Facts:
Hardik had met the victim in her 1st year in college and after getting hold of her private pictures he started blackmailing her for sex with his friends Karan and Vikas joining the act soon after even though she never consented to any of it.
Issues the Judge is trying to solve:
- Should the order of Vikas and others being convicted for raping a fellow student givenpreviously be suspended?
- Was it a case of rape or consensual sex?
Critique of The Reasoning:
The Judge lays emphasis on the fact that the survivor did not initially report the accused to the college authorities or her parents and they just assume that is necessary to reveal everything to one’s parents and completely ignore the reason that the mental trauma may have prevented her from reporting to her parents which is illogical.
The court in its reasoning states that ‘The entire crass sequence actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world.”Here her consumption of cigarettes and her habits have little or no bearing on the behavioural aspects of her ‘sexual encounters’ and reference made to her buying condoms is not a sign of assent by the victim, but blatant coercion and only adds to the atrocity suffered by the victim. It is nowhere mentioned in the law that rape of an alcohol drinking woman is different from the rape of a normal woman. Rape involves the non-consensual and forcible imposition of an act of penetration by the accused on the survivor. This is basic criminal law. This is what has been drafted in the law. The order also refers to a ‘perverse streak’ displayed by the victim since she agreed to purchasing a sex toy as suggested by the accused. It seems that the judge is illogical, and his analysis is incomplete, and he does a flawed reading of the law as the possession of a sex toy and her being alcoholic changes the fact that inhumane mental and physical assaults was carried out, which is incredibly ludicrous as the court is actually judging the woman and not the crime that has been complained of.
The court said that, ‘it would debatable whether such escapades were possible in or around a place throbbing with activity and frequented by children late night.’ The court uses its discretionary power to completely eliminate the fact that she was raped on a simple assumption that such a big incident cannot take place in an area where people are lurking nearby.
The Court says that the” testimony of the victim does offer an alternate story of a casual relationship with her friends, the narrative does not throw up gut wrenching violence, that normally precede or accompany such incidents.” I think it’s unfortunate as for the court note the victim’s casual relationships and the lack of “gut wrenching violence” as “compelling reasons” for suspending the sentence. From this, it can be concluded that our law contains various degrees of rape through which the culpability of the rapists will be decided. Implying that if an incident is not grave enough the rapist may be acquitted as the law doesn’t find it gruesome enough. The judge’s analysis again seems to incomplete and faulty as he makes his judgement just on the fact that there was no violence afterwards the incident.
Fallacies in The Judgement:
- Ad Hominem –The court rather than focusing on the arguments shift the reasoning towards the character of the victim.
- Argumentum ad Misericordiam –The audience is asked to accept the arguments on the speaker’s piteous circumstance of not being able to get education rather than focusing on the arguments given by them.
Conclusion/Opinion on the judgement:
I think the judgement given by the judges is full of flaws and they even managed to almost change the nature of accused persons to that being of a victim saying that they will be deprived of education etc. The order does not only assassinate the victim’s character but Their selective use of rhetoric, which avoids vulgarity to mask the horrors behind their beliefs, viciously attacks the survivor on irrelevant and inhumane grounds. The obsession of our judiciary with the use of sophisticated, flowery language does not negate the fact that the ‘misadventure stemming from a promiscuous attitude and a voyeuristic mind’ was apparently a reason for the judges to order a suspension of the sentence of the accused. The paternalistic tone of the judgement, coupled with the affectionate chiding of the accused, is particularly alarming.
