Please - Odhikar

charges saying 16-year-old Mathura did not raise any alarm and there was no sign of struggle as
there was no injury on her person. It agreed with the trial court verdict, which was set aside by
Bombay High Court, that she was habituated to intercourse!
There has been a paradigm shift in the apex court's approach since then.
Signs of the shift came in the Rafique case judgment in 1980, in which Justice Krishna Iyer said,
"When a woman is raped, what is inflicted is not mere physical injury but the deep sense of
some deathless shame…" and added that the response of the judiciary cannot be muted to such
grave human rights violation.
The Supreme Court has not looked back since. It took serious note of the fact that rape accused
invariably attempt to cast aspersions on the chastity of the victim and term her of easy virtue to
convince the court that his unpardonable act is condonable.
In 1991, in the case of State of Maharashtra vs Madhukar N Mardikar, the Supreme Court put a
legal halt to such pleas. It said: "The unchastity of a woman does not make her open to any and
every person to violate her person as and when he wishes, She is entitled to protect her person if
there is an attempt to violate her person against her wish. She is equally entitled to protection of
law. Therefore, merely because she is of easy virtue, her evidence cannot be thrown out."
Former CJI and Chairperson of National Human Rights Commission Justice A S Anand says:
"Rape is a crime more serious than murder as it destroys the very soul of the hapless female."
Another pertinent issue may be mentioned here. The right to self-defense does not extend to
handing out a disproportionate response to the aggressor. In a significant ruling, the Supreme
Court has ruled that the victim could land on the wrong side of the law if the harm caused to an
assailant is much more than required to defend oneself.
In an important rider to the valuable right, the court said a person on the receiving end of
violence cannot, on the basis of injury received, claim to justify the retaliatory blows on the
aggressor as exercise of the right to self-defense. If retaliation is excessive, the law will not
support claims to self-defense.
This ruling was handed out recently by a Bench of Justice S B Sinha and Justice R V
Raveendran while delivering two judgements in cases where the right to self-defence was
invoked. One incident related to forcible cutting of paddy and the ensuing violence in Bhadsa,
Purulia. The second had to do with a clash in Devanandpur, UP, over burning of 'Holika'.
Justice Sinha said private defense could be used to ward off unlawful force and to prevent it, to
avoid unlawful detention and to escape from such detention. For defending one's land, moderate
force could be used, he said. Defense of dwelling house, however, stands on a different footing.
The Bench noted that the right to self-defense could not extend to causing the aggressor's death
in cases like robbery, house-breaking by night, attempt to set house afire and theft.
The court said it was aware of circumstances under which a person is forced to exercise the right
to private defense. However, it said: "Right to private defense cannot be exceeded to cause more
harm than necessary….. It is also well-settled that a right of private defense is unavailable to the
aggressor. The need to act must not have been created by the conduct of the accused in the
immediate context of the incident which was likely or intended to give rise to that need."
Report 2005
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