Criminal Law must just be based on a few principles which I have to
memorize and apply so in order to derive the answer. - My thoughts when I
first started studying the Indian Penal Code. However, I soon realized that
there is much more to criminal law than the bare application of the law. It is
one of the only branches of law which is deeply entwined and has a direct and
lasting impact on the ground reality.
One of the first concepts which had caught my attention during the course was
the perspective of Lazy Analysis. It was first deeply discussed in the case ofB. D. Khunte v Union of India, where the court had dismissed the accused’s
plea for Grave and Sudden Provocation for shooting his senior who had
sodomized him earlier in the day. The appeal was dismissed on the grounds that a
sufficient amount of time had passed for a reasonable man to cool down and the
although the provocation was grave, it was not sudden. In this case there was an
application of the reasonable man test, as per which a reasonable who is
provoked would be calmed down after a few hours after which the anger felt by
the accused would only constitute to ‘motive’.
The judgement constitutes of a lazy analysis of this case, for through the facts
of the case, the Accused had no intention to kill the decreased in the manner as
it had taken place. He had only done so, when he had seen the decreased
approaching him, seething in anger at the knowledge that no action would be
taken against the decreased for his misdemeanor.
Furthermore, in the reasonable
man test, the perspective of constructive provocation is not looked upon, in
addition to the psychological fact that it does take sometime for the situation
to sink into many reasonable men before they could act upon it.
We had discussed this perspective in class in the cases of homicide, but during
the progress of the course, I realized that this perspective could be extended
to sexual offenses as well. In this paper, I will try to elaborate on the
perspective of a ‘lazy analysis’ through which had failed to serve a just
reading of the law. I contend that the victim blaming attitude in the reading of
such cases is because of a fallacious reading of the law rather than the
societal prejudice of the jurists.
The first case which we think would be the famous
Tukaram v State of Maharashtra
(Mathura Rape Case), which had brought out a massive protest for legal reforms
in the rape laws in India. There were many protests regarding the court’s
reading of “Passive Submission” in this case and the ‘Victim blaming’ attitude
hinted in the judgement, especially by Prof. Upendra Baxi.
In this case, looking at the fallacious interpretation of the law rather than
looking at the highly hinted prejudice might be harder.
While overruling the High Court’s holding that there was passive submission,
their Lordships, fail to mention what is ‘Passive Submission’. For, in the given
facts of the case, there is without doubt submission by Mathura. Although the
court had cited the case ofHarnarain Rao v The State, they do not seem to apply
its holding which held that non-resistance and passive giving in does not amount
to consent and consent requires a voluntary participation on the women’s part.
The court in this case furthermore went on to say that although consent involves
submission, the converse does not follow. Their lordships believed that it was
preposterous to suggest that she did not resist due to her circumstances.
This is no doubt an indication of a fallacious application of the precedent.
Furthermore, the court seemingly ignores the principle of ‘proving beyond
reasonable doubt’ in this case, most of the facts, like the nightly discharges
of Ganpat; Tukaram’s intoxicated state and the reasoning for the semen traces
found in mathura’s clothes and why mathura was brought to the police station
after sunset were brushed away in consideration of the assumption.
The Mathura case also saw large protests for the inclusion of rape laws in the
LLB syllabus so as to facilitate the understanding of such sensitive issues.
However, even after three decades, this goal of a sensitive understanding seems
to have not been achieved.
For, such a lazy analysis of the cases seem to exist predominantly in the minds
of the present day law students as well.
During my Internship, I had engaged in a random conversation with my colleagues
on dress- code, some of them had argued that consent is presumed when one has a
(so called) provocative ‘western’ lifestyle. Their main arguments were that the
girls should be more alert and must take utmost care of herself and must not
engage in immodest activities (i.e. dress up in short clothes and have love
interests). Furthermore one of them had gone on to say that, she gets provoked
when such she hears such people bragging to be feminist (They seemed to have a
fallacious understanding of feminism and consent). However, when the
conversation moved to the Mathura case, everyone sided with Prof. Baxi’s
opinion. I am still unable understand the reason for this sudden shift in
ideology. I think it is because of the stereotypical victim that we hope to see
in the cases of sexual offenses - A helpless women fighting for justice, the
image of Mathura portrayed by Prof. Baxi in his open letter.
The ‘lazy analysis’ perspective could also be applied in the High court bail of
Hardik v State of Haryana. Although it is the mere opinion of the judges and it
does not have any legal value, the opinion of the judges validates my contention
of lazy analysis.
In their opinion, the judges talk of youthful misadventures and the immature but
nefarious world of youngsters. The acceptance of the complainant, to comply with
the wishes of the accused and the implication of a casual sex relationship due
to the same.
In this Opinion, the concept of passive submission has not been applied.
Although there might not be power dynamics like those in the Mathura case and
the Rao Harnarain Singh case, there is no doubt the accused had levied power on
the victim coercing her to submit. Another important factor which was ignored in
the opinion was the constructive victimization by the accused and the
continuous passive submission by the complainant.
Furthermore, the fact the victim was manipulated into sending her pictures which
were later used to blackmail her into submission is merely taken for granted due
to their voyeuristic adventures. Despite everything, the opinion strongly
reflects the disapproval of the complainant’s lifestyle and goes as far as to
categorize the entire ordeal as a tragic misadventure ignoring the fact that as
per the Section 146 of the Indian Evidence Act, they are not supposed to look or
judge the past (so called immoral) history of the victim.
At this point, I have come to believe that the facts of the case and the
opinions generated are a mere result of the narrative. However, an active
analysis of the cases and the accurate understanding of principles around them
might help in serving a fair judgement.
1. Tukaram and Anr v State of Maharastra. 1979 AIR 185. Supreme Court of India.
2. Baxi, Upendra, et al. "An Open Letter to the Chief Justice of India. "Supreme
Court Cases4 (1979): 17-22.
3. B.D. Khunte v Union of India. 2015 1 SCC 286. Supreme Court of India.2015.
4. Cr.M.No.23962 of 2017 in Criminal Appeal No. S-2396- SB of 2017