[Reader-list] A must read

[Mitra Waghmare]

Hi all,
          Here is a text from a friend author of mine--a text  you must know
all and even if you can't refute, you must read it.
Mitra



Dear Everybody,
              With Arushi Talwar and her
mate--servant's murder ( her illicit affair expert
father being the alleged culprit) as well as one
Grover's bloodied corpse in Mumbai besides which Maria
and her keen killer boyfriend ( Mathew) are reported
to have copulated twice, the question of sexual
morality and death thinking  has again sprung up. And
I think this is the time again to visit and pull in
the uncomfortable question of morality vis a vis
legality. I had sent this question and a bit unedited
draft of the paper below to some  in the wake of  the
event of the sad  rape and murder of Scarlet
Keeling,when the old debate about our moral character,
ambitious and risky life style had again cropped
up.I'm sending this now to all of you.

The majority view, as you know, argues that these
questions are irrelevant to the questions of
justice.And in 2002 an amendment reckoned with this
view.
   Long back in the year 2003 I had drafted a shorter
version of this article criticizing this amendment and
which was published in Bengali in 2003 and in English
in 2004.I'll never forget the nightmare I had had
while
publishing this argument. But again while this debate
reappears in 2008, I'm surprised to find many of my
friends,political parties ( a few representatives to
whom I've talked to), even some lawyers are willing to
buy this argument and a campaign for nullifying the
2002amendment which sought to exclude all inquiries
into the moral character of the persons involved, may
as well begin.But not before you document your
important views.
Friend,Please answer two questions, 1) Do you agree
with me( please go through the document below) that an
inquiry into moral questions, including the moral
character of the complainant and the defendant is
absolutely relevant in matters of (sexual) violence
including murder as a variation on the above theme?
2) If you do not, please tell me why not?



 'Law stands between politics and morality' – Jurgen

Habermas , Law and Morality, The Tanner Lectures on

Human values , Harvard university, Oct1,2, 1986





CHARACTER (ISING) RAPE, CONTEMPLATING AMENDMENT



What was noticeable in the  episode in which Anil

Biswas ( now deceased general secretary of the  CPI(M), West Bengal ) was
shouted at and condemned by nearly

everybody -  when he had reported ( in 2003) that there were

questions in the locality about the  'lifestyle' of an

alleged rape victim,  was the immense confidence with

which  the argument of  Biswas was put down. This

false  confidence derived from the Indian Evidence (

Amendment) Bill, 2002 becoming Indian Evidence

Amendment Act, 2003. The act  sought to amend the

Indian Evidence Act, 1872, and provided for deletion

of clause 4 of section 155 by specifically providing

in Section 146  that in a prosecution for rape or

attempt to commit rape, it will not be permissible to

'put questions in the cross examination of the

complainant as to her general immoral character'. In

Section 155(4) this could have been used  previously

to impeach the credit of  the complainant as a

witness. Before that there was the 177th report of the

Law Commission of India and the National Commission

for Women who had unanimously recommended the deletion

of Section 155(4) of the Indian Evidence Act. The

recommendations were pushed forward keeping in view

instances -  where people have been acquitted  because

of the immoral character of the complainant or the

latter were  harassed in cross examination.

              But this amendment was in a sense

redundant if we want to closely read   two other

Sections [151,152] of the  Indian Evidence Act (

I.E.A).  Section 151 states, 'The Court may forbid any

question or inquiries which it regards as indecent or

scandalous although such questions or inquiries may

have some bearing on the questions before the Court

unless they relate to fact in issue or to matters

necessary to be known in order to determine whether or

not the facts in issue …'; Section 152 states, ' The

Court shall forbid any question which appears to it to

be intended to insult or annoy, or which, though

proper in itself, appears to the Court needlessly

offensive in form'. The question is, despite this

immunity and the power of the trial judge to

intervene, the courts must have failed in their duties

to protect a rape complainant from being scandalized

while being questioned; through this amendment the

Indian legislature vis a- vis the Supreme Court

acknowledges this failure perhaps. No explanation has

been forwarded on this count from any quarters. In the

Rajya Sabha itself this question was raised by Shri S.

Shumugasundaram but he ended up having had to welcome

the Bill—such is the compulsion to be politically

correct.

This is a technical and nearly a fatal objection to

the amendment - from within the I.E.A. But the

amendment arguers and makers  have had

other serious sociological reasons too—which are

abundant in the media; abundant and cheap because any

critical argument against – is avoided or suppressed.

The reasons forwarded by  the protagonists are1) immoral

character has nothing to do with the fact that one is

violated or has perpetrated violence; 2) immorality

should be left alone so that we are able to respect a

persons' privacy; 3) morality of character is an

ethico-moral issue, not a legal one;

                      We shall address each of them.



1.READING CHARACTER IN THE I.E.A



We must first try to prove that the question of one's

character is vital for a case of rape or sexual

assault. Now-everybody knows  that a

poetess—Madhumita Shukla was murdered in U.P ( around 2002-03) and

a lot has been written on it, the minister had had to

resign and all that. But  her preeminently  dangerous lifestyle—a

disposition to sleep with the politicians and

criminals of Gorakhpur—does it have nothing to do with her own

death?  To hobnob with  Amarmani Tripathi—the infamous

minister who has had  nearly 38 cases against him for

murder, land grab  to rape—his moral character  has

nothing to do with Madhumita's death? It would be

scandalous to consider the  woman's death separate

from the kind of lifestyle she was used to; the kind

of action norms she had set for herself – the kind of

'character' that she was.  Would it have been

irrelevant if her or the ministers' character  had

featured in the trial considering she was raped- not

murdered? Not at all. And provided the woman had led a

sane life in accordance with acceptable moral

standards but still she was raped, then the character

of the alleged rapist would have featured in a vicious

way. This is missing in the I.E.A. Infact what was

actually wrong is the gender bias in the Section [

155(4) ] where the immoral character of the

complainant could be invoked by the defence lawyer to

impeach  only the complainants' witness; the witness

is understandably a woman here. The moment we make it

gender neutral we assume the bias is corrected. But

instead of giving it a corrective, the amendment

makers have done away with the whole thing. (Character

here   signify serial and  stable dispositions of an

individual over time, i.e our actions and behaviorial dispositions

by which we come to be known as reliable or a cheater,  romantic or

someone always with sexual intent etc.) And this

weighing of dispositions of individuals is what makes

everyday life going; you know  a guy to be 'good', you

decide to  go to a date and return being raped ( for

this read the ever growing literature on date rape);

you know somebody is of questionable 'morals'- so

decide not to go on a date or go at a time, at a place

where his morals will not get the go. Likewise, for

every person we just cannot afford to start from zero;

therefore when it is suggested that in a rape or in a

case of  sexual assault or simply violence which has sexual side brackets;

any question of character is uncalled for—the obvious thing that comes to
mind is,

are we products of our past actions? Do  our pasts

have a lot to do with our present or all  our actions

are  arbitrary and accidental and  there is no  logic

to be gained? The point is- claims on the past—even our

pasts -- can be contested but cannot be done without.

And that we everyday invoke and use these character

traits to guide us in our actions is absolutely

relevant. And because crime has this life as the

backdrop, 'situations' as well as 'characters',

'dispositions' as well as 'life style' have to be

taken into account ( and this briefly answers

the situational psychological objections

regarding behavioral inconsistency and the impossibility of character or
'character building' by teaching virtues: what I'm arguing for is coherence,
not consistency).

              What is actually wrong is the

gender bias in the Section where the immoral character

of the complainant could be invoked by the defence

lawyer to impeach her witness; the witness is

understandably a woman here. The moment we make it

gender neutral we assume the bias is corrected. The

immoral character clause should be applied on both the

complainant and the alleged perpetrator; for men --it

should be made more rigorously so—given the

patriarchial nature of our society and men like

Amarmani Tripathy.

The way it is happening now strategically-- is well

illustrated  by one www.onlinedetective.com which will

give you all information u regard necessary to date,

marry, have sex or start a business: here it is-

 "And how do you really know that the guy you've started

dating isn't actually a convicted wife-beater with

several restraining orders on him, or that the new

employee you're about to hire really has all the

qualifications she says that she does? What if your

new neighbor that's suddenly started playing with your

kids after school is actually a convicted child

molester? You need to know these things in order to

protect yourself, your family, and your business" ;

this is the 2003 version of their site.)

 If these are our inquiries in everyday life, it  is a

wonder that these are considered irrelevant in a

criminal case. The phrase 'protection' above  is signifying and deserves
close thinking.



 Here is an other  example with a legal niche:

 in  2003 again at West London an Indian businessman –

Amarjit Chouhan along with his family was murdered.

The UK  police  arrested two English men

– examining whose past records – the police had come

to the conclusion   that the two were ' violent' and

'dangerous'.  Now violent and dangerous  are apparently

morally negative characteriological  traits of a person, but in the eyes

of the Law -  they having surveyed the behavioral

history of the  individuals—are   historical decisions

with legal consequences  and not immediately  moral ones ( the use of
'history' in law is already a disputed territory). Here

character does not stand for popular evaluative common

sense conceptions of good-bad, right- wrong etc,

because no incentives are there for being a morally

better person ( his crimes will still be tried)

instead there is a sense that  immoral behaviour is

more a threat to society's security  than a moral one;

infact  there is a legal -blame worthiness in the

sense a repeated offence might ensure more stringent

punishment. If our recommendation to include the

character of the convict is accepted, in that case

reinvoking the case of Amarmani Tripathi, any past

conviction will also add a dimension  to this.  This is  clearly

explicated in I.E.A ( Section 54, Explanation 2) : 'A

previous conviction is relevant as evidence of bad

character'. This statement proves again that character

in the I.E.A does not derive from ordinary or mere moral  precepts as

the Law Commission et.al understand it but has special

techno-legal value.

Let us extend this  argument to the sphere of Indian politics :

wasn't this  the clause we are pressing through a bill

in a different form-for the knowledge of the pasts of

our political representatives to be delivered to the

people?—or else why are we concerned about their past

convictions?—even their moral history held in their

'clean' images—in short –their ' characters'? Because

we are invoking the moralization of politics ( that

politics should not violate  moral norms), - aren't

we? We are moved by the current  demoralization of

politics, but at the same time—it is peculiar  we are

about to argue in favour of the de-moralization of Law

 -that law and morality should be separate ( which is

in reality a rational illusion of modernity)—not

knowing that the demoralization of politics is only a

step further! To be more concrete—what has been

considered a relevant inquiry for a political

representative is irrelevant for an ordinary citizen?

This is awfully undemocratic and politically self

defeating.



2.IMMORAL CHARACTER, WHERE THEN?





      The model of this debate was set when a British

judge- Lord Devlin while responding to the report of the

Committee on homosexual Offenses and Prostitution argued,

 " without shared ideas on politics, morals, and ethics no society can

exist…..therefore with " recognized morality" being

present , legislation against immorality is

indispensable to prevent the disintegration of

society … Criminal Law exists

for the protection of society, not as the …Wolfenden

Report asserted, for the protection of the

individual."

 The Wolfenden report in turn had asserted

that " there must remain a realm of private morality

and immorality which is …not the law's business."

There is nothing wrong with private immorality;

immorality unless it harms others or else is public is

at par with the liberty of individuals. For example ,

I might be a homosexual -  while my community—legal

community in which I live, sees homosexuality as

immorality; if I 'm engaged in homosexual acts in

private—outside the purview of the public eye—perhaps

in the bedroom, the state will not intervene; but if I

pursue it as a particular kind of  lifestyle openly

and demand rights for the same the state needs to

intervene and negotiate. ( It is necessary to read the

references to character through reputation in the

I.E.A  by not separating it from its appropriate

contexts. It clearly states ( in Explanation-55) that

'in Section 52, 53, 54 and 55, the word ' character'

includes both reputation and disposition; but except

as provided in Section 54, evidence may be given of

only  a general reputation and general disposition and

not of particular acts by which reputation or

disposition was shown.') There are two or three

factors at stake here: while the Indian Evidence Act

speaks about bad reputation in general  --clearly

tells about reputation that hasn't grown out of

private immorality; if I've been  privately and

secretly immoral how do I come to have a

(dis)'reputation' and be known as immoral? Further,

reputation has nothing to do with (moral) sexual acts

only; one can earn ill repute just because s/he is

cruel to the animals or a swindler or a black money

maker. A girl when walks with a half bare bosom (

agreeably -a private part) or a boy exhibits something

from his private 'inventory'—it is said to be an event

of public immorality ( indecency) which violates group

or civic  morality; it is possible to go further and

argue that the girl or the boy outrages her/ his own

modesty when s/he does so. In this sense - that one

must be free to  lead any sort of life one wants to -

stands for all and nothing: a married woman/ man if

does not respect marriage as a moral contract and

justifies fornication by her/his  actions cannot be

accepted on grounds of her freedom or she being privately

immoral and therefore to be tolerated by all. It is on the

question of character at times -- that a suit of

divorce is successfully filed and won even by

submitting the burden of proof, and no way it can be

argued that if a wife files a suit of divorce because

her husband has been  adulterous, she should be taught

that law has nothing to do with morality and one can

be privately immoral and she should have  inquired

whether her hubby had taken enough caution to be

secretive. This is just ridiculous!

Secondly, that one's character is a private matter and

the Law should not interfere in matters private has

been disputed most by the feminists themselves. By

saying
' personal is political' ( though Ive extensively
written on how this collapses the personal and the private)
they took so called private matters for public legislation;
the issue of maritalrape was brought to light by their
incessant efforts.If they were to be satisfied with the immorality that

can be safely practiced in private, they would not

have called forth for legislation on the consensual

validity of conjugal copulation that obviously does

not take place in public.



3. CHARACTER—A MORAL QUESTION! REALLY?



          However, their substantive answer  to my objections

could be something like this: Law

looses it's legal character if it is lead by the

axioms of morality; it will see to the illegality of

the  event in question rather than the immorality of

the event. An immoral 'victim' and a perpetrator with

a sound moral history should be considered equals

before the eyes of the Law. Legality and morality are

two different things. Justice has to do only with

legality and not morality.

                                    Long back it was

Karl Marx who had told us most emphatically—how Law is

not just Law; it is out and out political. Again it is the works of one of
the

greatest philosophers of the 20th century—Jurgen

Habermas—which have reminded us that it is through the

political legislature - which is the law making

body—that morality and politics enter into law through the back

door perhaps,(remember the Shah Banu controversy); and

it is simply an illusion that law and morality, law

and politics, or law and society are internally

separate and separable. Further –if Law apart from

having to have  compulsory legal validity ( i.e it's

equally enforceable for all and  whose violation will entail

punishment) is to have normative or social

validity—that is--if it is to be seen as 'just' -  has

to negotiate - with the moral expectations of  a

population and seek consensus through argument. - or

otherwise as has been pointed out  how would Nazi laws, even
retrospectively,

be questioned? If  law is to justify itself in the

eyes of all affected and gain social validity apart

from legal validity, then the 'Law is Law' slogan  is

simply dangerous. The Nazi laws can be questioned only

on grounds of morality and politics.

And morality-- if not brought within the purview of

law will never get tested of it's own validity in

terms of human rights or  gender sensitivity.

Nivedita Menon reminds us, how

the Supreme Court in a landmark judgment decided to

overrule a tribal custom where rape had been  a

customary practice -  by saying that there cannot be

any customary practice which could override certain

basic human rights of individuals. Therefore various

moralities—belonging to the individual or  groups—will

never be tested if a rigorous demarcation is

maintained between law & morality. But these are all

arguments as to how law will mislead itself if it were

to avoid the question of character in a case of

sexual assault or a  rape trial—and through this

amendment—apparently-- it has taken that route;  what

remains to be known is the effect of this  amendment

on the citizen.



5. CONCLUSION

    Let us see the consequences of this argument for

the citizen- individual:.

 Once upon a time someone called Mendelville had

proposed the models of the bad citizen and the good

citizen. The model of the bad citizen entails – he

recognizes only legal obligations, so is always on the

lookout for a chance to violate it safely: the moment

he makes it sure that he will not be caught in the act

of breaking the law, he goes along. A good citizen

irrespective of the vigil of the law, being inspired

by moral obligations—does not violate prohibitions.

Therefore following this if you were to have only legal

obligations, you would not rape only when you're  sure you'll

be caught in the act of violation; the moment I can

make it sure otherwise,  I would be up with my talent.

But it is sure we don't rape not because we have a

legal obligation, but also because a moral obligation

not to do so. A binary distinction between legality

and morality will produce more people with legal

obligations only—and reinforce the model of the  bad

citizen--  and the consequence understandably is

dangerous.

 Therefore, such an amendment which seeks to delete

all questions regarding character or the moral history

of an individual, indirectly by its long hand,

discourages citizens to  adopt 'justified' moral

behaviour at all. Take the ( 2002 onwards)  drive  by the Kolkata

police to arrest men folk who 'annoy' and ' harass'

women standing by the roadside – waitng for buses,

through 'indecent' proposals. A lot of men were arrested

but lately the police were not so pleased to find that

a lot of women folk ( you know who they are) do invite clients that way and
for

them 'wise' women are being proposed and harassed from

no where. The moment the police started picking some
of those women too—there was protest from 'concerned'quarters
and the move was abandoned.However it is the case in which
the ordinary women themselves condemn the actions of some women for whom

they are being propositioned and harassed. Now, such an

amendment which seeks to delete all questions

regarding character or the moral history of an

individual, indirectly by its long hand, discourages

citizens to  adopt 'justified' moral behaviour at all.

The conclusion that can be  derived  is this: - the

woman who wears revealing clothes, tries to sleep her

way to the top—(no matter if it is  furthered by  criminals

and politicians) and gets assaulted, raped or murdered, and the woman who

does not do so and goes all along with community's

'positive' morality-- but still is harassed, assaulted

or raped --- the law  shall be doing grave injustice

to the latter woman -  if it places both of  them on

the same plane by not distinguishing between the

differing behavioral dispositions of the two

individuals. Then the second woman  in particular is

prone  to do this kind of a  reasoning, "well, if my

actions, dispositions, or reputation does not matter

and am placed equally with that (wo)man, why should I at

all lead a moral life in a   community?" Same with the men who are
(sexually) corrupt, cunning and yet successful. Virtuous men tend to loose
to the 'ways of the world'.

So our point is -  this amendment discredits those who tend to live

according to the 'justified' or justiciable moral

standards of their communities and civic life, and

discourages future moral behaviour from citizens

because they will understand that that won't be

recognized. "If my honesty is not credited at some

point of time—particularly in times of crisis, why

should I at all  be honest?"



While this is one aspect, millions of women who have

been forced for various external reasons to become-

for example –prostitute/sex sellers ( excluding the call girl and their
client syndrome who-- I argue elsewhere, should be summarily persecuted
under a moral regime);

would they be discriminated

against?  Here, the alleged rape of a prostitute

raises difficult questions and needs extensive

discussion and interpretation. If their character is

considered—which will be immoral according to certain

standards, then would raping them  be considered a

lesser crime? I can just attempt an answer here but begin by saying that for
us this is a false question. In terms of a moral-ethical ideal-argument,
prostitution is something  beyond any defense and asks for its outright
annihilation. But if this gives  a semblance to some that I'm avoiding
engagement with the question, then let me clarify that here we are pulled
into a blind alley : the morality test has to be neutralized  and, for
consolation's sake,  it is done in this manner.

    I've proposed a matrix where the character test would be

made gender neutral. And there is also a hint that

character would be understood to stand for an

inventory of stable dispositions of an individual over

time emptied of it's normative or moral judgmental

contents ( who might not be  absolutely consistent but coherent).

Following that – the question of immorality

would have a descriptive reckoning. But if we want to

retain the force of morality for possibility's or

simplicity's sake, then invoking that --consider where

the convict alleges that the complainant woman is a prostitute

and is therefore of established loose morals and is

 lying; they have had usual paid sex, there

was some brawl on the payment when the woman charged

extra money after sex and he had denied ( nowhere do

these people claim that raping the prostitutes has had

been their right -  as some wrongly contend). Now the

courtly  indictment for the other (male) side could

be- "well, that the woman is of loose morals is okay,

but how  do you having been of strict morals  visited

her for sex?"( With this we support the recent proposed ( as changes to the
PITA) arrest of customers visiting them.) When it becomes obvious that both
can be

constructed as immoral, the morality test is

neutralised and other considerations resume. But to start to

recognise the violation of the prostitutes, one cannot but

take into account their different life or living

style; their identity has to be established first : and this

falls well in line with our main  proposal and Anil

Biswas is again correct.



               Armed with this correctness – we could recommend – for

the time being-- the following --

1)         The amendment deleting section 155(4) should be

nullified by a newer amendment and stress should be

given on Section 151& 152  because they suffice to

restore discursive justice by confronting harassment

in the courtroom.

2)         Section 155(4) should be revised to entail inquiry into the

moral character/sexual history  of both the complainant and the alleged

perpetrator of the sexual assault and provided the

perpetrator is male -  the inquiry  should be made

more stringent and more rigorously applied. ( As

explicated before, character, situation, past and present

 lifestyle should be adequately linked and integrated into

the  identity of the complainant and the defendant.)

3)         In case of complainants with sexual identities like

the sex sellers—legal protection should be doubled and

rape in their case has to be theorized differently from

the general civilian women given the complex nature of

the formers' sexual consent which can be bought. There

is no proviso in Indian rape laws as to this double

bind. The rape of a sex seller – to understand it

differently—a beginning has  to be made but that again

has to account for her different 'way of life or

living -style': this has to be written into our legal discourse.



 ______________________