When judges talk about rape lightly

A recent Delhi High Court judgement in a rape case created an outrage in the social media for conclusions which the judges did not draw. The outrage may be misguided but the judgement still deserves criticism for the choice of words.

The court did not rule that menopausal women cannot be raped; or forceful intercourse can never be rape; or that only forcible intercourse can be rape. It, however, clearly left scope for misinterpretation, confusion and criticism for insensitivity. The bench comprising Justice P Nandrajog and Justice Mukta Gupta made references to menopause, intoxication, forceful and forcible intercourse in the concluding paragraphs in a manner which could probably have been avoided.

"As regards the offence punishable under Section 376 IPC the deceased was aged around 65-70 years, thus beyond the age of menopause. We find force in the contention of the learned counsel for the appellant that even if the sexual intercourse was forceful it was not forcible," the court said.

The problem lies here. Some phrases should have been avoided if possible. And if not, the context should have been elaborated upon. The choice was entirely with the bench. The first. The bench could have merely talked about absence of marks of resistance other than injuries on account of the intercourse instead of referring to menopause and could have concluded saying there was no proof of absence of consent without talking about forceful or forcible nature of intercourse or the fact that the victim was drunk. The second. The bench could have thought it worthwhile to deal with the post-mortem report which pointed to consumption of alcohol, injuries on the private part and "forceful" intercourse as the cause of death.

With the court going for the second alternative, it should not have done without contextualising certain terms and analysing the evidentiary value for reasons more than one. One, because isolated reference to certain sensitive terms could offend feeling and was liable to misinterpretation; two, because a judgement has to speak for itself and even the author has no right to subsequently clarify as to what he/she actually meant; three, because it was reversing a conviction; four, because circumstantial evidence could not be considered from the perspective of the accused alone. The court referred to "menopause" probably to suggest that injuries on the private part was not on account of resistance. The reference to forceful was to show that it could be with consent as against forcible intercourse.

Even if the above explanation is taken to be what the court intended, the conclusion cannot inspire confidence, unless the perspective of the prosecution is also considered. The reference to "forceful" intercourse in the post-mortem report cannot be stretched to mean that the intercourse was not "forcible". Besides, consuming alcohol together does not mean consent for intercourse. Further, in a case of this nature where forceful intercourse was the cause of death, should not the court consider the likelihood of withdrawal of consent? Does giving consent renders a woman helpless victim to a beast-like behaviour? But frankly, it was not the acquittal but the hurtful words which led to the controversy. Here, the court should have realised that hurtful observations (both oral and written) have created more controversies than rulings and ironically, in most cases withdrawal have made no difference to the ruling.

Justice (Retd) Markandey Katju, while considering the right of a Muslim student to sport beard, observed that he would not allow Talibanisation of the country. Later, he apologised in open court. Justice P Sathasivam (who retired as Chief Justice of India), while commuting death sentence of Dara Singh, noted that he only wanted to teach Graham Staines a lesson for conversion. Again, he had to expunge the portion but that did not make any difference to the fact that death stood commuted. Clearly, the observation was unwarranted.

Not law but prudence should decide if such hurtful words be reproduced in verdicts. Yes, if a judgement must have it. No, if a judgement can do without.