And Justice for the ‘Suryanelli Girl’
Sexually assaulted for 40 days continuously, by 42 men: After 17 long years, will this epic tale of injustice ever end?
Arathi PM Delhi/Kasaragod (Kerala)
The national capital witnessed unparalleled protests for gender justice and sexual violence against women. The December 16 gangrape in Delhi generated public attention across the national spectrum. However, public memory in Kerala hardly recollected the injustice inflicted on a girl (now grown-up woman) from a small village in Idukki district called Suryanelli for 17 long years by the criminal justice system of this country.
The patriarchal public sphere of Kerala and the ruling Congress government in Kerala treated the ‘Suryanelli girl’ with complete insensitivity. She was mentally tortured. The government tried to ‘teach her a lesson’ on what happens if you fight against big shots like PJ Kurian (Congress leader and Deputy Chairman of the Rajya Sabha) by constituting a false money misappropriation case against her. Through stares, sexist, derogatory statements, the male gaze and social exclusion, the public sphere made social life impossible for her.
On January 31, 2013, the Supreme Court expressed its shock at the Kerala High Court verdict in the
Suryanelli case and ordered a retrial within six months; hence, media attention has refocused on the case.
The Suryanelli case involved the rape of a 16-year-old girl. In 1996, she was sexually assaulted for 40 days continuously — by 42 men. Due to the unique character of this case, it was discussed in diverse spheres. Among the accused were high-profile individuals. These included Kurian, then cabinet minister in Delhi. The case led to a huge political debate in Kerala and was used as a campaign point in the parliamentary and assembly elections. The issue was taken up by feminist groups seeking justice for the victim/survivor (I am not calling her only ‘survivor’, as she has been ‘victimised’ by the entire social system).
The then CP(M)-led Left Front government in Kerala constituted the first-ever special court in 1999 for the trial. This took into consideration the large number of the accused and witnesses and the involvement of different jurisdictions. This special court convicted 36 of the 42 accused in 2002 on charges of abduction, conspiracy, illegal detention, rape and gangrape. This verdict was overturned by a division bench of the Kerala High Court that acquitted all but one among the convicted 36.
Indeed, the verdict of the Kerala High Court by Justice KA Abdul Gafoor and Justice R Basanth (dated 20.1.2005) is primarily based on male fantasies about the female body and sexuality. The institutional inter-play of law and medicine, based on their inherent anti-women perception, is reflected here since the
medical/forensic evidence played a crucial role in the judicial decision-making process.
The special prosecutor had contended that, in spite of the severe infection in her vagina, the main accused and many others had raped the girl. Some of them raped her more than twice a day. According to her deposition in the court, during those horrible days, her condition was precarious and she had acute pain at the back of the hip. In spite of this, the division bench observed that “to rape a girl with such ailments, pain and infected vagina may be humanly impossible, as contended by the appellants, except with roaring cry from the victim (the girl)… has no case that she had even wept during the alleged rapes… no resistance mark was found on her body”.
According to the doctor, there were no signs or evidence of ‘resistance’. The bench observed that the girl had many opportunities to run away but she did not do so. The Kerala High Court did not even take into account previous judicial observations in the Mathura case that absence of resistance does not amount to willingness to have sex. When the girl was terrorised and forced to undergo sex, the court considered it consent.
The judgment held that the medical opinion was of no help to the prosecution to prove that there was intercourse using force. The doctor who examined the girl after she came back home, had given crucial evidence for the prosecution. The doctor reported that “vaginal examination was painful, vulva was oedematous. There was infection. There was purulent foul smelling discharge. She would have suffered severe pain during the sexual act if it had continued as stated by her during the period of infection.” (High Court of Kerala, 2005, pp 481.)
But the judges pointed out that at the time of cross-examination the doctor said that infection could also be caused by uterine contraceptive devices. The doctor told the court that he examined the vaginal wall and did not find it lacerated. The court observed, that, according to the doctor, during violent intercourse also, “laceration in the vaginal wall occurs posteriorly.” (High Court of Kerala, 2005, pp 482-483).
Thus, overturning the verdict by the trial court, the division bench completely glossed over the evidence given by the victim and medical evidence. Legal precedence in the case of medical and corroboratory evidence was conveniently ignored by the judges.
Ironically, the court observed the past history of the girl and found she had misappropriated the money given by her parents to pay hostel fees and had sold her ornaments to pay the fees. That, for the court, meant her ‘character’ was not good, and thus it was not ready to accept the allegation of rape from such a girl. The court said that her father used to be suspicious about her character and gave directions to hostel authorities that permission for her to go out should be granted only with his prior consent. If a girl of this ‘character’ spent 40 days away from the parents, it was implied that she had consented to have sex. To prove otherwise, corroborative evidence was needed.
These sexist remarks are reproduced through judicial decisions time and again. In the Suryanelli case, the High Court of Kerala verdict explicitly does character assassination of the victim/survivor.
‘She was a child prostitute. It was not rape… She was a child with a bad track record’ — Justice R Basanth
The other contention is that there is no reliable evidence. The only vital evidence is that of ‘PW3’, who cannot be reckoned as a ‘trustworthy’ witness. Her evidence deserves careful scrutiny because of her past conduct of squandering the hostel fees and daring to pledge her ornaments (on 1.11.1996). (High Court of Kerala, 2005, Para 10.)
It is contended that even if PW3 is found to be believable, a conjoint reading of her evidence will show that she was not an unwilling partner. So far as the accused are concerned, there was no resistance from her part, so that those who approached her could discern that she was unwilling for intercourse or there was absence of consent. Absence of consent on the part of PW3 has not been satisfactorily proved in this case to bring home the guilt of the accused under Section 376(1) or 376(2)(g), (Para 11).
The court was concerned that in these 40 days the girl did not make a single attempt to escape. She stayed in a number of hotels and travelled in public conveyance. She could have tried to escape but she did not do so. The allegation that she was raped while she had severe vaginal infection was false, it said. Astonishingly, the court opined that it was not humanly possible to rape in such condition unless and until she screams. Since the court did not have evidence that she cried out loudly, it reasoned that most of the accused approached her misunderstanding her, to be a prostitute.
If the girl had shown resistance, then only could it be called rape. Considering the ‘character’ of the girl, it was difficult to believe that she had shown resistance. The court concluded that the family wanted a justification for their daughter absconding. So the family portrayed her as a victim of rape to save their face in public.
On February 9, 2013, in a sting operation by a Malayalam TV channel, Justice R Basanth was seen to make this observation: “She was a child prostitute. It was not rape. She used to misuse the money given by her father to remit the school fees. She was a child with a bad track record.” There was huge outrage against him in Kerala, demanding punishment under the provision related to character assassination in the upcoming central ordinance.
The central contestation in the Suryanelli trial revolves around the expression of ‘consent’ or on the determination of whether a coercive act of sex is rape or not. The judiciary interprets ‘consent’ on the basis of marks of ‘resistance’ on the female. This has always been ratified by medical opinion by using the demeaning ‘two finger test’.
Patriarchal values influence the judicial understanding of what, in a woman’s actions or words, imply consent to sex. There are major criticisms raised by women’s movements against taking bodily resistance of the female as a vantage point in judicial decision-making in cases of rape. The demand to abolish the ‘two finger test’ should be viewed in this context; this is another recommendation by the Verma Committee.
The demand for amending criminal codes in cases of sexual assault comes from around the globe. Joan McGregor (Why When She Says No She Doesn’t Mean Yes: A Critical Reconstruction of Consent, Sex and the Law), argues that “criminal sex codes are infected with the history of patriarchy, which protects the interests of the men and fails to protect the interests of women” (1996, p. 176).
The central contestation in the Suryanelli trial revolves around ‘consent’ or on the determination of whether coercive act of sex is rape or not
Feminist legal theorists critique the understanding of physical resistance as a corroborative requirement and discussion of past sexual histories in rape cases. They point out that these assumptions are not objective and rational under criminal law and are thus unfair. The same argument is reflected in the Verma Committee’s recommendations.
When the judiciary categorises women as ‘good’ or ‘bad’ by looking at them through a judicial lens of past sexual experiences and affirms the findings by corroborating them with forensic examination results, it tries to reinforce morality. Until recently, before the enactment of the Criminal Law (Amendment) Bill 2010, rape within heterosexual marital relationships was not accepted by the judiciary. Within the family and within marital relationship, violence is taken for granted.
Some court directives to the accused in rape cases to marry the victim/survivor comes from the patriarchal idea that female bodies can be ‘legitimately violated’ by the male within the institution of marriage. In the Suryanelli case, the verdict of the lower court to punish all the accused also comes from sympathy for the plight of the victim/survivor for not being able to have a ‘normal marital life’ after this bad experience; it even directed to award compensation under the Code of Criminal Procedure. The ‘protective’ character assumed by the Indian judiciary, based on notions of chastity and virginity, challenges the feminist notions of female sexuality and women’s rights of control over their bodies.
Therefore, while awarding the sentence, the court cannot ignore the tragic plight of PW3. It has a duty to wipe out her tears to the extent possible. It is not possible to erase the traumatic experience; the inhuman treatment would be alive in her memory forever. Her professional career is forever lost. She cannot aspire for employment or a serene married life, considering the social surroundings of our society. Virtually, she has lost her life itself.
There are several levels of bias, insensitivity and trauma in medico-legal procedures. In the Suryanelli case, she was the object of publicity, she had to undergo exhausting trips from one hospital to another, and multiple examinations. For sections of the media, every hospital visit was a voyeuristic spectacle, causing her immense trauma.
There were huge protests by women’s groups against the construction of rape as a scandal-spectacle. The Kerala High Court then took suo moto cognizance of a pamphlet by an NGO as application against producing the victim/survivor for evidence/ forensic examinations along with the accused in the same vehicle. The court issued an order against such police action.
It is difficult for a girl of 16, from a lower middle class rural background, to approach the court without additional/external support. The judicial trend created by the Kerala High Court verdict is dangerous. The decision violates female bodies and sabotages the spirit of law to protect the rights of women from sexual exploitation. It is hoped that the direction of the Supreme Court to conduct a retrial will act as a corrective. One cannot, however, say if this will bring any qualitative change in the life of the ‘Suryanelli girl’..