Departing from established practices, a Supreme Court Bench comprising of Justice T.S. Thakur and Justice A.K. Goel reportedly questioned in open Court, two women who had alleged sexual assault by persons acting at the behest of an industrialist and former MP.
The Bench questioned the two women about their antecedents before lawyers and media in the Courtroom. Questions such as why they took a lift from strangers prior to the incident were posed. They were also asked whether their parents knew about them being in Delhi.
The Court’s action was a result of the senior lawyer, Sidharth Luthra’s comment that investigation should not be order by the Court unless the antecedents of the women are ascertained. Mr. Luthra is representing one of the industrialists in the case. He also desired that the nature of their allegations and the source of funding should be ascertained by the Court.
Unconvinced by the responses rendered by the women, the Bench refused to intervene in the case, observing, “The judiciary is capable of doing it [granting protection]. After all, we are all part of society. But we are not interfering in the matter.”
The Bench suggested that Mr. M.L. Sharma, counsel for the two women, raise the issue before the High Court or even file a private complaint before a magistrate court. He was then allowed to withdraw the case.
Justice Thakur had earlier asked the counsel, “Who engaged you? What is your locus? Who is behind the whole case? If it is being filed for an oblique purpose, then who should be held responsible? You can’t make such wild allegations against an industrialist. Any probe will damage his reputation which is at stake.”
Section 327 (2) of the Criminal Procedure Code says that inquiry or trial in sexual harassment and rape cases “shall be conducted in camera” to protect the right to privacy of the victim. Hence, questioning the two women in the Court is clearly violative of the Cr.P.C.
Such a questioning also violated the victim’s right to privacy and right to fair trial, as recognised under Article 21 of the Constitution of India.
These provisions are in the nature of exception to the general rule of an open trial. The expression 'shall' casts a duty on the court to conduct trial of rape cases etc, invariably 'in camera'. Trial in camera would not only be in keeping with the self respect of the victim of the crime and in tune with the legislative intent but is also likely to improve the quality of evidence of a prosecutrix because she would be not so hesitant or bashful to depose frankly as she may in an open court under the gaze of public.
Hence, not adhering to such protocol would lead to a violation of basic human rights of the victims.