Former Chief Justice of the Jammu and Kashmir High Court Gita Mittal recently commented on the challenges faced by rape survivors both within and outside the courtroom.

She noted that even legally trained minds including police and the courts may bring with them their own social baggage, which makes them reluctant to pro-actively tackle rape cases.

In this regard, she recounted a case concerning the rape of an eight-year-old girl. The trial court judge had vaguely recorded the rape as “galat kaam” (wrong thing) and “buri harkaten” due to the stigma attached to the crime, the retired High Court judge said.

“This shows the reluctance of even legally trained mind to engage with matters relating to the human body and especially sexual encounters. So, it showed the reluctance of the investigating officer, the magistrate and the judge. Even legally trained minds bring the baggage of their social upbringing and their education, etc, to whatever services they discharge," she pointed out.

She went on to observe that access to the court system does not always mean access to justice for a rape survivor. Rape victims need to be empowered to depose strongly in courts, she added.

“Access to justice actually is not synonymous with access to courts. The child needed to be empowered much, much more. We expect the victim of rape - the most heinous crime, the most worst thing that can happen to a woman - to speak in a public courtroom, standing shoulder to shoulder with an offender."

She noted that even in genuine cases, rapists may go scot-free because of a lack of evidence. Speaking about the case she dealt with, Justice Mittal said,

"If this child had actually been raped, I had to acquit because there was no evidence to sustain, no legal evidence. If she had been raped, grave injustice has been done to her.”

Justice Mittal was speaking at screening of the Taapsee Pannu-starrer film, ‘Assi’, organised by law firm Khaitan & Co. in collaboration with PVR Inox and the Rani Fund in Delhi on March 27.

The film depicts the tale of a young mother gang-raped in Delhi. The movie deals with themes of sexual violence, the rigamarole of a criminal trial in such cases and their impact on society.

The film screening was followed by a panel discussion on the topic “The Law, the Courtroom and the Survivor: Re-Imagining Justice.”

Justice Gita Mittal stated that while practicing law as an advocate, she scrupulously stayed away from cases involving sexual violence, as she found such crimes abhorrent. However, she later had to examine such cases while serving as a judge.

She cautioned that the judges and the police must keep aside their biases while performing their professional duties in dealing with a rape case. 

Justice Mittal also spoke about the Park street rape case to elaborate on the difficulties faced by rape survivors in the legal system. 

“It’s great injustice to the victim. (During rape trials) she is not able to depose. The lawyer for the accused will not let her finish the question. Irrelevant questions are asked - who was your last boyfriend? When did you last go for a date? When did your mother divorce your father? All these are irrelevant, so judge has to be more vigilant and more interactive and controlled.”

She further questioned why rape convicts are not directed to bear the costs of compensating rape victims.

“We have a very strong, vibrant victim compensation scheme. Interim compensation is paid at the earliest after the crime is reported and the final amount is paid after the at the end of the trial. Compensation is taxpayer’s money. Why shouldn't the accused compensate the victim for the crime, the injury that he inflicted?" she asked.

Justice Mittal went on to criticise the society’s tendency to shame rape victims.

“It is not easy to be a victim of sexual crime. Society itself does victim shaming in a big way. So believe the victim. Don't do victim shaming. Give the victims a fair chance. Don’t judge. Try to believe them, rather than disbelieving what a victim is saying.”

Senior Advocate Vrinda Grover also spoke at the event. She commented on the shortcomings of knee-jerk reactions to rape cases. Notably, the film screened at the event also depicts themes of public vigilantism in rape cases.

“Why is it that we are only angry about rape? If this film was about domestic violence, would we have gathered here? A woman's body was just a thing for these men [in the film]. For many men, for many sisters, our responses are selected, and that's why vigilantism comes in," Grover said.

She referred the 2019 rape of a Hyderabad-based veterinarian in which suspects were shot dead by the police. She criticised the manner in which the public applauded the police approach even though the crime was never properly investigated or tried in a court of law.

“We don't know, and we'll never know whether they committed the crime. We don’t know who raped, who murdered her, what happened? We will never know now," she pointed out.

She went on to note that public rage is often selective.

“Where is this anger coming from and why is it so selective? There is massive sexual violence and sexual abuse in this country on the streets and in our homes. What are we going to do about it? How many men do you want to hide? Who do you want to hang and punish?” 

Justice Gita Mittal weighed in by noting that the response to rape cases involving underprivileged women is often not as loud.

"The sexual violence of Dalit women is routine. Maybe some of you think there is no casteism, but then I think often we don't know. Unless we belong to that group, just like we think that roads of Delhi are safe. Most women don’t think so," added Grover.

The senior lawyer went on to emphasise that the legal system cannot be swayed by public emotions.

She also highlighted that until the underlying reasons for sexual violence are addressed, such crimes will continue.

“We respond to violence, we do not address the underlying issues. For the middle class, I always say give equal economic rights to sisters, daughters, wives, mothers, then shake patriarchy. Unless you will dismantle patriarchy and caste domination, these are the reasons for violence. We can feel bad. We can say good riddance. We can put few people away. It will not go. We are part of the problem," she said.