A Critique of the Construction of the West in Indian Legislature; Or The Actuality of

Reverse Racist Sexism

- K.S Arsh, Sunday, October 16th, 20016.

The Grounds of an Inditement

In the apprehension of the institution of the judiciary in Indian legislature and in sensitivity to it’s
crucial role and function, this enquiry begins by pointing to an essential distinction which we
need to make if reasonable dialogue is to prevail over prejudices which may perhaps have deeply
seeded political motivations. The distinction in question is that between the verdict delivered on
a case and the ‘grounds’ offered as reasons for such a verdict. A verdict itself has significance for
the contesting parties concerned, in their expectation for justice in the particular case being
litigated between them. The grounds for a verdict however as expressed by the presiding bench
carry consequences which are to be felt in subsequent verdicts as it is the ‘grounds’ for a verdict
that establishes why and how a precedent is to be employed.

It is hence constitutive of what we refer to as the spirit of the law inasmuch as it is determinative
of how and under what light subsequent cases of a similar complaint may be handled by the
instituted position of the bench. Ergo, the gravity of the selection of grounds in the deliverance of
a verdict cannot be overstated. So let us begin to actually dig into the meat of the matter:-

In the year 1983, the Supreme Court of India upheld a verdict against Bharwada Bhoginbhai
Hirjibhai, accused of the sexual abuse of two children for which he was duly sentenced. This
case had risen from a Trial Court, which had found the accused guilty of wrongful confinement,
violating modesty and rape. In the appeal to the High Court the conviction was upheld, however
the charge was reduced from rape to attempt to rape, as this was what was ascertainable by the
evidence from testimony and the corroborative medical findings. It was in the Supreme Court
however, which had, when appealed to upheld the Trial Court’s charge of rape and this was what
it stated as the grounds for it. -

“In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence
of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the
woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted
with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male
chauvinism in a male dominated society. We must analyze the argument in support of the need
for corroboration and subject it to relentless and remorseless cross-examination. And we
must do so with a logical, and not an opiniated, eye in the light of probabilities with our feet
firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must
not be swept off the feet by the approach made in the Western World which has its own social
mileu, its own social mores, its own permissive values, and its own code of life. Corroboration
may be considered essential to establish a sexual offence in the backdrop of the social ecology of
the Western World. It is wholly unnecessary to import the said concept on a turn-key basis and to

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transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores,
responses of the Indian Society and its profile. The identities of the two worlds are different. The
solution of problems cannot therefore be identical. It is conceivable in the Western Society that a
female may level false accusation as regards sexual molestation against a male for several
reasons such as:

(1) The female may be a 'golddigger' and may well have an economic motive to extract money
by holding out the gun of prosecution or public exposure.
(2) She may be suffering from psychological neurosis and may seek an escape from the
neurotic prison by fantasizing or imagining a situation where she is desired, wanted, and chased
by males.
(3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a
grudge against a particular male, or males in general, and may have the design to square the
account.
(4) She may have been induced to do so in consideration of economic rewards, by a person
interested in placing the accused in a compromising or embarrassing position, on account of
personal or political vendetta.
(5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her
feeling of self-importance in the context of her inferiority complex.
(6) She may do so on account of jealousy.
(7) She may do so to win sympathy of others.
(8) She may do so upon being repulsed.

By and large these factors are not relevant to India, and the Indian conditions. Without the fear
of making too wide a statements or of overstating the case, it can be said that rarely will a girl or
a woman in India make false allegations of sexual assault on account of any such factor as has
been just enlisted.” 1

This, it would appear is what we take to be representative of the thinking of the highest court in
these lands, and a careful reading will not miss predispositions which are carved into the letter of
the law. At the expense of stating the obvious, these grounds present not merely the reasons for
how corroborative evidence is supposedly surplus to requirement in allegations of rape but are
also expressive of the vision of the world such a court harbors. Let us avoid for the moment, the
sensationalistic conviction attributed by the court on the word of a plaintiff and ask, how it then
felt the need to corroborate it’s own judgment by enshrining a theory of ‘two worlds’ with
discrete identities which warrant ‘different’ solutions.

1 Supreme Court of India, Bharwada Bhoginbhai Hirjibhai vs State Of Gujarat on 24 May, 1983,
IndianKanoon, https://indiankanoon.org/doc/207774/, Sunday, 10:40 pm, October 16, 2016.

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The Unfortunate Empirical Reality

It is with some displeasure that I find myself in a position where it is necessary to point to what
the lived reality of the aftermath of such allegations may be, but in a world, where a Supreme
Court, in it’s august experience may naively blunder in supposing not merely the guilt of an
accused without corroborative evidence, but go as far as legally enshrining the fiction, that
women in India (as opposed to whatever may be meant by “The Indian setting”) are in some
essential way incapable of fabricating false allegations, it is but nigh impossible to avoid popping
some particularly smelly bubbles.

For example, a case study drawing on the data compiled by the Delhi Commission for Women in
their archive of rape cases in the capital between April 2013 and July 2014 reveals that of the
2,753 complaints of rape, only 1,287 were true, whereas the remaining 1,464 cases were found to
be fabrications.2 In other words, a majority of the allegations of rape in Delhi (53% to be exact),
in that 19 month duration, were false. To rub in the ludicracy of the situation, the Supreme Court
has again, as recently as 2010, stated that ‘Indian women won’t make false rape claim’3. At this
point it is safe to say that the gap between the Indian Judiciary’s apprehensions and lived reality
are bordering on the delusional, and it is perhaps time, that we remind our Supreme Court that
it’s jurisdiction extends beyond Tilak Nagar.

The Academism of Post-Colonial Debauchery

It is perhaps necessary at this point to contextualist how departments of Social Sciences and
Humanities tendentialy apprehend what is the touchy history of Colonialism in the sub-continent.
Following Edward Said, departmental logics are employed in a reproduction of the argument that
‘the West’, or ‘the Occident’ (whatever may be meant by the vagueness of such aggregates) have
sought to historically predicate their identity built upon a fundamental othering and exploitation
of the ‘Orient’. The investment in this line of reasoning is extensive as it’s body of work
stretches to roughly three generations of scholars; within Indian borders - the Subaltern Studies
Collective was initiated in the 1980’s. It is symptomatic of their practices that they would seek to
brush under the carpet, judgments such as Bharwada Bhoginbhai Hirjibhai vs State Of Gujarat
(1983), particularly in the light of the recent findings regarding what is actually the state of
affairs regarding allegations of rape.

2 Anonymous Correspondent,53.2% of the rape cases filed between April 2013 and July 2014
false: Delhi Commission for Women, http://www.dnaindia.com/india/report-53-rape-cases-filed-
between-april-2013-and-july-2013-false-delhi-commission-of-women-2023334, Retrieved on
Sunday, 10:45 pm, October 16th, 2016.
3 Janwalkar, Matura, Supreme Court: Indian Women won’t make false rape claim, http://
www.dnaindia.com/india/report-supreme-court-indian-women-won-t-make-false-rape-
claim-1329929, Retrieved on Sunday 10:47 pm, October 16th, 2016.

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What is however indefensible, is the predication of the supposed moral unimpeachability of the
Indian woman particularly on the grounds of the allegation of rape, not merely when empirical
evidence points to a systemic abuse of the position of the plaintiff but also the fabrication of such
an identity built upon an essential ‘othering’ of the western woman as everything from a gold
digger to a vengeful publicity hog (predicates which are only ripe for western soil as the ‘ecology
of India’, the country that gave us Rakhi Sawant and Mamta Banerjee, would supposedly blush
in the immodesty of the proposition that such motives may be a part of, rather than an exception
to the repertoire). It is from within such a context that I find it necessary to declare that the
politics which informs and guides the thrust of subaltern feminist critiques of the law,
particularly those which advocate the denial of the necessity for the corroboration of evidence
and bank on the pernicious species of literature known as Post-Colonialism reproduce myopias
which systematically degrade the standards of truth which are sought by academic institutions.
This misrecognition of the actuality of its reverse-racism is so deeply seeded that we find it
reproduced repeatedly in the highest courts of the land (1983, 2010) despite repeated evidence
which demonstrates the contrary.

Necessary Directives

What this situation calls for is a detailed historical investigation of the socio-legal changes which
have been taking place in the Indian judiciary between 1983 and now with particular reference to
litigation practices and the outcomes of cases which feature citizens accused of sexual violence/
harassment. This would necessarily need to include a comparative analyses of cases leading to
conditions as well as cases where the charges were found to be invalid.

What may supplement and enrich such an enquiry would be an anthropology of the judicial
thinking which has guided legislations so far removed from an emergent reality, and which
questions how this has been systemically suppressed within academic institutions whose
prerogative is to question socio-institutional mores in the pursuit of their truth.

What I would strongly suggest absolutely needs to be debunked however is the now historically
sterile notion that India is any longer actually coercively subject to Neo-Colonial or Imperial
power as even apart from its institutional enshrinement of it’s own genus of racist sexism, Indian
business has recently been investing in land in Africa for the production of cash crops4, often
indigo itself which was in the times of British Colonialism, the site of an actual struggle against
an imperial power. These changes will take a while to filter down into academic common sense
and it is to the discredit of our institutions as well as some of the people who head them that a
paper such as this needs to be written, the truth however can only be concealed for so long.

4 Rowden, Rick, India’s Role in the New Global Farm Land Grab, http://www.networkideas.org/
featart/aug2011/Rick_Rowden.pdf, Retrieved on Sunday 10:59 pm, October, 2016.

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Bibliography

- Supreme Court of India, Bharwada Bhoginbhai Hirjibhai vs State Of Gujarat on 24 May,

1983, IndianKanoon, https://indiankanoon.org/doc/207774/, Sunday, 10:40 pm, October 16,
2016.
- Anonymous Correspondent,53.2% of the rape cases filed between April 2013 and July 2014
false: Delhi Commission for Women, http://www.dnaindia.com/india/report-53-rape-cases-
filed-between-april-2013-and-july-2013-false-delhi-commission-of-women-2023334,
Retrieved on Sunday, 10:45 pm, October 16th, 2016.
- Janwalkar, Matura, Supreme Court: Indian Women won’t make false rape claim, http://
www.dnaindia.com/india/report-supreme-court-indian-women-won-t-make-false-rape-
claim-1329929, Retrieved on Sunday 10:47 pm, October 16th, 2016.
- Rowden, Rick, India’s Role in the New Global Farm Land Grab, http://
www.networkideas.org/featart/aug2011/Rick_Rowden.pdf, Retrieved on Sunday 10:59 pm,
October, 2016.