office at night, that is, 11 pm” or “she did not object to consuming drinks with the petitioner” or “allowed him to stay with her till morning” – and that “after the perpetration of the act she was tired and fell asleep (which) is unbecoming of an Indian woman; that is not the way our women react when they are ravished”.

Interestingly the court also noted the outbreak of Covid-19 which poses a threat of infection among prisoners. For anyone following the arbitrary arrests of young women activists in the national capital in connection with the February communal attacks in Delhi, it is clear that the threat of infection has not prevented their arrests; there has been no questioning of the prima facie evidence supplied by the police; even as one of the arrested activists has alleged violence in Tihar jail.

The Bengaluru case takes us back to the infamous Bhateri or Bhori/ Bhanwari Devi gangrape case that led to the institution of the Vishaka Guidelines to prevent workplace sexual harassment.

In 1992 a gang of highered-caste men gangraped Bhori Devi in “retaliation” for her activism and campaign against child marriage, which she was carrying out at the grassroots as an agent of the Rajasthan government’s welfare programmes.

When she filed a legal complaint against the accused, her fellow villagers boycotted her socially and economically. She lost the case in the trial court which acquitted the five accused saying that upper-caste men would not have touched a lower-caste woman.

Bhori Devi was called a liar and characterless by the court, as the sample of semen did not match either her husband or the accused. The court gave weight to this prima facie medical evidence rather than her own testimony.

To date she herself has had only one hearing in the High Court, which reflects the number of appeals pending in our judiciary, and shows how even cases of significant history within the legal paradigm and the course of the women’s movement have been left far behind and the survivors denied access to justice.

The Karnataka High Court order also takes us back to the Mathura rape case (1972) where a teenage Adivasi girl who said she had been raped inside a police station was also alleged to be of a “loose character” and a liar, like Bhanwari Devi, by none less than the Supreme Court.

The Mathura case remains significant in the history of women’s movement as it built public discussions around “consent” for the first time in India.

We have seen many other cases since of the public and the courts putting the burden of proof on the women survivors of assault, and also questioning their character and fundamental right of access to public spaces.

In 2013 after unprecedented outrage over the gangrape and murder in Delhi of Jyoti Singh Pandey ‘Nirbhaya’, the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act was passed.

Advocate Anant Randive, during a seminar at the University of Pune on the sexual harassment of women, observed that the courts have passed only 23 judgments under the Act, of which two were from the Supreme Court.

Meanwhile the number of sexual harassment cases in the workplace jumped 54% from 371 in 2014 to 570 in 2017, as per data published by the Union Ministry of Women and Child Development.

The 2013 Act followed the framework of the Vishaka Guidelines in limiting the duration of filing the complaint to three months after the assault. The period of inquiry is sixty days. Employers are supposed to constitute an Internal Complaints Committee presided over by a senior woman employee, with one member from an NGO working on issues relating to sexual harassment, and half the total members being women.

Instituting an internal complaints committee is mandatory for organisations with 10 or more employees.

Yet according to surveys 70% of working women in India do not report workplace sexual harassment. 97% of firms were not aware of the law, and of 520 cases of sexual harassment reported in 2014, only 57 pertained to harassment on office premises.

In contemporary times there is a discernible larger pattern of the normalisation of violence in society. The Karnataka High Court order reminds us of the declining importance of forensic/medical evidence in favour of courts getting influenced by the social and political hierarchies they are embedded in.

Women’s organisations have been significant in bringing political and juridical attention to these cases, in building the relevance of these issues through movements. But there is a need to look back, reflect, analyse and learn.

We have half-won battles while uprising for newer battles, and the delayed course of justice in many cases of violence targeting women is indicative of the battles we have not won.

We may have been able to shape the law but some of these recent judgments show that implementation of these legal remedies and policies has not been up to the mark.

It is not satisfying for us to rest or remain silent. We need to make the connections between recent patterns of violence, and intervene with an intersectional collective civic rights approach.

Twinkle Siwach is a doctoral scholar at the Jawaharlal Nehru University, Delhi. Her areas of interest are media, gender, crime and violence in contemporary society

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