SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

“Rape is a crime not only against the person of a woman, it is a crime against
the entire society. It destroys the entire psychology of a woman and pushes her
into deep emotional crisis.... It is a crime against basic human rights and is
violative of the victims most cherished right, namely, right to life which includes
right to live with human dignity contained in Article 21.”
The ratio in this judgment was relied upon in a subsequent decision of the Supreme Court in
The Chairman, Railway Board & Ors v. Chandrima Das. 445 In this case the Supreme Court
granted a non-citizen compensation for rape that was committed on her by railway
employees. In reaching its decision the court noted that rape has been interpreted as being
violative of the right to life under Article 21. It held that, “according to the tenor of the
language used in Article 21, it [the right to life] will be available not only to every citizen of
this country, but also to a ‘person’ who may not be a citizen of the country.” In its reasoning
the court relied upon a number of international human rights treaties and particularly on the
definition of violence against women provided in the UN Declaration on Violence Against
Women and Article 3 of the Convention on the Elimination of All Forms of Discrimination
against Women. 446 It held the State to be vicariously liable for the tortuous act of its
employees and ordered the payment of compensation for the violation of the fundamental
right that resulted.
On procedural aspects, previously Section 155(4) of the Indian Evidence Act linked the
credibility of the prosecutrix with her ‘general immoral character’. This provision was,
however, deleted in 2003 pursuant to the Law Commission of India’s recommendation. This
provision had been used to destroy the credibility of the prosecutrix. However, even before
this amendment, the Supreme Court, in the State of Maharashtra v. Madhukar 447, held that
unchastity of a woman does not make her “open to any or every person to violate her person
as and when he wishes” and that she was entitled to the equal protection of laws.
The Indian Supreme Court has, in numerous judgments, allowed convictions for the offence
of rape based on the uncorroborated testimony or sole testimony of the prosecutrix. 448 This is
important as oftentimes the prosecutrix is the only person who can testify to the offence of
rape. However, the court also clarified that it must be established that the sole testimony is
credible, and that the court will have regard to the surrounding circumstances to decide on the
credibility of the evidence of the sole witness. 449
In State of Punjab v. Gurmit Singh, 450 the court held that trials for rape ought to be held in
camera as a rule, and open trials can only be the exception. As in the case of sexual
445 AIR 2000 SC 988
446 Article 3 of the Convention on the Elimination of All Forms of Discrimination against Women states that
women are entitled to the equal enjoyment and protection of all human rights, which would include, inter alia,
the right to life, to equality, and to liberty and security of person.
447 1991 (1) SCC 57
448 See e.g. Madho Ram v State of Uttar Pradesh AIR 1973 SC 469. In Bharwada Bhoginbhai Hirjibhai v State
of Gujarat AIR 1983 SC 753, it was held that the “absence of corroboration notwithstanding…if the evidence of
the victim does not suffer from any basic infirmity, and the ‘probabilities factor’ does not render it unworthy of
credence, as a general rule, there is no reason to insist on corroboration”. Lawyers Collective, Handbook on
Law of Domestic Violence, 2009
449 See Lawyers Collective; ibid.
450 1996 (2) SCC 384
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