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Women's day: Of Courts And Women

Radhika Roy
8 March 2021 6:38 AM GMT
Womens day: Of Courts And Women
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On 1st March, 2021, the Chief Justice of India SA Bobde asked a man accused of raping a minor in 2014 whether he would marry her. The shocking question uttered in the highest Court of the land led to a rightly ignited furore, with many even asking the Chief Justice to retract his words, issue an apology and step down from his position. What was even more deplorable is the scathing...

On 1st March, 2021, the Chief Justice of India SA Bobde asked a man accused of raping a minor in 2014 whether he would marry her. The shocking question uttered in the highest Court of the land led to a rightly ignited furore, with many even asking the Chief Justice to retract his words, issue an apology and step down from his position. What was even more deplorable is the scathing indictment by the Bar Council of India of the people who protested against the CJI's suggestion in a resolution which was not only factually inaccurate, but also legally incorrect. 

This question had been posed by the CJI in a case of repeated sexual exploitation of a minor girl at the hands of a distant relative. The accused had allegedly not only raped the girl, but had also stalked her prior to the rape, threatened her with acid, and continued raping her for years. It was only when the girl, after a failed attempt at suicide, was on the verge of filing an FIR with the aid of her mother, did the perpetrator's mother promise marriage in exchange for silence on the part of the survivor.

For the uninitiated, what may seem like an innocuous question, borne out of the factual matrix of the case, is in reality symptomatic of the deep-rooted misogyny that is prevalent in the echelons of the judiciary. This inherent conservative mindset is problematic as it not only ends up setting back any progress that has taken place over the years for the empowerment of women, but also sets as a bad precedent a recourse to a heinous crime against society in the form of a settlement.

TREND OF MISOGYNY IN JUDICIAL PRONOUNCEMENTS

The Chief Justice's suggestion is not novel and has definitely not arisen in a vacuum; it is in line with the trend of misogyny which is dominant in numerous judgments delivered by the Indian judiciary, right from the days of the infamous Mathura rape case.

In the aforementioned case, the Chandrapur Sessions Court had observed that the survivor was "habituated to sexual intercourse" and had failed the atrociously invasive "two-finger test" which was used to verify the virginity of a woman. The Supreme Court upheld the Session Court's judgement and went on to record that passive submission of a survivor amounted to consent and that onus was always on the prosecution to prove that rape had indeed taken place.

One may argue that this 1978 case cannot paint a holistic picture of how Indian society functions in this day and age, and that the Mathura rape case was merely an outlier. However, very recent judgements such as Karnataka High Court's observations on how a survivor should behave post rape and the Madhya Pradesh High Court's direction to a man, accused of molesting a woman, to get a rakhi tired by her, showcase that very little has changed in the last 40-odd years.

In the former judgement by the Karnataka High Court, Justice S. Krishna S. Dixit chastised the prosecutrix for consuming alcohol and sleeping after getting raped, thereby insinuating that Indian women must react differently when they are "ravished". In the latter order of the Madhya Pradesh High Court, the mere direction of tying a rakhi signified the dependency of a woman on her male family members for her protection and essentially trivialised the crime committed by the accused. Sexist stereotypes, such as a woman needing protection, becoming "damaged goods" if sexually active (whether consensually or non-consensually), inhabiting the honour of the family, are tenets which are constantly expressed in these judgements and perpetuate the understanding of a woman as the Other; anything lesser than the whole.

It is pertinent to note here that there have been instances where the Supreme Court has indeed come down heavily against the practice of suggesting any form of compromise between the survivor and the accused. In the 2013 case of Shimbhu & Anr. v State of Haryana, the Apex Court had remarked that rape was a heinous crime and a non-compoundable offence; a crime against society and human dignity, and that therefore, the "offer to marry" was not a relevant reason for exercising discretionary power under the proviso of Section 376(2) of the Indian Penal Code.

In a judgement delivered in the case of State of MP v. Madanlal in 2015, the Supreme Court had categorically advised judges against adopting a "soft approach" in cases of rape and had stated that suggestions of settlement or compromise were "thoroughly and completely legally impermissible". Despite the lack of legal backing and stringent observations in judgements, the fact that Judges subconsciously view rape as a deficiency in the survivor as well as a blow to her and her family's honour speaks volumes about the insidious nature of entrenched patriarchy.

However, even in the most seemingly progressive and positive judgements pertaining to gender justice, there exists a thread of portraying the woman as a virtuous, but hapless creature in need of a savior. A 2013 judgement in Deepak Gulati v. State of Haryana described how a "rapist degrades and defiles the soul of a helpless female", "leaves a permanent scar on the life of the victim", and how rape tantamounts to a "serious blow to the supreme honour of a woman" and "shakes the very core of her life". Employing such language in judicial pronouncements betrays the burden that is placed on a woman's honour by our society and, rather than furthering the cause of women empowerment, sanctifies for the future a Victorianesque interpretation of women whose virtue is placed on a pedestal.

WHY IS THIS AN ISSUE?

The "Marry Your Rapist" suggestion is emblematic of the premium that is placed on the honour of a woman by Indian society and how rape, or any sexual activity outside the confines of marriage, translates into a woman's supposed value being reduced in the marriage market. The accused takes advantage of this premium, with the help of the Courts, to escape conviction; a practice which is not envisaged by the Indian statutes and is advised against in judicial precedents.

This get-out-of-jail-free card stems from the gendered masculinity that runs in the judiciary wherein a woman's existence is reduced to her marriage prospects and her honour resides in her vagina. This viewing of a woman is troublesome because it automatically lowers in society's eyes the esteem of a woman who is sexually active and outspoken. Such a line of thinking also invariably sidelines a woman's ability to make her own choices or take her own decisions; a woman then merely becomes an entity who must remain chaste and demure, and any departure from such a state of being signifies the corruption of her character, and thereby negates the trauma that she has suffered, as was done in the Mathura rape case.

The patriarchal Judge tends to assume the responsibility of ensuring that the women is able to lead a life of comfort in the future, despite the "shame" that she has brought onto herself and her family, and ends up giving solutions that completely disregard the woman's personal autonomy and is insensitive to the torture that is then inevitably prolonged. Assuming this stance of being the protector of womankind and under the garb of "greater good" of the survivor, Judges end up rendering such misogynistic decisions.

These decisions not only send a message to society that a man abusing a woman is merely a slight aberration (or even a force of nature – boys will be boys!), but end up silencing women who dare to speak up against the violation of their bodily autonomy. It is even more appalling that such messages come from the halls of our Constitutional authorities; the very pillars that are meant to bring in reformative change and undo decades of injustice that has been inflicted as a result of gender inequality.


It is on the basis of the aforementioned bias that there still exists ambiguity around consent in sexual interactions and the hesitant approach of the Courts toward criminalizing marital rape. In 2012, the Justice Verma Committee Report had recommended for the exemption for marital rape to be done away with. However, the matter remains sub-judice and no Indian government has taken active interest in addressing the problem.

The unrecognition of marital rape as a crime juxtaposed with the offer for marriage by a rapist to the survivor in essence provides a license to the rapist to inflict violence upon the survivor again with impunity! The sole legal recourse that is available to a woman is then civil remedy provided under the Protection of Women from Domestic Violence Act, 2005. These remarks are even more startling as the recent National Family Health Survey (NFHS-4) reveals disturbing statistics on violence by a spouse amongst women in the age group of 15-49 years. An analysis of the survey indicates that an estimated 99.1% of sexual violence cases go unreported and that an average Indian woman is seventeen times more likely to face sexual violence at the hands of her husband than by others.

Therefore, while passing moral judgements on the character of the survivor becomes the norm, the same issue becomes an "internal matter" the moment the husband of the woman comes into the equation. This endorsement of blatant sexism clothed under the claim of betterment of women is harmful and in reality undoes the strides that have already been made in gender justice till date.

There is also a conspicuous absence of an acknowledgement of intersectionality present in such judgements. More often than not, the understanding of most individuals is limited to the bubble that they belong to, which unfortunately renders them incapable of adopting worldviews that are not normative to their own way of living. This hinders a more broad-minded adjudication and therefore, violates the principles of natural justice by excluding individuals who do not fall within the parameters of the Judge's lived experiences.


HOW CAN ONE TACKLE THIS?

Judgements, not exclusive to rape and sexual harassment, but also divorce, domestic abuse and even murder, are sprinkled with moral policing by the judiciary. For instance, in a 2012 divorce petition, a Division Bench of the Bombay High Court had stated that a wife should be like Goddess Sita and should follow her husband wherever he goes. These value judgements exhibit an urgent need for cleansing of the patriarchal mindset of the judiciary through the process of unlearning and gender sensitization. Otherwise the Judges become complicit in maintaining a status quo which consistently favours an upper-caste cisgender heterosexual man. This is also one of the reasons why representation in the judiciary must be broadened so that different viewpoints can be incorporated while considering a matter.

One must also realise that the language which is utilised in these value judgements fails to address the actual issues at hand, such as conceptualization of an adequate rehabilitation process, including counselling and compensation, for women who may not have support systems at hand. By denouncing the survivor as an individual who is beyond help, the Courts fail to put into place a structure that can benefit women in the long-run so that society at large does not have to subscribe to the notion that getting a "tainted woman" married is the best solution available to her, even if it means marrying her own rapist.

Further, language, which is law's most important instrument, must also be transformed while depicting cases concerning women and others who are marginalized. Instead of perpetuating stereotypical biases by comparing women to Goddesses and whatnot, Judges must consciously develop a way of writing that does not infantilize or degrade women. For instance, using the term "survivor" instead of "victim" in rape cases aids in mitigating the stigma that is attached to rape.

In a society which is increasingly conservative and believes in an authoritative interpretation of religious texts wherein women are meant to be submissive and receptible to subjugation, it falls upon our Courts to demand for the denouncement of systematic bias against women. While a few judgements, such as the Supreme Court directing for the grant of Permanent Commission to women officers in the Armed Forces and rejecting gender discrimination, and a 1965 judgement of the Allahabad High Court wherein Justice MH Beg expanded the ambit of "cruelty", have indeed furthered the feminist cause, there still exists a lag in the changes that can be moulded by the Court to speed up the process.

Rape laws in India, right from the days of the Mathura rape case, have been made more and more stringent over time, but always at the cost of a life. Once it was a Mathura, the other time it was a Jyoti Singh, thereafter an Unnao, alongside an astounding number of unnamed survivors. Such passing remarks by Judges, reflecting the mindset of Indian society at large, cause double victimization of the survivor. For once, let us start asking the survivor what she requires. At this juncture, one can only hope that the Courts will soon decide to shed their inherent biases and don the mantle to bring in positive change

Views are personal

Radhika Roy is an Associate Editor With LiveLaw .Harshita Singhal is a practising advocate.  The authors would like to thank Dr. Sujith Koonan, Assistant Professor, Faculty of Law, University of Delhi, for his inputs.

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