“A cardinal principle of the criminal justice system is that, an accused person is presumed innocent until proven guilty, and the prosecution has the burden to prove the necessary facts beyond reasonable doubt to prove guilty. This principle is also considered a basic right of the accused person in our legal system. Even the Supreme Court of India had observed that the presumption of innocence is a human right. One thing that a responsible citizen should bear in mind that suspicion, however grave that might be, can never take place of proof.”
With the implied permisssion of my readers,I aska question that is presumably politically incorrect in nature:
Are all men accused of rape and other forms of sexual harrassment guilty, or do they deserve the opportunity to defend themselves against such accusation in a court of law?
The objective of putting forth this question, seemingly controversial as it might seem, is to drive home a larger point with regard to sexual offences.
The LAW, meant for the protection of victims, has been gravely misused in the last couple of years. The LAW, which was meant to provide JUSTICE, is now causingINJUSTICE insociety. I speak here, of the rape laws in our country. These laws, which have repreatedly been advocated to be made stricter, have been gravely misused by false accusers. Social stigma is associated with such accuastations.Often men lose their jobs, dignity and many are even forced to commit suicide.This may potentially create an environment where men live in perpetual fear of the law. The root of the issue lies in the fact that no attempt is made to conceal the identity of the accused.
For over 6 months, The Hindu analysed sexual assault cases that came before the district courts in Delhi in 2013 and it was found that nearly one-fifth of them were wound up because either complainant did not appear or turned hostile. From all the tried cases, nearly 40% were consensual sex, involving the girl’s parents charging the boy of rape and another 25% were cases where the boy had breached his promise to marry the girl. Most of the cases involved a consenting couple where, usually the girl’s parents, had filed a case of abduction and rape against the boy.
In nearly 67 cases, the girl in her initial FIR, or during her medical examination, or in her statement before the Magistrate accepted that she was in love with the boy and went with him of her own will, however in Court, she took a contradictory stance. Out of 460 fully tried cases, 109 cases involved abreach of promise to marry.. Out of theses 109 cases only 12 cases resulted in conviction. Alarmingly, of all the rape cases filed during this study, nearly 52.3% case were false.
As per a report published in the Mumbai Mirror, a person, who was a labourer, was accused of committing rape of a minor who was just 4 years old.I know many of you are shocked after hearing it and might think that what is happening to our society. But, you should be more traumatised when I tell you the real story. The man here was a daily wage earner. On one fine day he demanded the Rs. 400 he had lent to the purported victim’s father, but victim’s family refused to pay him back and he was framed by victim’s mother to avoid payment.
His bail was rejected twice and he was forced to spend 21 months in jail. The trial was finally concluded with the Court holding that he was framed falsely. The girl (purported victim) admitted during cross-examination that she was forced by her mother to say that she was raped by the accused. The accused was now free.But, this did not put an end to his agony. When this man went back to his home after 21 months he found that his wife and children were missing and was informed by the neighbours that they left home in shame. Being a daily wage earner, he had suffered a huge financial loss while he was in judicial custody for 21 months. He lost his dignity and his family.This was a result of the false assumptions made by the public, even before the case had been brought in a court of law. In one of its recent judgments, the Delhi HC observed that, “no sooner that the news of a person having been accused of rape spreads in the society, he is looked down upon by all and sundry”.
In another case, a woman lodged a false case against a businessman at the behest of another person who wanted to settle scores with him. This false case destroyed the reputation of this businessman, subsequently leading to a massive financial loss. The Court, while acquitting him, observed that this is perfect illustration of misuse of Rape Laws. Justice S P Garg, while acquitting him said that, “it is true that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication.”
One thing is clear that, when a person is accused of rape or sexual harassment, he is remembered in public for that association, no matter what the ultimate result is.From where these men will get their reputation back? The short answer will be; from nowhere. These persons suffer a permanent loss of reputation. These accused men are also terrorized by media and they also become victims of modern technology like Google, Facebook, and Twitter. Media coverage on serious crimes like rape impacts the accused’s reputation by creating a widespread perception of guilt; regardless of any objective evaluation of evidences. The intensity and sensation of such coverage might create exceptional pressure on judges which goes against fair trial principles. They are openly abused on these modern platforms and are held guilty by our society even before a single piece of evidence is tested in court.In another exceptional case, The Hindu reported in March, that thousands of men stormed the central jail of Dimapur, dragged the rape accused, and beat him to death. This man was dead before our courts, which are responsible for dispensing justice, could have covered a significant part of trial.
It is a settled principle that, the identity of rape victim must be protected in order to avoid the social stigma associated with rape. It is clear that there can be instances where a man can be falsely accused. These men also have a reputation to live for, a family to care for and a job to work for. There seems to be no logic behind revealing the identity of the accused man in rape cases. Few say that, if victim’s identity is released than social stigma will make her life miserable, but the very same stigma will act as deterrent against men who are accused of these offences. But, if this stigma could really decrease the crime rate than why do we have court proceedings? With more than 50% of false rape cases at present, the time has come to think how the social stigma and rape laws are misused by few women and other people who have their own vested interest in doing so. The time has come to make a progressive reform in rape laws and to start thinking about the interests of an innocent man.
Do we really need to make the public, the name of the accused, before the court trial has ended? The Indian Penal Code under Section 228A makes it punishable if the identity of the victim against whom offence under Section 376,Section 376A, Section 376B, Section 376C, Section 376D, or Section 376E is alleged or have been committed. If someone prints or publishes about the identity of such victim, then, that person has to face imprisonment for 2 years and fine. Due to existence of such provisions and ethics of journalism, the identity of victim is not made public.Why do the same standards not apply to the accused, who is presumed innocent until proven guilty by our courts?
If under the rule of law, every person should be treated equally, then, why can’t we do same in rape and sexual harassment related cases? Why the is the accused treated differently? Isn’t it that, rule of law suggests that, if identity of victim is protected, then, the identity of accused should also be protected till the trial ends?
The Constitution of India provides that everyone should be treated equally before the law, and any sort of discrimination should be refrained from throughout the judicial proceeding. This principle of equality is enshrined in Article 14 of India’s Constitution. Further, Article 15 states that state should not discriminate on the basis of sex among the citizens of IndiaThere is novel reason of protecting the identity of a rape victim, but there is no reasonable justification as to why the identity of an accused is so easily revealed when he is presumed innocent until proven guilty. And here, prime facie it seems that there is a violation of Article 14.
In India, minors (below the age of 18 years) are tried under the Juvenile Justice Act (JJ Act), 1986. Section 36 of the JJ Act protects the accused Juvenile from his identity being released into public. Even in the infamous Nirbhaya Rape Case, the court directed that the identity of the co-accused, who was a minor, shall not be revealed into public. But similar protection is not provided for accused who are above 18 years of age.
Even if a person is acquitted, the stink of, “NO SMOKE WITHOUT FIRE” attaches to them for years or even lifetime. These false cases might lead to an increase in “Legal Terrorism” because if filing of such cases is not discouraged, then, it is highly likely that these laws can be misused by false accusers to satisfy financial greed, to take revenge, to get promotion, or to force the accused to do an act which he might refuse to do under normal circumstances and for the purpose of fair trail and to protect the dignity and modesty of innocent accused I will strongly urge that their identity should also be protected till the trial is completed.
But what if a false case of rape or sexual harassment is filed against you? Will you wait for the government to make necessary amendment into our criminal law? Will you wait for neutral ethicsof journalism to take birth? Off-course not. A sensible man will try to protect himself with the help of available resources at his disposal. Under Section 182 of IPC, a person giving false information to public servant might be imprisoned up to 6 months, or punished to pay fine of 1 thousand, or both. But, the question is, whether 6 months of imprisonment and 1 thousand of fine can really act as deterrent in false rape cases? Section 195, Section 193 and Section 211 could also be used against the false accusers if he/she provides false evidences or causes to institute a criminal proceeding based on false charges.
But again, it should be kept in mind that these provision are not meant to protect your identity even if you are falsely accused. Once accused, damage is done to your reputation and that can never be recovered. Those who are misusing rape laws are killing the very foundation of Concept of India that is Family.Government and various other stakeholders should take initiative to solve this loophole in our criminal law.
I believe that the mind-set of society can be changed by asking unconventional question and therefore I am asking you that, whether there is any modesty of men? And if it does exist, then is it so cheap that it could be overlooked so easily? I think I have spoken enough and now it’s your turn to answer these questions.
By Suraj Singh and Sandeep Bhalothia