Indira Jaising on the 'debate' (misogynistic attack) on 2013 rape laws

It is only an understanding of the history of the rape law going back centuries (the rule of corroboration goes back that far) that will give you an understanding of how rape is proved and how absence of consent is proved. There is no question that the "burden of proof" has been shifted to the accused in any case of rape, not just custodial rape.

Even in the case of custodial rape (Mathura's case), changes in the law did not shift the burden of proof. There is a difference between the "burden of persuasion" which is always on the prosecution and the "onus of proof". It is only the onus which shifts after the prosecution discharges the burden of persuasion.

Hence, in the case of custodial rape, the law says, after sexual intercourse is proved and the woman states that she did not consent, then the onus shifts to the accused. This means that the woman subjects herself to cross-examination on the issue of absence of consent.

This is ultimately for the judge to decide whether the witness is credible and has proved absence of consent. It does not dispense with proof beyond reasonable doubt the burden being on the prosecution alone, as has been suggested. This statement of law holds true not only for rape but for all crimes.

Where is the violation of human rights of the accused here? Where is the erosion of presumption of innocence here?

Over the years, the law on sexual assault has moved from a focus on the act of assault, be it penetration or other forms of non-penetrative sexual assault, to additionally on what we call the "coercive environment".

Hence we look not only at the act of assault as an isolated act, but in the context in which it occurs. It is this critical shift which occurred in Indian law, when we recognised that the environment of a police station is different from any other, and the Supreme Court was wrong in holding that since there were no signs of injury, there was no absence of consent (the Mathura case).

It is the evidence of injury that was demanded as corroboration for absence of consent that was done away with. It is this that changed.

Hence, the Mathura dispensation did two things: it did away with the need to corroborate lack of consent by proof of injury, and focused on the environment in which rape took place. This change is also reflected in the judgments of the International Courts of Justice in Rwanda when rape in war settings was recognised as different from any other.

It is this which has led us to demand that rape during communal violence or in hospitals or in fiduciary relationships be looked at differently.

In the Mahmood Farooqui case also, the environment has been taken into consideration. Since guilt was proved by the prosecution beyond reasonable doubt, I wonder what the alleged erosion of human rights is?

Once guilt is proved, beyond reasonable doubt, the rest is a matter for sentence.

Minimum sentences for grave offences are well-known, and rape is one of the offences for which there is a minimum sentence with no discretion to reduce beyond the minimum. If there was, would just one day or till the rising of the court be sufficient punishment?

Any number of years would be considered arbitrary: one, two, three etc, where does the buck stop?

Once the concept of minimum is accepted, a figure will follow. It is the maximum that cannot be mandatory, and it has been so held by the courts, especially mandatory death penalty. This is because the sentence looks both at the crime and the criminal, and the actual punishment is decided.

It is true that there is no guideline as to how discretion is exercised between the minimum and the maximum, and the problem lies here.

As for a range of punishments, yes, in the case of rape, the range varies from seven years to life. The judge in the Farooqui case had the discretion to award more than the minimum of seven, and he exercised that discretion and awarded seven not eight, or nine, or ten.

As for incarceration as a form of punishment, yes, I would like to live in a world free from incarceration for everyone, including those unfortunate ones who killed Nirbhaya, more particularly for the economically deprived, the psychologically damaged, the neglected and ignored and the invisible ones who are put away by society into dirty, dingy prisons only to be further victimised.

The prison system in this county stinks and the sooner we do something about it, the better. One of them has just committed suicide and we will never know what went on in prison that made him do it.

There is too much to say, too little time to say it. So I must stop here. The real violation of human rights lies here.

(The post first appeared on the writer's Facebook page.)