Sunday, May 24, 2015

Guest Post: If it happened during your periods, was it rape?

I am proud to present a guest post by Ms Jinal Dadiya, a Fifth Year student of the B.A. LL.B. (Hons.) program at NLSIU, Bangalore

Given the amount of scrutiny faced by rape cases today, its interesting to consider how menstruation might affect such trials. I found it disconcerting that the judiciary continues to find it problematic to decide whether or not a woman can be raped during her menstrual period. High Courts vary in their consideration of menstruation being relevant, and their treatment of the question at times reflects the ignorant and confused societal conceptions about menstruation today. Here, I've tried to present a rational assessment of the approach adopted by courts in considering such facts relevant for deciding guilt or innocence, and whether the approach makes sense.

Proof of Rape and Menstruation

Before we proceed, it’s important to recollect how the Indian Evidence Act 1872 [IEA] works. The Act explains how evidence can be led to prove/disprove/not prove facts. Suppose we're dealing with a rape trial. The Prosecution must prove the allegation of rape as defined by Section 375 IPC, but how is this proved? The IEA explains a trial turns on proving/disproving the Facts in Issue, as defined under Section 3. For rape, it would primarily consist of proving/disproving whether (a) there was vaginal penetration, (b) against the victim’s consent, and (c) none of the general defences as present under Sections 76-106 IPC were applicable. To satisfy the burden of proving beyond reasonable doubt, the Prosecution would also need to prove the occurrence of other, relevant facts. The IEA through Sections 6-55 explains what is relevant to make evidence pertaining to those other facts admissible. So, we find that facts showing motive, conduct, relationships, cause/effect etc. are specifically made relevant through the IEA, and evidence may be adduced to prove these facts.

In rape trials, medical experts are called upon to prove the fact of vaginal penetration. Here, the Wet Smear/Vaginal Swab Test is an important component of the standard medical examination of rape victims to detect presence of semen or spermatozoa in the vagina. The test is regarded as a crucial piece of evidence in most trials, despite Section 375 not warranting any seminal presence as mere penetration has been made sufficient to commit the offence. In Sadhani Bai v. State of Madhya Pradesh (Criminal Appeal No 1222 of 1996 & Criminal Appeals No. 1326 and 2184 of 1996, delivered on 25.08.2012), B.K. Prakash v. State of Karnataka (MANU/KA/2201/2011) and Mangal Pahariya and Anr. v. State of Jharkhand [2007 (3) JCR 243 Jhr], the accused was acquitted as the smear test yielded negative results and the prosecution had little beyond this to prove its case. 

Appreciating the Relevance of Menstruation
Importantly, the Instruction Manual for Forensic Medical Examination Report of Sexual Assault (Victim) issued by the Indian Council of Medical Research clarifies that a wet smear would test negative when the alleged victim of sexual assault was menstruating during the incident (there are other situations as well which could lead to negative results such as using condoms). This can lead to problems in a system where the smear test is given great importance to decide allegations of rape. In Bablu v. State of Chhattisgarh (2006 CriLJ 3732) the court observed, among other loopholes in the prosecution story, that the fact of the prosecutrix menstruating during the incident falsified her story; an observation neither justified nor of any consequence. Similarly, in Sundari v. State of Chhatisgarh [2006 (4) MPHT 49 CG], a reason for the court to reject the prosecution version was the victim having been menstruating during the incident. Most recently, the Delhi High Court in Meena Sharma v. State (MANU/DE/0944/2014) in 2014 noted that “it would be difficult to believe that a girl who is menstruating would be subjected to a rape”. Here the Court went further and observed that if rape occurred, menstrual blood would have been found on the undergarments of the accused and its absence became another factor for acquittal. 

These observations, unnecessary and demeaning as they may be, are usually accompanied by a consideration of other reasons warranting an acquittal. But even so, how does the fact of menstruation ever come into the picture? If we look at the IEA, it’s clear that this is not a Fact in Issue, so it may at best be a relevant fact. If it’s not relevant, it’s inadmissible, so the question is relevant how? Scanning through sections 6 to 55 of the IEA, it seems one could make it relevant under Section 7 or Section 14, as either facts showing the “state of things” or existence of any “state of body or bodily feeling”. A Court may consider the victim's “state of body” relevant, thereby making her menstruation relevant under Section 14. Similarly, vaginal penetration being a fact in issue, the court may consider the state of the vagina relevant under Section 7. Does this make sense? I have my doubts. Rape under Section 375 makes the state of the victim’s body irrelevant to establishing the offence, rendering facts of this nature inadmissible for the trial. Even if we were to assume that menstruation was a relevant fact and such evidence was to become admissible; mere relevance does not warrant reliance, and certainly not such strong reliance in any case.

Where this fact is obviously relevant is the medical evidence. The doctor examining the victim is an expert called to testify under Section 45 IEA. Menstruation becomes part of facts which "support or are otherwise inconsistent with the opinions of experts" under Section 46. Courts have not been blind to this thought, as can be seen in Dharampal v. NCT of Delhi [Criminal Appeal. No. 567/2008 delivered on 02.02.2010 (Delhi High Court)] and Fanibhushan Behera v. State of Orissa [1995 CriLJ 1561 (Orissa High Court)]. In the former, the appellant-accused argued that absence of seminal presence in vaginal swabs cast a reasonable doubt on the prosecution story. The court reiterated that absence of semen does not rule out rape, highlighting how the fact of the prosecutrix menstruating at the relevant time greatly diminished the relevance of medical evidence. Consequently, the conviction for rape was upheld. In Fanibhushan, Pasayat J. took a similar stance: attributing the absence of semen on vaginal swabs to the fact of the girl’s menstruation during the incident, rather than no penetration. In both cases, menstruation was used to explain the absence of semen on wet smears, and the accused were convicted in the presence of other evidence. 

Statements which indicate the improbability of a woman being raped while menstruating are extremely dangerous. While it is one thing to acquit an accused in cases where vaginal wet-smears are not indicative of the presence of semen and adequate proof is unavailable from other sources, it is an altogether different thing to undermine a prosecution story because of the fact of menstruation during the incident. Not only does it deny justice through trial, but also ruthlessly negates the experiences of the several women who continue to be subject to rapes of the worst kind; while on their period. 

Thursday, May 14, 2015

Bidding Adieu to Dashrath Rupsingh Rathod?

If you haven't had a chance to read the news, the Lok Sabha passed the Negotiable Instruments (Amendment) Bill, 2015 yesterday, which is available here. Notably, it inserts Section 142-A to the statute, and inserts a new sub-clause to the existing Section 142 [sub-clause (2)]. The latter stipulates:

"(2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction the bank branch of the payee, where the payee presents the cheque for payment, is situated"

So now, the only place where we can file complaints under Section 138 is the court where the cheque is presented for payment. The operation of this jurisdictional rule is affected/implemented by the new section 142-A, which reads:

"(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other judgment, decree, order or directions of any court, all cases arising out of section 138 which were pending in any court, whether filed before it, or transferred to it, before the commencement of the Negotiable Instruments (Amendment) Act, 2015, shall be transferred to the court having jurisdiction under sub-section (2) of section 142 as if that sub-section had been in force at all material times.

(2) Notwithstanding anything contained in sub-section (2) of section 142 of sub-section (1), where the payee or the holder in due course, as the case may be, has filed a complaint against the drawer of a cheque in the court having jurisdiction under sub-section (2) of section 142 or the case has been transferred to that court under sub-section (1), all subsequent complaints arising out of section 138 against the same drawer shall be filed before the same court irrespective of whether those cheques were presented for payment within the territorial jurisdiction of that court.

(3) If, on the date of commencement of the Negotiable Instruments (Amendment) Act, 2015, more than one prosecution filed by the same person against the same drawer of cheques is pending before different courts, upon the said fact having been brought to the notice of the court, such court shall transfer the case to the court having jurisdiction under sub-section 142(2) before which the first case was filed as if that sub-section had been in force at all material times."

The Statement of Objects & Reasons [SoR] appended to the Bill makes it pretty clear that the amendments are directed towards nullifying the effect of the three judge bench decision in Dashrath Rupsingh Rathod v. State of Maharashtra [(2014) 9 SCC 129]. It restricted the jurisdiction for filing of complaints under Section 138 to only those courts within whose jurisdiction the cheque was drawn, and did so with retrospective effect. I've discussed Dashrath and its problematic retrospective application in some detail before. The SoR reveals that the amendment is spurred by representations received by the Government from various stakeholders (read banks) that the decision affords undue protection to defaulters. More important reasons seem to have been the failure of the decision to consider (i) the uniqueness of "at-par" payable cheques, (ii) the electronic clearance of cheques which is devoid of territorial-links, and (iii) the potential for multiple litigation between same parties at different locations.

These concerns raised with the decision were quite pertinent and the amendment is welcome, in most parts at least because I have my reservations about the ease with which the amendment allows for transferring matters (not because of the supposed harm to the common man which follows). What I fail to understand though is the fetish both Judiciary and Legislature seem to have with making changes retrospective. Through the new Section 142-A these jurisdictional tweaks are made retrospective in their operation. On a plain reading it suggests that all cases pending before any other court shall be transferred to the court of proper jurisdiction as now defined by Section 142(2). 

The possibility of the retrospective operation being unconstitutional was being discussed with friends yesterday, where my initial gusto legally supporting a challenge was dampened by the clearly correct position of Legislature being supreme. The only limits to retrospective operation are found in Article 20(1) of the Constitution, prohibiting the retrospective imposition of liability. This is indisputable. A challenge can certainly be mounted to the vagueness in Section 142-A regarding the stage at which a complaint must be for a transfer to happen. Surely the Legislature does not envisage every pending case to be scrutinized. Or does it? Cue: several more months of confusion about the jurisdiction of courts to entertain complaints under Section 138.

Thanks to Chetna Kumar for pointing out important errors in the previous version of this post

Saturday, May 9, 2015

Reversing the Presumption of Innocence - Part III

Over the last two posts, I described the various provisions restricting grant of bail requiring the court to determine, to some degree, the guilt or innocence of an accused person. Here, such provisions are subjected to a more critical eye. Warning: this is a long post.

Constitutionally Correct
I remain baffled by how Section 437(1) of the Criminal Procedure Code 1973 [Cr.P.C.] was never challenged as violating the Constitution. The Supreme Court used this as a circumstance in Kartar Singh v. State of Punjab [(1994) 3 SCC 569] to justify the validity of Section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act 1987 [TADA], where according to the Court a "galaxy of senior lawyers [names omitted] made the most virulent fusillade against the constitutional validity of all the Acts in general and the various provisions of those Acts in particular ..." The Court also gave a moral lesson to Prosecutors hoping for a proper enforcement of the TADA, which seems to not have been always considered.

The Court in Kartar Singh provided little basis for its decision on holding Section 20(8) as constitutionally valid: the existence of Section 437(1) Cr.P.C., along with standard rhetoric on balancing individual liberty with state security is what we get. But it beggars belief that a possibly discriminatory can be considered valid merely because it also exists across across other laws at that time. There was no discussion of what "reasonable grounds" might be, or how the other condition of offences committed on bail would be interpreted, 

Reasonable Grounds with Unreasonable Consequences 
The first of these issues got a better treatment in cases involving Section 37 of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS Act]. The Court consistently held that reasonable grounds mean "substantial probable causes for believing that the accused is not guilty of the offence he is charged with ... [which] in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty." [See e.g., Narcotics Control Bureau v. Dilip Pralhad Namade, (2004) 3 SCC 619; Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798; Union of India v. Rattan Malik, (2009) 2 SCC 624]. But how are these arrived at? For every determination, the court needs some material before it. This is determined by the stage at which a bail application is filed Basically, if I file for bail after filing of the charge-sheet the court would have all the materials relied upon by the police to consider the weight of allegations [as Section 173(5) Cr.P.C. requires these to be supplied to Court]. But if I file for bail immediately after arrest than all the court has is the FIR and an affidavit filed by the Station House Officer for the concerned Police Station.

Aware that a full-dress rehearsal of the trial to decide bail would spell the end of the presumption of innocence, the Court consistently held that such an inquiry is to be avoided. At this stage its not about determining guilt or innocence, but only whether there appears guilt or innocence to deny or grant bail [E.g., Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798]. This foolproof rhetoric has actually had rather oppressive consequences. How? In their refusal to have a mini-trial, courts exclude arguments on validity of materials collected during investigation [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528]. As a result, material which would be entirely inadmissible as evidence becomes useful to deny the grant of bail because the court refuses to consider potential inadmissibility to discard the material. So the prosecution relies upon confessions before police officers and co-accused persons (the former completely barred under Section 25 of the Evidence Act 1872 and the latter carrying little probative value under Section 30 of the same) to successfully get bail applications rejected. So while the police actually have nothing to prove my guilt, its enough to establish reasonable grounds of my guilt.

Look Ma, No Hands
This potential problem of using inadmissible materials arises if a bail application is filed later when materials have been collected. So why not file it earlier? After all, the Court would have lesser material before it to potentially prejudice the case giving bail a better chance right? Well, the court is not the only one with lesser material: the Cr.P.C. does not have any legal requirement for the accused to be given materials before filing of the charge-sheet during a pending investigation. Documents are supplied after taking cognizance as under Section 207 Cr.P.C [209-210 for a Sessions Trial]. Aside from being aware of the grounds for arrest [under Section 50 of the Cr.P.C.], the accused cannot see the materials used by the prosecution to rebut those claims. So those who get bail can say "Look Ma, no hands and I still got bail!"

There is an interesting thread of case law from the Gujarat High Court on this point. In 1976 the High Court considered the issue and accepted the argument that it would be unfair to not provide the accused with copies of materials relied upon by prosecution to oppose bail, and ordered for copies to be supplied [Kottam Raju v. State of Gujarat, (1977) 18 GLR 107]. In 1980, the High Court declined to supply copies noting this would start a mini-trial during a pending investigation thereby crippling it [Narsingh Revaji Ayachi v. State of Gujarat, (1981) 22 GLR 234]. Finally in 1992 the Court observed documents will not be present with the accused in a bail application before filing of the charge-sheet, so in the interests of justice the accused should have the liberty to file a fresh bail application after all materials have been supplied [Jitubhai Shanabhai Bhatt v. State of Gujarat, (19992) 2 GLR 832]. The inconsistency of opinion has meant most bail requests (unless for some urgency) are made after filing of the charge-sheet, which entails 2 months in custody are usually spent by persons accused of non-bailable offences, even for potentially bogus charges. And this is only for the seeking of bail; getting it is another question altogether as we saw above.

Guaranteeing a Completely Clean Future?
This is perhaps the only count where the Supreme Court interpreted the law in a manner protecting the accused. In Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra [(2005) 5 SCC 294] the Court considered bail under Section 21(4) of the Maharashtra Control of Organised Crimes Act 1999 [MCOCA] which in clause (ii) requires the court to have reasonable grounds that an accused is unlikely to commit any offence will on bail. In the last post I discussed how this could not only be potentially invasive of privacy but also allow a technical easy route for rejecting bail applications. The Supreme Court however interpreted this requirement of any offence to mean any offence under that Act, making the arguments on the issue more pertinent but also realistic to address for the accused. 

Conclusion: Reversing the Presumption of Innocence?
Why do I use this phrase for this series of posts? Because I think that if my trial takes place before the court which decided to reject my bail because it harboured reasonable beliefs of my guilt, I'm fighting my case with one hand tied behind my back. This is after having fought my bail with both hands behind my back, or potentially with no hands at all. The suspension of sentence awarded to Mr Salman Khan within a hours has attracted a lot of attention over the seemingly anti-underprivileged bias in the criminal justice system. Given how difficult it is to secure bail in the conditions these posts have discussed, maybe its not so surprising that those accused of serious crimes are often members of the underprivileged class. Of course, individual liberty can and must have limits. But there is much that needs to be done to ensure that the bail-process is at least a balanced fight between the accused and the State, and not an account of David versus Goliath. 

Saturday, May 2, 2015

Reversing the Presumption of Innocence: Part II

This series of posts is centered about provisions restricting the possibility of an accused being released on bail which use tests resulting in a reversal of the presumption of innocence. The long and unbroken history of these provisions in the various Codes of Criminal Procedure for India was traced in the last post. Over the last three decades such provisions have found their way into many special statutes, at which we will take a closer look here.

The Standard Text
The standard clause follows the spirit of Section 437(1) of the Cr.P.C., and makes certain additions:

(1) Notwithstanding anything in the Code of Criminal Procedure, 1973, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond unless
              (a) the Public Prosecutor has been given an opportunity to oppose the application for such                  release; and
              (b) where the Public Prosecutor opposes the application, the Court is satisfied that there are               reasonable grounds for believing that he is not guilty of such offence and that he is not likely               to commit any offence while on bail.
(2) The limitations on granting of bail is specified in sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973, or any other law for the time being in force on granting of bail.

After going through the statute book, I found this provision was present in the following statutes:
  1. Rule 184 of the erstwhile Defence of India Rules supplementing the Defence of India Act 1971. 
  2. Section 12AA (inserted in 1981), of the Essential Commodities Act, 1955.
  3. States of Punjab and Tripura inserted this provision as Section 439-A to the Cr.P.C. so applicable within their territory, in 1983 and 1993 respectively. This restricted bail to persons accused of certain offences, inter alia Section 121, 124-A IPC.
  4. Section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 [TADA].
  5. Section 37 (amended in 1989) of the Narcotic Drugs and Psychotropic Substances Act 1985 [NDPS]
  6. Section 7A (inserted in 1994) of the Anti-Hijacking Act, 1982. 
  7. Section 6A (inserted in 1994) of the Suppression of Unlawful Acts against Safety of Civil Aviation Act 1982. 
  8. Section 21(4) of the Maharashtra Control of Organised Crime Act, 1999.
  9. Section 8 of the Suppression of Unlawful Acts against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act 2002.
  10. Section 45 of the Prevention of Money Laundering Act, 2002.
  11. Section 51A (inserted in 2002) of the Wildlife Protection Act, 1972.
  12. Section 49(7) of the Prevention of Terrorism Act, 2002 (nearly identical) 
  13. Section 43D (inserted in 2008) of the Unlawful Activities Prevention Act, 1967 [UAPA] (nearly identical).
  14. Section 36AC (inserted in 2008) of the Drugs and Cosmetics Act, 1940.
There is a trend here: offences potentially canvassing anti-national elements are usually carrying these stringent clauses (this is further supported by the fact that nearly all these statutes are provided on the website of the National Investigative Agency). Further, most of these statutes are the product of India's international obligations through treaties it has signed (e.g: the NDPS Act is the product of the 1961 Single Convention on Narcotic Drugs, 1971 Convention on Psychotropic Substances). In these cases, the State can argue that the balance between individual liberty and state security should be tilted in favour of the latter. This was in fact expressly approved by five judges of the Supreme Court in Kartar Singh v. Union of India [(1994) 3 SCC 569].

The requirement to show "reasonable grounds for believing that he is not guilty of such offence" of Section 437 has been supplemented by a second condition: the accused must be "not likely to commit any offence while on bail". These twin conditions in turn bring unique problems. The first condition, not guilty of the offence, requires the accused to rebut specific allegations for that case. But these allegations might change from the initial FIR to the 173 Report, as often happens in UAPA cases. So would that require/mandate a re-hearing on bail as well? I haven't heard of this being followed, though a literal reading of the text does lead to this conclusion. The second condition in requiring the establishment of a belief that the accused is unlikely to commit any offence on bail can give the prosecution immense leverage to level allegations deeply invasive of one's privacy having no bearing to the present facts. The any offence part makes it extremely easy and legally sustainable for the judge to reject bail applications. It also results in the entrenchment of a criminal stereotype already well-established across the country, and all but erodes the presumption of their innocence.

Conclusion: Getting Bail Becomes Harder
Therefore, we find that these clauses have made getting bail harder than what was the position under Section 437. Further, these limitations have been clarified as notwithstanding anything in the Cr.P.C., i.e. that any benefits under the Cr.P.C. shall not accrue to the Accused. These are expressly stated as being in addition to whatever limitations the Cr.P.C. or other laws have. In the next post, the clauses restricting grant of bail will be considered more critically challenging their validity.