By Shashank Mehrotra*
Part I- Introduction
This paper starts with setting out the specific framework of Realism as posited by Jerome Frank, and the settings in which rape trials take place in India. It then analyzes the steps of proving guilt in such trials from Frank’s lens of realism and identifies them as inherently patriarchal standards. The paper finally concludes with a possible way forward, stemming from realist understanding.
Jerome Frank asserted in Law and the Modern Mind that adjudication in courts is never one that is as ‘legal’ as lawyers would like the public to believe. Judges do not apply the law mechanically, but are in fact influenced by numerous factors, conventionally seen as external to the judicial system in arriving at the decision, including factors like their political beliefs, religious values, past experiences and outlook on society. Essentially, this stems from judges’ own ‘human nature’, wherein they are seen as who have grown and learnt things in their own constant interactions with society including its many inherent inequalities that are simply accepted as just and fair. This experience may not be commonly shared, as such are also largely individuated, stemming from the parental care one received along with the interactions they have had with the society. While Frank admitted that these may not directly manifest into judgements, he stated these largely affect their arrival of ‘the judicial hunch’. The judicial hunch is the preliminary impression that a judge develops about the result of adjudication, much prior to the time when the stage of appreciation of the arguments has concluded, based on the preliminary impression of the facts in front of them. This hunch then affects the appreciation of all the facts that are presented later. If then we can observe such factors clearly external to the concept of law, how then do we look at the concept of law? This problematization is a theme that this article primarily runs upon, while specifically analyzing the adjudication in rape trials in India.
Once the hunch has been developed, it affects all the later reporting of facts to their own minds, and to the public at large, as it looks at the facts from a certain lens that is distinct from the otherwise neutral lens that the legal system often rests upon. This preliminary hunch, in cases of rape trials, becomes even more pronounced. The stereotypes of the ‘lying woman’ are rampant in the society, wherein any resistance against the patriarchal norms by women is traditionally seen to be devious in nature. Before recognition of rape laws, women practicing such resistance were deemed ‘insane’, and psychopathology was used to forcefully subject them to imprisonment in the form of medical institutions. The same punitive outlook towards women who resisted, informed by social conditioning of the judges, transitioned through time and space where the institutions presume women to be lying, and are therefore subjected to a level of scrutiny wherein their experiences are questioned and delegitimized altogether. This practice, is again one that problematizes the idea of law, for what then becomes of law if it is so clearly different in operation when confronting individuals in certain situations? Such difference primarily manifests not through laws (which in fact try to combat this difference) but through the way the judges adjudicate in a dispute, which again, is determined by their own, initial hunch.
In rape trials, there are two essential conditions that must be fulfilled by the prosecution to successfully prove the accused as guilty. These are:
- There was sexual intercourse between the accused and the survivor
- Such intercourse was non-consensual
In trials, both these tests are looked at, defended against and proved in varied ways, depending a lot on what the judge allows to happen in the courtroom.
In Yad Ram v. State of Rajasthan, during cross-examination the defence counsel made the survivor re-enact the exact posture in which the accused had forced her into, in order to point out inconsistencies in her testimony. The judge in this while, remained a mute spectator, allowing it to happen. The Rajasthan HC derided the judge, stating that cross-examination could in no way, amount to a means of harassment of the accused. In this light however, Sec. 152, Indian Evidence Act, states that questions that are intended to annoy or insult must be disallowed, even if it is ‘proper’. Two alternative explanations arise in explaining why the judge never interfered u/s 152. First, a more innocent explanation could perhaps be that the judge simply overlooked the section, however, it is unlikely given the experience and training that the judges are subjected to. The second explanation then could be that the judge wasn’t convinced that the section applied. This could largely be explained by the lack of sensitivity and empathy in the court itself, in assessing the situation. Feelings of annoyance are subjective, even when they may seem obvious in nature, as they are largely a function of social conditioning. Applying Frank’s analysis, such feelings of empathy or lack thereof are directly seen to stem from the initial pre-conceived hunch.
A lack of application of s.152 therefore, speaks directly to the conditioning of the judges, which ends up determining what the survivor faces during the trial. In rape trials, such subjectivity is one conditioned by the patriarchal society, wherein there is a strong bias against the survivor, who is, because of the forced to relive her abuse for the second time. All of this stems primarily from the hunch that such judges have against women at large. However, in the appeal stage at the HC, a different judge may have not allowed that to happen especially in the manner that it did, as that directly appalled his sense of justice and interpretation of the section. Judges’ own notions therefore directly impact the experience, and in turn the accessibility that women have to the judicial system. For the former judge in the trial court, this furtherance of patriarchy, because of his own conditioning, would be seen as justice, while for the judge who has not been victimised by the conditioning to that extent, this would be inherently unjust. This is a stark manifestation of the theory of judicial personality as laid down by Frank, where their own lived experiences impact the parties’ experience at the Court.
The judges’ own perceptions and biases are seen to be a lot more prominent when determining the lack of consent in rape trials. Here, though character evidence per se has been explicitly barred by the enactment of law stereotypes of ‘women habituated to sex’ influence judgements across the country, especially at the lower levels of the judiciary. This notion is a part of the broader set of ‘rape myths’ that are rooted in patriarchy that aim to dismiss any testimony of the survivors. Attention in this context must be given to the Mohammad Farooqui judgement as well, where the Court propounded that ‘yes means yes, and no means no is not a universal doctrine.’, It stated that ‘feeble no-s’ can be said to give consent, if the person is educated and from a reputed background.
It must be noted that these standards crept into adjudication, in spite of progressive changes in law, and not because of them. There is therefore a high degree of artificiality in application of these standards, that seems to stem from the judges’ notions and beliefs. It problematizes the way one could conceptualize law itself, because when justice is seen to be delivered not on the basis of laws but beliefs that judges hold by, there remains no certainty remaining in the law.
Such notions have been plaguing the Courts in India for a long time, and it has an infamous history of judging not as per the law, but as per what Frank would recognize as their hunches. Hunches that travel through the personality to the interpretation of the law, and the subsequent decision rendered on it. This is seen exemplified through the Mathura judgement, where the character, and identity of a woman was seen to be relied upon in coming to the final decision. Through time and space, social notions subjugating women have changed as well, where women seen to be taking steps away from patriarchy(“Modern women”) are stigmatized for being of ‘loose values’. These notions also make their way to the Courts as is seen in the Tarun Tejpal judgement where a woman’s daily activities were put under the strict scrutiny of patriarchy by the Court, and finally relied upon to dismiss her lived experience.
It must be noted that these standards crept into adjudication, in spite of progressive changes in law, and not because of them. There is therefore a high degree of artificiality in application of these standards, that seems to stem from the judges’ notions and beliefs. It problematizes the way one could conceptualize law itself, because when justice is seen to be delivered not on the basis of laws but beliefs that judges hold by, there remains no certainty remaining in the law.
Such notions have been plaguing the Courts in India for a long time, and it has an infamous history of judging not as per the law, but as per what Frank would recognize as their hunches. Hunches that travel through the personality to the interpretation of the law, and the subsequent decision rendered on it. This is seen exemplified through the Mathura judgement, where the character, and identity of a woman was seen to be relied upon in coming to the final decision. Through time and space, social notions subjugating women have changed as well, where women seen to be taking steps away from patriarchy(“Modern women”) are stigmatized for being of ‘loose values’. These notions also make their way to the Courts as is seen in the Tarun Tejpal judgement where a woman’s daily activities were put under the strict scrutiny of patriarchy by the Court, and finally relied upon to dismiss her lived experience.
Part III- Conclusion
Such problems that arise in rape trials are not of law but psycho-social in nature, reflecting the true nature of judges as subjects conditioned by the society. Such identification is the first step to the solution, which in turn, lies in making adjudicators themselves aware of these biases, and consciously phase them away from it. This was done recently in Madras HC, during the hearing of a habeas corpus petition filed by parents of an LGBTQIA+ couple living together. In the duration of the trial, the judge, recognizing his own biases, subjected himself to counselling to better battle them, thus equipping him to deliver justice impartially and in the way it is intended to be delivered. This instance however, was a rarity. Such a practice needs to be given more attention by the institutions in India, that would take a step further than the current sensitization sessions. This step may look like an institutional initiative across levels of judiciary ensuring that the individuals that come into the service are, at the very least, conscious of their own biases that may operate in the process of adjudication. Such an initiative, admittedly would not abate the problem by themselves but may but be a great step forward towards minimizing such instances.
* Shashank Mehrotra is a 3rd year Law Student at National Law University, Delhi.
Kautilya Society, RMLNLU 
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