The temptation by judges to attach moral homilies when adjudicating on rape cases goes back all the way to the 1974 Mathura judgment of a sessions court which noted that the teenage tribal girl raped inside a police station in Gadchiroli had been “habituated to intercourse” and so could not have been raped. The case landed at the doors of the Supreme Court which agreed that the absence of injuries and her failure to raise an alarm meant she hadn’t been raped.

Over half a century later, judges still look for physical injuries as evidence. In March this year, a two-judge Supreme Court bench reiterated that a “lack of injury to private parts” cannot be grounds to discard a rape victim’s testimony if her statement is trustworthy and inspires confidence.

In law, concepts of morality inform such sections as “outraging the modesty of a woman” and finds a place in the new Bharatiya Nyaya Sanhita that was brought in to excise colonial and outdated laws.

In 2023, the Calcutta high court acquitted a 25-year-old man of the rape of a 14-year-old minor girl of rape under Pocso (Protection of Children from Sexual Offences) Act. The girl told the court she was in love with the man and had eloped, married him and even had a daughter with him in 2021. Acquitting the man of rape, the high court then went on to deliver a sermon about adolescent sexuality and peer pressure and advised girls in particular to not give in to the temptations of “two-minutes of pleasure”. Quite apart from the fact that judges are not expected to preach, noted advocate Madhavi Divan in a written submission as amicus curie, the advice smacked of double standards and went against the grain of Constitutional rights to dignity, privacy and equality. The Supreme Court frowned on the moralising and also overturned the man’s acquittal since under Pocso the fact of the romantic relationship was irrelevant.

Rape adjudication is littered with such instances. One judge finds a rape victim’s “no” to be too feeble for her rapist to understand her lack of consent. Another is suspicious of the cheerful demeanour of a woman complainant after her alleged rape. There are comments on a 30-year-old’s “provocative” dress who makes a complaint about a “reputable” 74-year-old man and there is a great deal of tut-tutting over the “adventurism” of a law student blackmailed into rape by her fellow students. This is nothing but evidence of a blatantly sexist view of women.

The National Family Health Survey in 2018 found that 99.1% of all sexual violence goes unreported. Even if you exclude marital violence, only 15% of sexual violence committed by others is reported.

There could be many reasons for this under-reporting. But we cannot let lack of faith in the justice system be one of them. Judgments that stray into victim-blaming and a judge’s personal morality lessons cannot inspire confidence in women.

Namita Bhandare writes on gender. The views expressed are personal