Narrating Legal Reform: The Open Letter and the Anti-rape Movement in Perspective

Introduction

The 1970s is seen as a significant period in the history of the Indian women’s movement. It saw several autonomous women’s groups and complex affiliations take shape as well as a new political language of protest emerge (Patel, 1988, p. 249). The open letter ¹ (hereafter referred to as ‘letter’), dated 16 September 1979, written as a response to the Supreme Court’s judgment ² in the Mathura rape case marks a crucial moment in this history, especially in the context of the women’s movement’s engagement with sexual violence (Baxi et al., 1979, pp. 19–23).

The letter, penned and signed by four scholars of the law—Upendra Baxi, Lotika Sarkar, Raghunath Kelkar and Vasudha Dhagamwar—remains first and foremost a political intervention, not just because it questioned the deeply patriarchal reasoning of the Supreme Court in its judgment, but also because it placed the debate on rape squarely within ‘the rhetoric of violation of human rights’ (Gangoly, 2007, p. 82). It made connections and comparisons with other cases and political currents of that time, and laid bare the machinations of caste, class, communalism and naked state impunity that were to inform the debates around rape for years to come.

In this article, I attempt to reconstruct, by looking at multiple sources, a narrative of social mobilisation and legal reform set in motion by the letter. I do not intend to present a hagiographic account of any individual’s role, nor do I claim to lay bare an entire history of the anti-rape movement in all its complexities. This article examines the letter in its ‘interconnectedness’ with other processes of the period, both parallel and emergent from it. In a sense, it is an act of story-telling, an attempt to acknowledge the importance of narrative explanations to ‘our struggles of meaning-making, to the ways in which we frame our circumstances, connect events, trends, challenges and relate parts to the whole’ (Sreekumar, 2017, p. 49).

To recreate this narrative, I rely on two primary sources. First, several interviews—telephonic, in-person and over e-mail—that I have conducted over a period of time with various social activists, participants and historians of this period. Second, I have looked at archival newspaper articles and commentaries from that period which give granular insights into the various processes set off by the letter. I have used the legal search engines manupatra.com and scconline.com for most of my legal research.

Prehistory of the Open Letter

The recital of facts in the Supreme Court’s judgment reveals that Mathura, a 14–16 years old tribal girl, was in a relationship with one Ashok, the cousin of her employer Nushi in Desaiganj, Maharashtra. Her brother was opposed to the relationship and on 26 March 1972, he lodged a complaint in the Desaigunj police station against Nushi and Ashok for ‘kidnapping’ Mathura. On the same night, they were all brought to the police station and their statements were recorded. When they had all left the station, head constable Tukaram and constable Ganpat took Mathura back to the station and allegedly raped her. This led to a police complaint and investigation against the accused policemen.

Following the investigation, the case was heard by Sessions Judge S.M. Daud, in Chandrapur’s district court. Around this time, Seema Sakhare, a teacher and a social activist, used to run a column in a local daily, Dainik Lokmat, writing on issues of sexual violence, patriarchy and social control. When she learnt about Mathura’s case from another reporter, she started attending the trial and followed the case with growing interest and vexation. ³

On 1 June 1974, nearly two years after Mathura was raped, the accused policemen were acquitted by the Sessions Judge. Mathura was called a ‘shocking liar’, and her testimony was disbelieved by the court. When the case came in appeal before the Nagpur bench of the Bombay high court, the Additional Law Secretary in Nagpur advised Seema Sakhare to become a party to the appeal. She appeared before the bench of Justice Bhaskar Masodkar and explained her interest in the case and her larger commitment to fight sexual violence. Though the high court did not permit her to implead herself in the appeal, she was permitted to observe the hearings. On 12 October 1976, the high court reversed the trial court’s hearings, and convicted Ganpat and Tukaram, sentencing them to rigorous imprisonment for five years and one year respectively. ⁴ The high court reasoned that since the accused were perfect strangers to Mathura, it was highly unlikely that ‘she would make any overtures or invite the accused to satisfy her sexual desires’. The high court acknowledged Mathura’s powerlessness in the police station, and therefore her inability to resist the advances of the appellants.

The Supreme Court Judgment and the Open Letter

On 15 September 1978, a three-judge bench of the Supreme Court acquitted Ganpat and Tukaram on charges of raping Mathura. ⁵ The reasoning of the Supreme Court, pilloried at length in the open letter, was based mainly upon the lack of evidence, medical or otherwise, to show that Mathura resisted the rape. For the Supreme Court, this marked it as an act of passive submission, not an act suffering from lack of consent as defined under Section 375 ⁶ of the Indian Penal Code, as it was then.

In 1979, Upendra Baxi and Lotika Sarkar were both professors of law in the Faculty of Law, University of Delhi, and Sarkar was already a veteran teacher of law in the faculty by then. Having joined in 1952 from Cambridge, she had a history of friction with the establishment. She was once asked not to teach criminal law to a mixed class of men and women as the syllabus included the law on rape (Pearson, 1999, p. 657). She was the popularly appointed ‘ombudsperson’ of the faculty, and had a disregard for authority, especially of the patriarchal kind (Baxi, 2014, p. 3). Upendra Baxi was relatively new to the faculty, having joined six years earlier after a teaching spell at the University of Sydney.

When the Mathura judgment was delivered by the Supreme Court, it received no immediate attention from the national media or legal commentators. It was only sometime in 1979 that Upendra Baxi, while reading a volume of Supreme Court Cases, chanced upon the judgment. Affronted by its perversity, he tried to work out a suitable response to it. After considering and discarding the options of writing a newspaper article or a law review piece, he decided upon writing an open letter to the Chief Justice of India. ⁷ He drafted the outraged missive and shared it with Lotika Sarkar. Though initially a little apprehensive about the form of articulating protest, she soon joined hands with Baxi. The next person to be approached was Vasudha Dhagamwar, who taught law in the University of Pune at that time. She immediately agreed to be a co-signatory to the letter. At this point, the three signatories felt the need to include someone thoroughly acquainted with criminal and evidentiary law. Raghunath Kelkar, Lotika’s colleague at the Faculty of Law, was someone whose judgment was trusted immensely, and Lotika in particular wanted him to be a signatory. ⁸ He proved to be difficult to convince, and warned the others of the likelihood of incurring contempt proceedings from the Supreme Court. It took considerable persuasion from Lotika Sarkar to convince him to finally join in, and in the end, his friendship with her played a big part in influencing his decision to join the others in signing the letter. ⁹

At first, there was no unanimity amongst the four signatories about the specific remedy to be sought in the letter. Raghunath Kelkar wanted to ask for both a review and reversal of the judgment. After considerable debate, he agreed with the rest that the letter could not be used to punish the accused, once acquitted. It was finally decided that the letter would ask the court to ‘realize the error of its ways, and overturn the principle of the ruling’ (Baxi, 2014, p. 9) through a larger bench, or even through a Full Court.

The letter, in its final form, did not seek a review ¹⁰ of the decision. It also, however, did not make clear that it was only seeking the principle of the decision to be overturned and not the legal effect of it on the appellants. It instead asked ‘to have the case reheard, as an unusual situation, by a larger bench, and if necessary by even the Full Court’. On 16 September 1979, the open letter was sent to the Chief Justice of India, Y. V. Chandrachud.

Once the letter had been sent off, the challenge was to get it into the public domain through the media and by word of mouth. The editors of most newspapers were not interested in publishing the letter since the letter itself was not ‘news’; the rape itself had occurred seven years ago. Also, there prevailed, what Baxi calls, a ‘folklore of contempt’; an almost paralysing fear in the public psyche against criticizing the Supreme Court (Baxi, 2014, p. 9). Curiously, it was not any national publication that first reported the letter; it was first reported and published by the Dawn in Karachi, a few months after it was written. ¹¹

The climate of silence was to soon give way, with two significant events shaping the path for it to enter public discourse. The first was when Manubhai Shah, the founder of the Consumer Education and Research Centre in Ahmedabad, effected a meeting between Upendra Baxi and CharubenYoddha of Jyoti Sangh, ¹² an Ahmedabad-based women’s organisation, one of the first of its kind in India (Baxi, 2014, p. 10 ). Through her good offices, Baxi addressed a gathering of women workers on the Mathura case and the open letter. The case got some regional attention and reportage in the press. The second event was when Chief Justice Chandrachud informally acknowledged the letter, while addressing the inaugural ceremony of Progress—a journal of the United Lawyers Association, a left-leaning association of lawyers. At the ceremony, he expressed surprise on finding that the journal did not carry the letter. This was a crucial moment, as it was the first time that the judiciary was acknowledging the letter, albeit informally. It meant that the legal community could ignore it no longer. It also presaged the women’s movement picking up the letter as a rallying point in the coming months (Baxi, 2014, p. 10).

The Expansion of the Movement

Soon after the Chief Justice’s public acknowledgement, the Mahila Dakshata Samiti, ¹³ a women’s rights organisation in Delhi, asked for a copy of the letter from the signatories. ¹⁴ Other organisations started realising the significance of the letter as well. Soon there were meetings being held, protests being planned and alliances being formed in various parts of the country. A large part of the movement was playing out in the cities of Ahmedabad, Nagpur, Bombay and Delhi. The wave of protests that gripped the nation over the next few months remains a foundational moment in the history of the women’s movement in India.

In Bombay, two women’s rights activists, Meera Savara and Manju Upadhyay, circulated an invitation to discuss a plan of action to mobilise women on the issue of rape, responding to the open letter. In response to the invitation, a meeting was held on 12 January 1980, and the Forum Against Rape (FAR) was formed. The FAR was an autonomous alliance of several women activists, including those in unorganised leftist politics as well as Gandhians. Two years later, the forum renamed itself as the Forum Against Oppression of Women (FAOW) as it broadened the focus of its interventions from rape and sexual assault to incorporate other experiences of oppression. ¹⁵

In Nagpur, there were around 70 Mahila Mandals, headed by Sughanda Bai Shinde. Seema Sakhare took up the task of mobilising and galvanising the Mahila Mandals to protest against the Supreme Court’s judgment. On 8 March 1980, which was the International Women’s Day, hundreds of women marched in Nagpur, protesting against the Mathura judgment. The judgment became a rallying point, and soon, other cases and aspects of sexual violence and oppression were being discussed and protested. The need to form an alliance against rape was felt, and another FAR ¹⁶ was formed. A makeshift office was set up in Sughanda Bai’s hostel in Nagpur, and the forum started functioning throughout Maharashtra on issues of sexual violence against women. ¹⁷

In Delhi, on 8 March 1980, more than a hundred women protested by marching with placards from Shivaji Park to Gandhi Maidan. Among their demands were a judicial review of the Mathura case, abolition of the practice of locking-up women in the absence of women police and the right of civil society organisations to prosecute on behalf of women victims. ¹⁸ On 17 March, Chief Justice Chandrachud met a delegation of 14 women, led by veteran activist and freedom fighter Aruna Asaf Ali and three members of Parliament and advised them to file a review petition in the Mathura case. The meeting happened after around 200 women held a three-hour-long demonstration outside the Supreme Court. ¹⁹ This was remarkable—the Chief Justice of India responding to the pressure of the women’s groups and meeting them in a conciliatory gesture was perhaps unprecedented in the court’s history.

On 27 March 1980, Chief Justice Chandrachud and Justice Krishna Iyer presided over a seminar organised by the Indian Federation of Women Lawyers (IFWL) and the Indian Housewives Association on the ‘Definition of Rape’. ²⁰ At the seminar, the Chief Justice expressed his view in favour of shifting the burden of proof to the accused in cases of custodial rape, a view that was shared by the various women’s groups protesting all over the country. Earlier, on 5 March, in a seminar on sexual offences, Justice Tulzapurkar suggested that ‘rape should be punished with flogging’. ²¹ He also suggested shifting the burden of proof on to the accused in all cases of rape, a stand that Lotika Sarkar was opposed to on principle. ²²

The judiciary was not the only site of mobilisation, as the movement found voice within the Parliament as well. On 17 March 1980, 10 members of the FAR (Bombay), led by Lata Mani, and three members of Parliament—Susheela Gopalan, Pramila Dandavate and Geeta Mukherjee—presented a petition to the Speaker of the Lok Sabha, demanding that the Mathura case be reopened. The petition pointed out that the Mathura case was not an isolated case, and that there were numerous instances of rape by the police all over the country. They made several recommendations, including setting up of special courts for dealing with rape, trials in camera, shifting of the burden of proof in cases of custodial rape, providing for laws against publishing a victim’s name and clarifying that ‘consent given on fear of death or hurt, or under undue influence or coercion is no consent’. On 29 March, Susheela Gopalan of the CPI (M) suggested that a statutory commission be set up to look into rape, as merely passing laws would not be enough. ²³

The Review Petitions

As reported on 17 March 1980, Urmila Kapoor, counsel for the All-India Women’s Conference (AIWC), had filed a review petition and requested that it be placed before and heard by a bench including the Chief Justice, as Justice Jaswant Singh, one of the three judges who decided the Mathura case, had by then retired. ²⁴ This was strategically an important call, as the Chief Justice was informally making encouraging gestures out of court.

On 27 March, M. N. Shroff filed a review petition on behalf of the Maharashtra government, arguing that the judgment had not appreciated the difference between ‘consent’ and ‘passive submission’. ²⁵ Earlier, on 22 March, the Supreme Court had ordered the Maharashtra government’s review petition to be filed and listed along with the review petition filed by Lily Thomas on behalf of the Delhi branch of the IFWL. ²⁶

Eventually, all the review petitions, including those filed by the National Federation of Indian Women (NFIW), the AIWC and the Maharashtra government, came to be listed on 28 March before a bench of Chief Justice Chandrachud, and Justices Untwalia and Venkataramiah. ²⁷ Contrary to expectations, the Chief Justice refused to list the matter before himself and directed it to be heard on 2 April by a bench that would include Justices Koshal and Kailasam, the two remaining judges of the original bench.

On 2 April 1980, in a fractious hearing, a three-judge bench of Justices Kailasam, Koshal and Untwalia expressed indignation at the protests, calling them attempts to ‘cow down the court’ and declared that the women’s organisations had no standing in the matter. They declared that the review petition would be decided only in their chambers and not after a hearing in open court, and only the Maharashtra government counsel would be allowed to file written arguments. ²⁸ Kapila Hingorani argued for the women’s organisations—the bench, however, did not take kindly to her arguments for the women’s organisations’ standing in the matter. As reported, the judges reacted angrily and left the courtroom for their chambers without hearing her out. ²⁹ This caused some disturbance and protests among the women’s groups as well as some senior lawyers who were perturbed by the high-handedness of the judges. On 8 April, senior advocate R. K. Garg asked the president of the Supreme Court Bar Association L. M. Singhvi to convene a general body meeting to discuss the manner in which Justice Untwalia had treated Kapila Hingorani. ³⁰ The NFIW wrote a letter to Mr Singhvi as well, condemning the shabby treatment of the lawyer by the judges.

On the 7 April 1980, Y. S. Chitale and M. N. Shroff filed written arguments on behalf of the Maharashtra government, arguing that the ‘the Court should not have been influenced by the medical evidence showing that Mathura was used to sexual intercourse’. The presence of old ruptures in the hymen could not be taken as evidence to prove consent. ³¹ On 14 April 1980, the Supreme Court dismissed ³² the review petitions filed by the various women’s organisations for lack of locus or connection with the case. ³³

Critical Responses to the Open Letter

The open letter movement created in its wake its share of detractors. The judges of the Supreme Court were used to being treated like the ‘Hindu Pantheon, a formidable array of gods whom it is good to propitiate and risky to offend’ (Chitta Ranjan, 1980, p. 3). The climate of discontent created a deep anxiety amongst lawyers and academics on preserving the sanctity of the Supreme Court (Baxi, 2014, p. 18). It was reported that some senior advocates felt perturbed that the Chief Justice listed the review petition before himself on 28 March, a day after he presided over the seminar organised by the IFWL and made comments on custodial rape. ³⁴

One of the earliest formal critiques of the letter itself came in the form of a short piece published in the Supreme Court Cases journal by the academic P. S. Atchuthen Pillai, a well-known scholar of criminal law. Pillai (1980) doubled down on the Supreme Court’s reasoning and argued that the fact that the incident took place in a police station at night, and the accused were policemen, would still not convert passive submission into ‘consent given under fear of death or hurt’. He also took issue with the letter’s invocation of certain Supreme Court judgments on civil liberties ³⁵ ; arguing that to ‘rely on the observations in these Constitutional Law cases to criticise adversely the judgments in criminal cases where the life and liberty of individuals is concerned, in the name of downtrodden, illiterate village women etc. is not well considered factual criticism’ (Pillai, 1980, p. 24). Another piece critical of the letter, published by Supreme Court Cases, was written by one R. Ramamoorthy (1981). Among other things, Ramamoorthy cryptically warned that the letter was objectionable and could amount to contempt.

Perhaps the most significant critique of the letter and the movement came in the form of a short piece ³⁶ in the Sunday edition of the Hindustan Times, written by the then legal correspondent, Krishan Mahajan, a former student of Lotika Sarkar’s. He took issue with the authors for focusing only on the Supreme Court’s judgment and not examining the trial court record. Having examined it himself, he proceeded to point out several critical lapses in the prosecution’s case. ³⁷ He also criticised the authors as well as the broader movement for not reaching out to Mathura herself. This prompted Upendra Baxi to seek the assistance of Dada Chitaley of the All-India Reporter at Nagpur to send a law reporter to Chandrapur to check on Mathura. As it turned out, she was living with her husband, unperturbed by the national churning. ³⁸

From within the women’s movement, the authors of the letter had to face questions on two of their stands. First, their determination not to seek a reversal of the acquittal of the policemen by means of a review would cause some friction between them and members of the groups that wanted the Supreme Court to review the case. Lotika Sarkar, in particular, had to engage in some quiet diplomacy with prominent members of the women’s movement who were seeking review of the judgment (Baxi, 2014, p. 9). This revealed a crucial tension in the heart of the movement. For the signatories, it was an article of faith to not let the rights of accused persons be affected by public opinion and mobilisations.

Second, as Vina Mazumdar (1999) narrates, Lotika Sarkar had to face questions for seeking reversal of burden of proof in only cases of custodial rape and not all cases of rape. For Lotika, the political memory of state excesses during the Emergency was still fresh. Such a demand ran the risk of handing over too much power to the state that could then be used to stifle political dissent through mala fide trials.

Processes of Legal Reform

Much of the public mobilisations by the women’s groups were focused on demanding both a reversal of the Supreme Court’s judgment through review, as well as specific amendments to the law. The Supreme Court’s inability to meet the demands of the movement through rectifying its decision meant that the focus of the movement shifted to Parliament and the demands for amending the law through legislation grew. Recent experiences from across the nation had highlighted the need for lobbying and advocacy to get the law to recognize custodial sexual violence as an institutionalised evil, requiring special means of redressal. ³⁹

The ‘Memorandum concerning the law of rape’ (Baxi et al., 1980a), drafted by three of the signatories of the letter—Lotika Sarkar, Upendra Baxi and Raghunath Kelkar—was a key step in this direction (hereafter referred to as the ‘memorandum’). Formally drafted on 1 May 1980, the memorandum defined custodial violence as including ‘every act of violence against women occurring in public places at the hands of public servants’. ‘Public places’ was defined very broadly to include places not typically understood as public places, when rape was perpetrated by a public servant. This idea of custodial violence understood power as not just emanating from the site of the violence, but also from the nature of control and dominance that a public servant like a policeman could wield over a woman in that situation. For Lotika, it remained critical to emphasise that there was no ‘justification for differentiating between a rape by the police in the police station and a rape by the police elsewhere’ (Sarkar, 1994, p. 78).

The memorandum proposed introducing a definition for custodial rape and called for a presumption of lack of consent in all such cases. Procedurally, it proposed that magistrates be given broader powers to investigate cases of custodial violence against women to prevent any manipulation or fabrication by the police. It also suggested the creation of an institution of ‘Public Defenders for Women’, a legal aid mechanism to assist victims of sexual violence, both within the court and outside.

There were two suggestions in the memorandum on the question of publicity and public censure. The first was to make reporting, publishing or revealing the name of the victim a punishable offence. Second, the memorandum suggested that a person convicted of custodial rape be subjected to ‘public censure’. This would be done by causing the offender’s name, residence and other personal details to be published in newspapers, along with the particulars of the offence. Both suggestions acknowledged the power that the media and public discourse wielded in cases of sexual violence. The second suggestion sought to wield this power of public opprobrium as a force of deterrence. The Law Commission in its 84th report quite rightly opposed the second suggestion, emphasizing the preference of rehabilitation over deterrence in modern penological thought. ⁴⁰

After the memorandum was written, it had still to be disseminated, especially amongst lawmakers. Unlike the open letter, which was written in relative anonymity and came to life on its own terms, the memorandum required active lobbying and persuasion. The memorandum was submitted to the Home Minister, Minister for Law and Justice, several members of Parliament and other groups working on law reform. Lotika Sarkar and Upendra Baxi divided the parliamentarians to be approached on linguistic lines, with Lotika meeting the Bengali ones and Baxi, the Gujarati and Hindi speaking ones (Baxi, 2014, p. 11).

The earliest and most militant critique of the memorandum incidentally came from Vasudha Dhagamwar, who had distanced herself from its drafting. In an article published in the journal Mainstream, she argued that the twin demands for reviewing the judgment and changing the law were far from adequate. She proposed a programme for civil society actors to document all rape cases. That would require activists to ‘investigate rape cases, talk to the raped woman, their well-wishers, neighbours, the police, even the rapist if he can be located, and publish such interviews’ (Dhagamwar, 1980, p. 30). She contended that the proposed reversal of the burden of proof in cases of custodial rape was not enough, and any act of intercourse inside a police station should perforce be seen as rape, the question of consent being irrelevant. ⁴¹

Simultaneously, the Law Commission was holding multiple meetings and consultations with various women’s group. ⁴² This process culminated in its 84th report, published on 25 April 1980. The report, echoing several of the demands made by the women’s groups, went one step further than the memorandum and recommended introducing Section 111A of the Evidence Act, shifting the burden of proof to the accused in all cases of rape, aggravated or otherwise.

The Road to Legislation

On 12 August 1980, a draft Criminal Law Amendment Bill was introduced in the Lok Sabha. This was the first major amendment proposed to the law of rape since the Indian Penal Code was legislated in 1860. ⁴³ It proposed introducing Section 376(2) to deal with custodial rape as an aggravated form of rape, and Section 111A in the Evidence Act, placing the burden of proof on the accused in all such cases of custodial rape. It introduced, for the first time, the language of mandatory minimum sentences in rape jurisprudence, a demand which did not figure either in the memorandum or in the Law Commission report. It provided for introducing Section 228A, which made it a blanket offence to publish or reveal the name or identity of a rape victim, or ‘any matter which may make known the identity’ of such victim under any circumstances, going well beyond the proposals made by the memorandum and the Law Commission. ⁴⁴ The draft bill made no mention of legal aid and support services, an area of concern highlighted in the memorandum.

The authors of the memorandum, not happy with the proposed changes in the draft law, responded with a critique titled ‘Notes on the Reform of Law for Rape and Allied Offences’ (Baxi et al., 1980b), in November 1980 (referred to hereafter as ‘critique’). ⁵⁶ They were particularly critical of the proposed Section 228A of the Penal Code that would place an embargo on all rape-related discussions. Their recommendations were confined to criminalising the reporting, publishing or revealing of the name of the victim, but the draft law proposed to broaden the scope of the offence to not just the name, but ‘any matter which may make known the identity’ of such victim. They opposed such a blanket interdiction on publicity in rape trials, fearing that such a provision would perforce criminalise all public discussions and protests relating to a rape case, preventing mass mobilisations like the one in the wake of the letter. Lotika Sarkar pointed out the irony of this proposal while being examined by the Joint Parliamentary Committee in November 1980, where she remarked that ‘if publication is not allowed, cases like Mathura would not have come to light at all’ (Joint Committee Record of Evidence, 1982, p. 539).

The critique also attacked the draft bill for the introduction of ‘mandatory minimum punishment for every type of rape’, including a sentence of seven years for non-aggravated rape. This, it argued, was unnecessary and counterproductive, as it could lead to unwarranted acquittals to save the accused from a disproportionate punishment. Counterintuitively, it endorsed the minimum of ten years for aggravated forms of rape, keeping in mind the ‘prevailing atmosphere where the menace of rape is on the increase’. ⁴⁵

After the draft bill was introduced in August 1980, a Joint Parliamentary Committee was set up comprising representatives of both houses of Parliament. The committee, headed by D. K. Naikar of the Congress Party, consisted of 23 Lok Sabha and 11 Rajya Sabha MPs. Over a period of almost four months, the Committee examined 107 different organisations and entities as witnesses. On 2 November 1981, Lotika Sarkar, Upendra Baxi and Raghunath Kelkar, representing the Faculty of Law at Delhi University, deposed before the committee. The minutes of the committee reveal an instructive exchange between the three scholars and the committee members on several questions, including the concept of power rape and its limits, the burden of proof in such cases, the institution of public defenders, mandatory minimum sentencing for aggravated rape and blanket bans on discussing rape cases (Joint Committee Record of Evidence, 1982, pp. 528–541). After 44 sittings, the committee submitted its draft bill and report before the Parliament on 2 November 1982.

On 18 and 21 November and 1 December 1983, the Lok Sabha debated the report of the Joint Parliamentary Committee. ⁴⁶ The Criminal Law Amendment Act was finally passed in December 1983, making it the first major amendment of the rape laws since the Indian Penal Code was created in 1860. The most significant change it formally introduced was the statutory recognition of custodial rape as a form of aggravated rape and the concomitant reversal of evidentiary burden. The newly introduced Section 376(2) recognised new categories of offenders in custodial situations—police officials, public servants, the management or staff of any jail, remand home, custodial establishment and hospitals. Rape was no longer a purely sexual offence. The amended section recognised the imbalance of power implicit in custodial contexts, aggravating the structural inequities prevalent in a patriarchal society. This was to be legacy of the anti-rape movement that was sparked by the open letter, starting from 1979.

While expanding the definition to introduce elements beyond the purely sexual in the offence of rape, the amended law somewhat counterintuitively changed the subheading of the chapter from ‘Rape’ to ‘Sexual Offences’. Lotika Sarkar was critical of this; she argued that this would amount to stripping the offence of the violence and power element implicit in it, and would only serve to strengthen the rule that lack of consent on the part of the woman has to be proved beyond reasonable doubt by her (Sarkar, 1994, p. 70).

Contextualising the Open Letter

The open letter movement unfolded a new vocabulary in talking about sexual violence and oppression against women. It introduced, for the first time, new legal categories and definitions in the law. It also saw the emergence of several autonomous women’s groups and affiliations throughout the nation. However, the letter was not an isolated spark plug in an ahistorical vacuum. It espoused a certain political understanding and critique which was a function of its time and context.

Uma Chakravarti ⁴⁷ emphasises that the open letter movement cannot be understood without looking at the Rameeza Bee case, ⁴⁸ to which the movement owes a lot. The Rameeza case had many parallels with the Mathura case. In both cases, the official discourse on rape was centred on delegitimising the victim by questioning her morality and by consolidating the notion of the ‘immoral community’ (Kannabiran & Kannabiran, 2002, p. 183). Mathura was the promiscuous tribal and Rameeza, the Muslim prostitute. Both trials were exercises in standardisation of women’s social histories by reserving the privilege of judicial remedy only to the ‘chaste’ woman, a notion that derives from a Savarna Hindu ideology. ⁴⁹

The history of the Mathura case is also intertwined with the history of the Emergency. To understand the movement, it is necessary to look at the impact that the Emergency had on various mass movements in the 1970s. Before the emergence of the autonomous women’s groups in the anti-rape movement, the politics of feminist mobilisation was led by women active in the national and local left-wing trade union movement. The women’s wings of leftist political parties such as the NFIW (CPI), Janwadi Mahila Samiti (CPI (M)) and the Socialist Party were the prime movers of movements like the Anti-Price Rise Movement in Maharashtra. The early 1970s saw several mass movements all over India, led by women’s organisations that were essentially of and for the working class. ⁵⁰ However, these movements could not survive the repression unleashed by the state during the Emergency (Gangoly, 2007, pp. 17–19). Post the Emergency, civil rights groups became active again, and in that political climate, their focus was on state repression—specifically custodial violence by the police. This was especially pronounced in Andhra Pradesh, where civil rights groups pressurised the government to set up an independent commission to investigate custodial killings. ⁵¹ The political memory of violent state excesses was still fresh, and the democratic rights groups in Andhra Pradesh, like the Andhra Pradesh Civil Liberties Committee in 1978, got involved with the Rameeza Bee case in an unprecedented manner. ⁵² This led to the forming of the Muktadar Committee, which indicted the policemen of custodial rape and murder (Prasad, 1978, pp. 1497–1499). ⁵³ Around this time, democratic rights organisations were bringing to light cases of mass rape in different parts of the country, such as Goa, Agra, Pantnagar, Singhbhum, Bhojpur and Karimnagar (Patel, 1988, p. 251).

The political climate within which the anti-rape mobilisations took shape was influenced by left-democratic movements, and the discourses emerging from such movements distinctly shaped the dominant understanding within the anti-rape struggle. ⁵⁴ Class oppression was built centrally into this perspective. Custodial rape became the central metaphor for the women’s movement in India in this period, and the state and its custodial institutions became the most immediate manifestations of patriarchal power. The police station became the discursive site where the violence was being played out, and the courts were where it would be perpetuated.

Geetanjali Gangoly contends that this experience of oppression did not resonate with the politics of the newly emerging women’s groups in the metropolitan cities, composed of urban, middle-class women, who could not form solidarities with the victims of rape in the same way as they did with victims of domestic violence and dowry, seen as cutting across lines of class, caste and religion in their victimhood (Gangoly, 2007, p. 101). The failure of the women’s movement in this context, Uma Chakravarti ⁵⁵ argues, lay first in its inability to conceptualise custody in any form other than the preserve of state institutions, ⁵⁶ and second, in its inability to trace the continuum between the sexual violence in the custody of the state and the violence within the custody of the family. This is reflected in the conspicuous absence of demands for criminalising marital rape in the movement and the debates within the movement which defined custody in terms of state institutions alone. This is also reflected in the Parliament’s failure to legislate ‘power rape’ as a category extending the definition of custody to private contractual relationships. A motion moved in the Lok Sabha by Geeta Mukherjee to include ‘landlords, officials, management personnel, contractors, employers and moneylenders’ as categories of relationships under power rape, failed to pass muster in the Parliament ⁵⁷ (Baxi, 2014, p. 34).

The Afterlife of the Mathura Case

The open letter movement set in motion a new grammar of ‘speaking truth to power’, in matters of sexual violence, gender discrimination and governance. Addressing institutions of power directly through open letters, making specific demands and mobilising against them became more frequent forms of political engagement for the women’s movement.

Lotika Sarkar was at the centre of several institutional interventions over the years. In 1989, she wrote a critique of the Law Commission and its failure to address legal reform for women, because of both its all-male constitution and its lack of functional autonomy. ⁵⁸ She was also invited to be a member of the Law Commission, but she turned down the offer because she was told that she could not pursue the Agra Protective Home case ⁵⁹ in the Supreme Court. ⁶⁰

In 1989, when the Supreme Court delivered a judgment ⁶¹ reducing the mandatory minimum sentence of two constables convicted of rape because the survivor did not report the rape for five days, several activists and women’s organisations, including the Centre for Women’s Development Studies (CWDS), AIDWA, Kali for Women and the NFIW, launched an agitation and called upon Prime Minister V. P. Singh, demanding sensitising of judicial and legislative perspectives towards women. ⁶² On 19 December 1990, leaders of various women’s organisations, ⁶³ including Lotika Sarkar and Vina Mazumdar on behalf of CWDS, sent an open letter to the Prime Minister, protesting the government’s decision to replace Rama Devi, a highly qualified and diligent bureaucrat, as the Chief Election Commissioner (CEC). Rama Devi had been appointed as the CEC after the previous CEC Peri Shastri’s health started failing him. She was the first woman to hold this high constitutional office. ⁶⁴

Prabha Kotiswaran points out that the 1979 anti-rape movement also marked the beginning of a substantial transformation in the relationship between the feminist movement and the state, with feminist ideas beginning to ‘find a foothold within the state through institutions of “state feminism”’. ⁶⁵ The language of addressing issues of gender inequality shifted predominantly to criminal law reform. There was also a marked shift in the feminist movement from a position of deep mistrust towards state power, characteristic of the post-Emergency years, towards one of greater engagement with it (Kotiswaran, 2017, p. 79).

The juridical afterlife of the Mathura case presents a rather different picture. An examination of the shadow of precedent cast by the Mathura judgment shows that it directly and indirectly continues to influence judicial decisions till date, either in its articulation of consent or in the broader principles of criminal jurisprudence that it lays down. The judgment has not been overruled or even criticised by a larger bench of the Supreme Court. Sakhrani (2016) argues that the reasoning of the judgment is still good in law, despite the various amendments. A search on the legal search engine Manupatra reveals that the judgment has been directly cited 18 times by various high courts and once in 2012 by the Supreme Court, ⁶⁶ to acquit accused persons accused of rape.

Conclusion

To understand the full extent of the impact that the open letter movement had, it is important not to see the movement as an isolated response to one flawed judicial decision, but to frame it in its own history and context. By looking at the available literature, archival material and oral histories documented in interviews, this article narrates the history of issue-based legal reform, in an attempt to understand it in its complexity and richness. This article examines the movement in its interconnectedness with other processes of the period, both prior to it, parallel to it and emerging from it, from the grassroots to the highest citadels of the state.

Through this narration, I have tried to show that the history of the open letter movement is tied intricately to the history of the Emergency, and the responses of the left democratic and autonomous women’s organisations to the repression unleashed in its wake. The conditions for the movement to flourish were, in a sense, already in place, and it is in that context that the catalytic power of the open letter needs to be understood.

This article also tries to map the various strategies deployed by the movement leading up to the dismissal of the review petitions in the Supreme Court. This was a particularly important moment, as the movement, on the one hand, found support and sympathy from individual judges, but at the same time faced significant institutional pushback from the court in its judicial capacity as well as from legal commentators of the time. This moment revealed the Supreme Court as an institution incapable of responding to the demands of the women’s movement at that time and compelled the movement to focus its energies on the Parliament as the appropriate institution to bring about legal reform. The parliamentary process was where the women’s movement found a patient consultative hearing, in a way that was denied to it in the Supreme Court. This was to deeply influence the way the women’s movement engaged with the law in the years to come.

I have striven to show that the Mathura case and the open letter movement left a profound impact on the women’s movement’s engagement with the law in at least three ways. First, it fundamentally changed the way rape is understood in law. By recognising custodial rape as a category in law, its definition was broadened to mean something more than a purely sexual offence. The law now recognises, albeit to a limited extent, the structural imbalance of power that is encoded into rape, specifically in a custodial context. Second, it brought about a marked increase in the movement’s engagement and involvement in state institutions, and shifted its focus to criminal law reform to address gender inequities. Third, the movement exposed biases embedded deep in the judicial consciousness, typified in the judgment’s understanding (or lack thereof) of custodial power, defining passive submission as consent and placing the moral burden on the victim. In the later years, the judiciary was to become increasingly a key site of feminist advocacy, reform and research.

Finally, this article has attempted to show that the open letter movement was, apart from being a product of its times, also a result of a certain politics of ethics and responsibility, to which the authors of the letter, as scholars of the law and as organic intellectuals of the university, were committed. Lotika Sarkar, too, espoused this politics throughout her life and work, playing a pioneering role in the women’s movement and staying committed to her belief in the core ideals of social justice in the Constitution.