No woman is bad enough to deserve being raped. It has taken Indian law a hundred and thirty years to accept this proposition. The Centre has recently approved an amendment to the Indian Evidence Act 1872, which could make the experience of going to court a little less harrowing for the rape victim. The Union cabinet has ratified the deletion of Section 155 (4) of this act, which stated that “when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character”. This meant that the victim could be questioned on her character and sexual history in order to prove her “unworthy of credit”. In effect, this allowed the court to establish, on the basis of an essentially moral judgment, whether or not she could have consented to the sexual act. This section of the Indian Evidence Act was used by a sessions court in 1974 to acquit two policemen who had raped a tribal girl because she was deemed by the court to have been “habituated to sexual intercourse”, and therefore quite capable of giving consent. Another court in Kerala quashed the suit of a girl forced into prostitution and repeatedly raped by her clients because “the version of a woman of this disposition is not so sacrosanct as to be taken for granted”. Making any such evaluation irrelevant to the evidentiary procedure will certainly protect the dignity of the victim during questioning at the trial. It also dissociates moral attitudes to sexuality — particularly female sexuality — from the absolute heinousness of rape.
This amendment implements one of a number of far-reaching changes recommended by the law commission and the national commission for women. The former’s 172nd report to the Union government earlier this year sought to broaden the socio-legal perception of rape. This broadening implies the revision of not only the Indian Evidence Act but also the Indian penal code and the criminal procedure code. The report wanted to substitute rape, defined in terms of vaginal penetration, with the wider notion of “sexual assault”. It had suggested the deletion of Article 377 of the IPC, an archaic law which criminalizes homosexuality. It had also advocated making rape laws gender-neutral, through the legal recognition of the sexual assault of males by other males. Legal reform is only one aspect of the larger social changes needed to make the Indian democracy sexually more equitable and just. This amendment of the Evidence Act could mean that the Centre is taking the law commission report seriously. If so, then Indian men and women could hope to exist as sexual beings in a more civilized and secure society.