Tuka Ram and Anr. v. State of Maharashtra
Updated: Nov 18
Shrashti Dubey & Rebekah Hanna Varghese, Students, School of Law, Christ (Deemed to be University), Bangalore.
The infamous Mathura Rape case is one that caused an outcry in the country with citizens realizing that not only does India have a long way to go in terms of gender justice, but even the judiciary failed to see women as anything beyond the inferior sex.
Mathura was a young tribal girl, for a living who worked as a domestic helper with a woman Nunshi and had an affair with Nunshi’s nephew Ashok, who wanted to marry her. Her brother who objected to this union filed a case alleging that the victim had been kidnapped and it was when Mathura arrived at the police station as a part of the enquiry of this case that she was allegedly raped by two police officers Ganpat and Tukaram. The sessions court, in this case, acquitted the accused on several grounds, including that Mathura was ‘habituated’ to sex and hence rape could not be proved. The Bombay high court reversed this judgement and stated that passive submission did not amount to consent. It was on further appeal that case went to the Supreme Court, wherein the accused were acquitted on the basis of the following reasons: She had made no attempt to call out for help despite the fact that her relatives were at the police station with her. There is no mark of any injury on her body which means she did not try to resist, and finally, as she was used to sexual intercourse she may have incited the drunk police officers into engaging in intercourse with her.
The Indian judiciary for decades has shown a patriarchal and misogynist attitude towards rape victims. Even today after so many amendments in the rape laws the judiciary still carries this misogynistic approach and often blames the rape survivor for the crime of rape. This regressive attitude of victim-blaming by judiciary was most prominent in the 1970s where the judiciary had blatantly adhered to accused friendly approach rather than a victim-friendly approach. The judiciary had adopted a stereotypical attitude towards women and had in its various judgments of rape cases described how ideal women of society should behave in order to save herself from the crime of rape, and if the conduct of women differed from the standard expected code of conduct the judiciary had presumed that victim had incited the accused to commit such a crime.
Analysis of the Judgment
The analysis of the Tukaram judgement given by the Sessions court reveals that the court had given undue importance to the sexual history of the victim. The court’s acknowledging of the possibility of the semen stain found on accused and on Mathura the victim to be from a person other than the victim and accused respectively can’t be said to be an argument with any legal merit. This argument had however been accepted by the Supreme Court. The Supreme Court while reasoning that the there was no semen either on pubic hairs or on the vaginal smears of the victim, failed to take into account that the medical examination of the victim was done after 20 hours of the said incident and there is every possibility of her taking bath during this period, which the court overlooked.
However, the High Court had shown progressive approach and had convicted the accused. In contrast, on the question of “passive submission,” the Supreme Court had negated the possibility of the victim submitting due to fear and had rather given a prescribed code of conduct that the victim was supposed to act within in the given situation. Rape is the most heinous and dramatic sexual crime, which affects a victim not only physically, but also has a grave psychological impact on a victim. In such cases, the behaviour of victim varies and it’s completely unjust on part of the court to expect a prescribed code of conduct from a victim, as people’s reaction to such situation will highly vary. The Supreme Court portrayed a troubling understanding of the term consent in its judgement when it stated that no marks or injury on the private parts of the victims to be evidence of the peaceful affair and hence equivalented it to consensual intercourse. Here the Supreme Court overlooked Section 375 (c) of Indian Penal Code which clearly states that consent given under fear of death or hurt can’t be understood as free consent and failed to look into the possibility that the victim was in the police station and therefore there is every possibility of her giving consent under fear.
The case of custodial rape is unlike other cases because in such cases the policeman who was supposed to be the protectors turns out to be perpetrators and therefore here the Supreme Court could have placed reliance on the natural impulse of the young girl to fear for her life or of getting hurt, however, the court conveniently ignores this possibility despite there being no proof to the contrary. The court had also falsified testimony of her calling out for help based on discrepancies in her testimony, by doing so the court had blatantly failed to consider that this discrepancy could be the result of the mental trauma that she had gone through due to this horrific incident. The court giving emphasis to the victim making no attempt to resist forces us to consider what the court considers adequate resistance in rape cases. The Supreme Court had given the undue emphasis on the fact that victim was habitually involved in sexual intercourse and therefore it would be completely normal for her to indulge in sexual intercourse with the policeman and therefore she must have incited the policeman to have sexual intercourse with her and had thus disregarded the possibility of rape by concluding it to be consensual sexual intercourse, this reflects the patriarchal mindset of the court towards the entire case.
The Supreme court here ignorantly didn’t emphasized on the fact that the victim was leaving with her relatives and was caught hold and stopped by the accused and asked to stay in while her relatives were asked to wait outside. There was no validated reason to ask the victim to stay inside alone at this late hour of the night, still the accused asked victim to stay and that too in absence of a female constable, this act of accused are clear indications of the criminal intention of the accused to rape the victim. This also proves that the victim had no desire to indulge in such activities and that the initiative was done by the policeman with the intention to rape her. The court here had adopted the misogynist and traditional approach of victim-blaming, by bringing into light the sexual history of the victim and thus trying to maliciously prove the victim to be of loose character and based on this baseless argument trying to prove that the victim was a girl of no moral character and therefore she must be the one who had incited the accused policeman to indulge in sexual acts with her. This argument by the court has no legal merit but is merely a futile attempt of a victim’s character assassination. The court also overlooked into the fact that victim’s subsequent conduct in making a statement about the rape immediately after the incident, not only to her relatives but also to the members of the crowd despite knowing the mindset of the society in cases of rape where mostly the victim is blamed, leave no manner of doubt that she was subjected to rape by the accused. Her act of making a statement in front of a large number of people even after knowing that she could be blamed and looked down upon by the society proves that she had in no way consented to the sexual intercourse and was subjected to the painful crime of rape.
The judiciary has also not failed in its blatant attempt of character assassination of the victim and had resorted to involving the sexual history and character of victim in almost every case. As per judiciary, an ideal victim was one who will fight till the end to protect her dignity. The judiciary also had restricted its idea that rape could be committed of a victim only if she was not habituated to sex, or didn’t have multiple partners or partners before marriage and was of clean character. Unfortunately, the judiciary was of the view that if a girl was not of moral character (as prescribed by the norms of patriarchal society) then it must be her who would have incited the accused to have sexual intercourse with her, and testimony of such a woman could not be relied upon. The judiciary in the entire case had shown a regressive approach towards the victim and adamantly shown misogynist approach. Alternatively, the court could have adopted a more progressive approach by not enduring to the age-old gender stereotypes and by adopting a more victim-friendly attitude towards the entire case. At the time of commitment of the said incident, the Indian rape laws weren’t progressive enough but the court could have set precedent by establishing rape shield principles and by serving the true purpose of the judicial system by delivering justice to the victim.
The following case can be analysed to assess the situation through a comparative lens:
State v. Clarke [343 N.W.2d 158 (1984)]
This case upheld the constitutionality of the rape shield laws in Iowa and denied the defendants request to ask a question regarding the complainant’s sexual history. A careful analysis of the case depicts the manner in which the court absolutely denied an approach of the defendant which had the possibility, though slim, of character assassination of the victim or which simply defeated the purpose of the existence of rape shield laws. However, Tukaram v. State of Maharashtra case showed no regard for such considerations and nonchalantly indulges in not only referring to the victim’s sexual conduct but also further substantiates this act by including it in the actual judgement.
In-State v. Clarke the court strictly adheres to the constitutional provisions in contrast to the approach in Tukaram v. State of Maharashtra where the court’s reasoning for not following the relevant provision is merely presumptive. In the former case, the court does not pay heed to the assumptions/theories provided by the defendants and purely bases its decision on the legal and factual merit of the argument of both sides. Here the first theory of the defendant that the sexual experience of the victim, (whether she has had oral sex previously) is of evidential value is negated on the basis that such evidence can only be admitted in case of psychological or psychiatric testimony which substantiates the requirement of such evidence. Contrarily in the Tukaram case, the appellant, as well as judiciary, has stated and referred to the sexual history of the victim without any valid reasoning that justifies such a process.
In this case, the court repeatedly and successfully determines which theory of the defendant is an ‘unsubstantiated assumption’ whereas in the latter case there is the ready acceptance of unproven theories, this puts into question whether the judgement is in fact unbiased. This is the kind of progressive judicial decision making that the Patriarchal society of India requires. Despite both cases belonging to around the same decade, there has been a stark difference in the approach as well as interpretation of the respective laws of the two countries by the judiciary.
The entire judgement in Tukaram v. State of Maharashtra is an accurate expression of the patriarchal mindset of the Indian society as well as the judiciary, it reinstates the misogynistic notion of the inferiority of women simply due to the fact that society sexualises them at every instance. The court's biased attitude and indifference to the potential trauma the victim may have gone through is generated most likely due to her previous sexual conduct, it almost appears that if the victim was a virgin the court may have taken a more sympathetic stance. It repeatedly resorts to accepting and providing sexist reasonings with no legal merit, for the occurrence of the crime. In the aftermath of the judgement, an open letter was sent by certain law professors to the Supreme Court disagreeing with the concept of consent in the judgement, as “consent involves submission but the converse is not necessarily true”. The interpretation of consent, in this case, is narrow and the case also perpetuates prejudice against premarital sex. Further, there was an outcry by the public which led to some amendments in the criminal law.
The Criminal Law Amendment Act 1983, introduced the provision of section 114A of the Evidence Act which states that if the victim says that she didn’t consent to the sexual intercourse the court is to presume the same until rebutted. The decision creates a possible threat to women who don’t conform to their regressive interpretation of consent. The comparison of the two cases reveals the gender inequality prevalent in Indian society. The court had an opportunity to set a progressive precedent and provide strong legal backing to victims of crimes but instead resorted to setting boundaries and defining the model code of conduct of a woman.