Indian Evidence Act
During the recent judgement by the Goa session’s court in Tarun Tejpal case the court referred to the survivor’s sexual history in graphic detail. Further, the judgement held the following things,
- The court denied accepting the victim as a reliable witness. It was stated that the survivor did not fit into the court’s preconceived ideas of a rape survivor’s behaviour.
Can the court go into the details of a survivor’s sexual history?
- Doing so would be a form of discrimination by the court.
- It violates Article 14’s guarantee of equality before the law and the equal protection of laws.
- Article 15 of the constitution also forbids the state from discriminating against citizens based on stereotypes related to their sex and gender.
- Supreme Court of India has warned against stereotyping rape survivors.
Section 155(4) of the Indian Evidence Act
- Under Section 155(4) of the Indian Evidence Act, a rape survivor’s past sexual history used to be acceptable. The rape accused could state that the rape survivor was of immoral character and claim that she consented to the sexual acts.
- This section was removed in 2003 after recommendations in the Law Commission of India’s 172nd report.
What are the significant cases which led to amendments in the Indian Evidence Act?
- Aparna Bhat & Ors. vs State of Madhya Pradesh case: the Supreme Court warned of the dangers of typecasting rape survivors. It mentioned the prevalent rape myths which include fixed notions of chastity, resistance to rape, having visible physical injuries, behaving a certain way, reporting the offence immediately etc. The SC directed courts not to doubt a woman’s testament just because she was sexually active.
- Tukaram vs Maharashtra, 1979: the Supreme Court released two policemen accused of raping a 14-year-old Adivasi girl in a police station. Stating that she was sexually active and considered her proof as “a tissue of lies”. This verdict led to the introduction of Section 114-A of the Evidence Act. It applied in serious rape cases where the accused was a police officer or member of the armed forces.
- In 2013, the JS Verma Committee, created after the Delhi 2012 rape case, suggested that a past relationship between the accused and the victim should be inapt while deciding whether the victim consented.
The Criminal Law (Amendment) Act, 2013
- Section 53A of the Evidence Act stops courts from depending on evidence of the character of the victim. Such as her prior sexual experience with any person to decide questions of consent in sexual assault cases.
- The 2013 Act also amended Section 146 so that a rape survivor cannot be asked questions about her immoral character or prior sexual experience to prove consent.
- The 2013 amendment also introduced a fixed minimum sentence of seven years imprisonment for rape (This is increased in 2018 to 10 years) and 10 years for serious rape.
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