The Judiciary

Activists denounce 'patriarchal and regressive' statements by judicial institutions

Print edition : April 09, 2021

Justice S.A. Bobde, Chief Justice of India. His controversial remarks were in the form of oral observations while hearing a case. Photo: PTI

Brinda Karat of the CPI (M). In her open letter to the Chief Justice of India, she said the remarks made by the court were a setback to the course of gender justice. Photo: NAGARA GOPAL

Manan Kumar Mishra, chairman of the Bar Council of India. He launched a frontal attack on Brinda Karat alleging that her remarks were in contempt of the judiciary. Photo: Manvender Vashist

Activists denounce casual observations made by judicial institutions in cases of violence against women as patriarchal and regressive.

Like what the writer and philosopher Hannah Arendt termed as “banality of evil” in the context of Nazi leader Adolf Eichmann’s trial, violence against women in India threatens to slide into banality. More so when remarks on such crime made in passing by people in high offices become commonplace.

In an open letter that former Rajya Sabha member Brinda Karat wrote to Chief Justice of India S.A. Bobde on March 2, she shared her concerns about certain remarks the CJI reportedly made in two cases, one concerning a rape survivor and the other about a woman whose partner had ditched her after promising to marry her. The CJI’s observations were reported in legal news portals and subsequently picked up by several commentators.

In the case of the minor girl, the accused, Mohit Subhash Chavan, 23, a government servant, had allegedly committed the crime in 2014-15 when the girl was 16 years old. A distant relative, he stalked her when she was in class nine. She alleged that he threatened her with consequences if she disclosed the matter to anyone.

The girl filed a first information report (FIR) in 2019 under sections of the Indian Penal Code (IPC) for rape and other clauses under the Protection of Children from Sexual Offences (POCSO) Act, 2012. Earlier, when the girl threatened to file a complaint, the accused apparently made the victim’s mother, who is illiterate, sign on a stamp paper that the relations were consensual. The mother of the accused assured the victim of marriage.

A sessions court granted him bail, but the Aurangabad Bench of the Bombay High Court observed the order as “atrocious” and lacking in “sensitivity” and rejected it. The sessions court granted bail on the grounds that the girl appeared mature as she had stated that the accused used contraceptives. While denying bail, the High Court observed that sexual relations with a minor could not be termed consensual and a “height was committed” when the Additional Sessions Judge recorded that there was a possibility that the accused was falsely implicated. The accused challenged the High Court order in the Supreme Court wherein the allegedly controversial remarks were made.
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To be fair, the CJI’s remarks were in the form of oral observations when he reportedly asked the petitioner’s counsel whether the petitioner would marry the girl. Counsel’s plea was that as his client was a government servant he would be suspended from service if he was arrested.

According to the news portal Live Law, the CJI reportedly told counsel, “You should have thought before seducing and raping the young girl. You know you are a government servant…. We are not forcing you to marry… let us know if you will. Otherwise you will say we are forcing you to marry her.”

Counsel for the accused told the court that he was already married. The Supreme Court then rejected his pleas for anticipatory bail and asked him to apply for regular bail.

Question about rape

In the Supreme Court on the day that this case was heard, March 1, in another case a bench headed by the CJI made observations about whether non-consensual sexual intercourse between a couple could amount to rape. A woman had filed a rape charge against her former partner with whom she had a live-in relationship for two years. The bench granted the accused protection from arrest for eight weeks and, making an observation, asked whether the act of sexual intercourse between a couple who were living together as husband and wife could be called rape even if the man was brutal.

The observations appear innocuous to many. The problem is that they emanated from the highest echelons of the Indian justice system. Meanwhile, while adjudicating on another case, the CJI stated that his remarks were “misreported” and that he had the highest “respect for womanhood”.

Brinda Karat’s letter

In her letter to the CJI, Brinda Karat pointed out that the accused had sexually exploited the minor more than once. The girl, she wrote, had tried to commit suicide which showed absence of consent and had refused the suggestion of marriage. She said a message should not go out that rapists could offer marriage to their victims and escape arrest.

Brind Karat’s letter contained no ad hominem criticism of the CJI but urged him to withdraw those remarks as they were a setback to the course of gender justice. It said the power and the strength of the courts should be used to “help victims of sexual assault and not perpetrators”, more so where the victims were minors.

Bar Council’s response

The Bar Council of India (BCI), however, launched a frontal attack on Brinda Karat alleging that her remarks were in contempt of the judiciary and in the pursuit of gaining “cheap popularity”. In a letter, Manan Kumar Mishra, BCI chairman, said that a new trend had developed whereby people reacted to comments and observations made by Supreme Court judges even when such comments were not part of judicial orders. A handful of politicians and some so-called activists were “feeling elevated” by criticising and making reckless comments against judges through social and print media, it said. Such attempts, the BCI said, were a “direct attack on the independence of the judiciary” and added that it had “become a fashion for some motivated people to make personal aspersions against our judges”. It warned that if allowed to do so, the institution would lose its sanctity. “Immediate measures” had to be taken to stop the “malicious attacks” through the media, it said. Freedom of speech, stated the BCI, “cannot be stretched to the extent of maligning and weakening the institution”.
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Meanwhile, several others responded as Brinda Karat did. Responding to it, the BCI chairman said that “the signature move by a few hundreds of persons was meaningless and worthless”. According to him, comments made by judges and which were not part of judgments had no “legal sanctity” and were no basis to attack the judiciary. He urged Brinda Karat to be acquainted with the “facts” of the case whereby, he said, the accused and the victim were roughly the same age and the girl was 16 years and not a minor under the law that existed at that time and she was “very much able to give consent which she gave…”. The written agreement between the two parties, the letter stated, was broken when the victim’s mother refused to marry her daughter to the accused.

“If the judge has put a query regarding the marriage of both parties, what is wrong in it?” asked the BCI chairman in his letter. He stated that the Supreme Court had ultimately denied anticipatory bail and asked the accused to apply for regular bail when it became known that he had married someone else. The net result of the case was being “deliberately concealed” by “motivated persons with a specific agenda”, he said.

The BCI letter said in conclusion that laws meant for the protection of women were being “misused flagrantly”. Innocent people, the BCI chairman wrote, were being harassed, put behind bars and it was a matter of serious concern the way some mediapersons were conducting a “malicious campaign” in public. He cited a 2014 ruling by the Supreme Court (Vinod Kumar vs State of Kerala) regarding the application of Section 375 IPC (rape) and its observations on how consensual acts were converted as incidents of rape.

AIDWA’s statement

The All India Democratic Women’s Association (AIDWA) and others, including lawyers’ organisations, reacted strongly to the BCI chairman’s letter. In a joint statement, 11 women’s groups stated that the independence of the judiciary would be strengthened if it considered comments by women who were fighting for gender justice. Comments made by the highest judicial authority in the country could influence not only the judiciary but the public at large and give a fillip to retrograde elements in society that sexual assault, verbal or physical, can be minimised in this manner, they argued.

In a statement, the All India Lawyers’ Union (AILU) said that the BCI’s press release was unwarranted and objectionable. The AILU stated that Brinda Karat’s letter was only in good faith and without any malice and that she had not made any personal imputation against the CJI. The AILU also pointed out that comments made by judges during hearing of cases, though not part of the order, were not always innocuous or inert.

The AILU stated: “Such comments are reported without any restraint and it is available in public domain influencing and impacting upon public opinion. Naturally it would give signals to the subordinate judiciary with great impact of far-reaching consequences. Hence comments/oral observations by the judges cannot be immune from criticism.”

‘Regressive Thinking’

Kirti Singh, advocate and former member of the Law Commission of India, told Frontline that it was regressive and patriarchal to think that a person who had raped a woman should marry her.

She said: “How can a woman who has been subjected to violence and trauma be asked to marry the same person who has subjected her to that? It doesn’t matter that in our society there are a large number of people who think that when a rape occurs the honour of a girl gets affected and the only way to salvage the stigma is to ask the rapist to marry her. This is regressive thinking and does not put the rape survivor at the centre and of her perspective of what the rape means to her. In this case, she had been raped ten to twelve times and threatened with acid attacks and told not to tell anyone. She had even tried to commit suicide. This was a case of brutal force.The girl, as reported, refused to marry the man. It did not appear as a consensual relationship between a 16-year-old and her boyfriend. It was reported that for two years her mother did not report the case as she had entered into an agreement. Such agreements do not have any standing in law. There is a trend in our lower courts when they try to settle the matter they ask the man to marry the girl. It is often because of such regressive thinking that some victims are forced to agree. ”
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On the CJI’s comment whether marital rape could be considered an offence, she said the struggle for recognising marital rape as rape had been going on since 1993 when AIDWA campaigned for its inclusion in the rape laws.

Said Kirti Singh: “The day a woman gets married she doesn’t hand over a carte blanche to her husband to be treated whichever way he likes. Women are not chattel to be treated as property. Marital rape has been criminalised in many democracies, but in India it is not so. The exception to Section 375 should go. Violence within marriage is in any case recognised within Section 498A of the IPC which punishes cruelty within marriage, both for dowry and mental or physical violence. As for the Bar Council, their resolution shows they are extremely patriarchal and regressive in their views on women. The BCI does not represent the views of the Bar in general. For instance, they did not consult the Delhi High Court Women Lawyers Forum. Many women lawyers have been critical of these observations. No one made a criticism of the reported remarks of the CJI because of any personal motivation. The remarks were made in the context of how it might affect women generally and how it might set a wrong precedent. A former judge of the Supreme Court also said that the remarks were gender insensitive.”

However, such observations, even if they were not part of judgments, are frequently made by members of the judiciary. In the case of the 1978 custodial rape of Mathura, it was observed that the victim was “habituated to sexual intercourse” and had failed the “two finger test”. In the Bhanwari Devi case, involving the gang rape of a saathin in Rajasthan in 1992 and which led to the formulation of the Supreme Court guidelines to prevent sexual harassment at the workplace, a lower court had acquitted the accused on the grounds that upper caste men were not capable of raping a lower caste woman.

Following huge protests, wide-ranging changes to the rape laws came about subsequently, including the removal of the two-finger test in 2013 as a criterion for ascertaining rape. There have been instances where women have been told to tie a “rakhi” on a perpetrator or where the character of the victim has been commented upon.

Crime against women

On March 15, the Parliamentary Standing Committee on Home Affairs, in its report “Atrocities and Crimes against Women and Children”, that there had been a spurt in domestic violence and trafficking of children owing to the disruption in economic activity following the pandemic. The reported crimes against women rose by 7.3 per cent in 2019 compared with the previous year. The report noted that crimes were not getting registered, leading to a delay in and denial of justice. The conviction rate for crimes against women and children were low, at 23.7 per cent.
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Of the 1,023 fast-track special courts to dispose of POCSO and rape cases, only 597 were functional. Cases registered under POCSO had risen from 31,668 in 2017 to 46,005 in 2019. Women represented only 10.3 per cent of the total police force, the report says. Added to this was the low disbursal of the Nirbhaya Fund, aimed at financing schemes for the safety and security of women, from the Centre to States, and the under-utilisation of the funds by State governments themselves.

With the scales tilted against women in terms of increasing violence in myriad forms, the expectation that the judiciary would be sensitive to these concerns is not an unrealistic one. The statistics of violence can very well become an exercise in banality if seemingly innocuous patriarchal biases are allowed to pass without healthy criticism.

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