NEW DELHI: In a radical suggestion, India’s Chief Justice K G Balakrishnan on Sunday said that judges, lawyers and social activists should give “due regard” to the wishes of a rape victim if she chooses to marry the rapist or have the baby conceived from the crime.
“Judges, lawyers and social activists should also ensure that they do not take an overtly paternalistic approach when they have to make decisions for the welfare of rape victims,” he said at a seminar.
“Due regard must be given to their personal autonomy since in some cases the victim may choose to marry the perpetrator or choose to give birth to a child conceived through forced intercourse,” he said.
He was speaking at the seminar on “Access to Justice, Relief and
Rehabilitation of Rape Victims” organised by the ministry of women and child development.
Others who addressed it included Law Minister M. Veerappa Moily and Minister of State for Women and Child Development Krishna Tirath.
“We must also keep in mind that the interests of the victim are not
protected by punishing the offenders alone,” said Balakrishnan, referring to a law ministry move to enact a law to set up fast-track courts to try sex-related offences.
“Adequate attention should also be drawn to suggestions for compensatory remedies and the rehabilitation of rape victims through the provision of shelter, counselling services, medical and legal aid.”
He also referred to the “secondary victimisation”, which a rape victim often has to suffer during the trial of the accused due to inconvenient, probing and often indecent questions by the defence counsel.
“There is a very real phenomenon described as ‘secondary victimisation’ wherein the victim of a crime faces additional harassment and humiliation in the course of investigation and trial. Especially when the perpetrators are in a position of power over the victims, there is a strong distrust of the credibility of the investigation itself,” pointed out Balakrishnan.
“Some recent cases highlighted in the press have shown how the investigative machinery can often be manipulated to protect influential persons, howsoever reprehensible their crimes may be,” he said without naming the Ruchika Girhotra molestation and suicide case involving former Haryana police chief S P S Rathore.
“The investigators, prosecutors and defence counsels must exhibit an
appropriate degree of sensitivity to the victims,” he said.
“Especially during the trial proceedings, judges need to be proactive in
order to restrain the aggressive cross-examination of rape victims.”
The CJI also highlighted recent changes in law, which provides that the past sexual history of victims must be ignored.
“The Indian Evidence Act was amended some years ago and a provision was inserted to ensure that the past sexual history of a victim cannot be given weightage in a trial for the offence of rape,” pointed out the CJI.
“What is needed now is for judges and lawyers to internalise the principle that facts relating to the past sexual history of a victim should not even be brought up in the first place, since the purpose of a trial is to decide whether or not an offence took place as alleged,” said Balakrishnan.