Why CJI BR Gavai described the 1978 Supreme Court ruling on custodial rape in Maharashtra as a ‘moment of institutional embarrassment’

CJI Gavai made the remarks on Wednesday during his 30th Justice Sunanda Bhandari Memorial Lecture held in New Delhi on the theme ‘Justice for All: Building a Gender Equal and Inclusive India’.

The case

According to the prosecution, the victim, a tribal girl aged between 14 and 16, was raped by two policemen inside the police station headquarters in Vidarbha district in March 1972. The girl, who lost her parents in childhood, lived with her brother; They both worked as laborers. She worked from time to time as a domestic helper, where she met the nephew of one of the women in that house, and in the end the two decided to marry, which her brother disagreed with and filed a report stating that the girl had been kidnapped by her lover and members of his family.

According to the prosecution, on March 26, 1972, the head of the police station concerned brought the girl, her lover and his family members to the police station at around 9 pm and recorded their statements. By 10:30 p.m., the police chief asked everyone to leave and asked the victim’s brother to bring a document related to her date of birth. After the police chief left, the accused officials asked the girl to stay and asked her companions to leave. Then one of the policemen raped her in the police station headquarters, while the other sexually assaulted her while he was drunk. When her companions waiting outside became suspicious and attracted crowds, a rape complaint was filed.

Acquittal court hearings

On June 1, 1974, the Criminal Court acquitted the accused, noting that “there was insufficient evidence to prove that the victim was less than 16 years old on the date of the accident.”

The judge noted that the victim was a “shocking liar” and found her testimony “full of lies and improbabilities”, concluding that the crime of rape had not been proven. The District and Sessions Judge further stated that “she was accustomed to sexual intercourse, but after finding that her companions and her lover would be angry with her, she had to appear virtuous.”

HC reflects innocence

The HC observed that it was very unlikely that the girl had made advances towards strangers and concluded that the initiative must have been from the accused.

The prosecution appealed to the Nagpur bench of the Bombay High Court, which overturned the acquittals on 12 October 1976. The Supreme Court ruled that the sexual intercourse was “forcible” and amounted to rape, and convicted one of the accused of rape and others of outraging a woman’s modesty.

“Since the accused were strangers to the girl, it was very unlikely that the girl would make any overtures or invite the accused to gratify her sexual desire. It is possible that the girl who was involved in a complaint made by her brother would make such overtures or advances. However, the initiative must have come from the accused and if such overture came from the accused, she would not have been able to resist the same,” the apex court observed.

Supreme Court overturns convictions

The Supreme Court bench comprising Justices A D Kaushal, Jaswant Singh and B S Kailasam on September 15, 1978, delivered a judgment and quashed the convictions of the Bombay HC (Nagpur Bench). The Supreme Court ruling, published in 1979, noted that there were no signs of injury after the incident to suggest that the alleged intercourse had been a “peaceful matter,” and that her “story of intense resistance” was “entirely false.”

The court also said that the crime of rape had not been proven, and that the girl’s claim of screaming loudly for help was a “tissue of lies” and the “screams and ultimatums” were “of course a fabrication on her part.”

She said that while she was leaving the police station with her brother, the policeman grabbed her and she did not make any attempt to resist at all. The High Court added: “Her natural impulse was to throw away the hand that had caught her and scream for help even before she noticed who was harassing her. Her failure to appeal to her companions who were none other than her brother, aunt and lover, and her conduct of meekly following the police-appellant and allowing him to have his way with her to the point of complete satisfaction of his lust, makes us feel that the consent in question was not a consent which could be dismissed as ‘passive submission’.”

The Supreme Court also observed that “the onus is always on the prosecution to allege and prove that all the elements of Section 375 (rape) of the Indian Penal Code were present.”

“A turning point in addressing deficiencies in criminal law”

The Supreme Court ruling, according to CJI Gavai, became a “turning point” and “the public outrage and nationwide protests that followed, led by human rights groups, students and legal activists, ignited the modern Indian women’s rights movement.”

This led to several legal reforms in criminal law including the Criminal Law Amendment Act 1983, which provided for Section 376(2)(a) under the IPC providing for the punishment of custodial rape by a police officer. Furthermore, Article 228A was added to the Islamic Penal Code prohibiting the disclosure of the identity of the victim of certain crimes among other reforms. The Evidence Act was also amended by adding a presumption of absence of consent in some rape prosecutions and the burden of proof was shifted to the accused.

“The ruling forced the nation to confront the shortcomings of its criminal law and catalyzed amendments in the Criminal Code, which redefined the concept of consent and strengthened legal protections against custodial rape,” CJI Gavai said.