Can Judges Dispense Gender Justice While Expressing Views That Go Against It?

The persistent prevalence of patriarchal prejudices and misogyny appears to have been in full display when the Chief Justice of India asked the serial rapist of a minor girl whether he would marry her.

The man to whom this question was posed was facing charges of penetrative sexual assault under the Protection of Children from Sexual Offences Act, 2012 and rape, criminal intimidation under Sections 376, 417, 506 of the Indian Penal Code. He had been accused of clandestinely entering the house of the victim survivor, a distant relative, when she was alone, gagging and tying her hands and feet and raping her. The girl was studying in Class 9 then. He continued to rape her repeatedly, until she was in class 12, by intimidating and threatening to harm her and her family.

The victim has alleged that the accused used to follow her in his motorcycle carrying a petrol can and threatening to set her on fire. It was only when the girl tried to commit suicide that her family came to know about this horrific crime. When the uneducated mother of the victim, tried to register a police complaint, she was dissuaded from doing so by the mother of the accused and made to sign a stamped paper that the sexual relationship between the victim and the accused was consensual. The assaulter’s mother promised the mother of the victim that he would marry the victim when she attained majority. When the accused reneged on his promise of marriage, a complaint was filed under the POCSO Act.

The accused approached the Supreme Court after the Bombay high court quashed the bail order granted by an additional sessions judge. The high court had cancelled the bail on the ground that it was perverse, arbitrary and capricious and had castigated the sessions judge for not exercising discretion vested in him judiciously, observing that he utterly lacked competence.

It is against this backdrop that the report of the following exchange, which took place before the bench of the Supreme Court, comprising the CJI, Justices A.S. Bopanna and V. Ramasubramaniam must be viewed.

The CJI reportedly told the lawyer for the accused, “If you want to marry we can help you. If not, you lose your job and go to jail. You seduced the girl, raped her.”

The CJI also said, “You should have thought before seducing and raping the young girl. You knew you are a government servant.”

The accused responded, “Initially I wanted to marry her, but she refused. Now I cannot as I am already married.”

The Supreme Court then permitted the accused to withdraw his petition, but stayed the high court’s arrest order for four weeks to give him time to apply for regular bail.

Also read: From the Supreme Court, a Reminder that Justice Was Sacrificed to Save a Judge

Marriage – solace, punishment or redemption?

It is not clear whether CJI Bobde had assumed that the victim would find solace by marrying the man who had allegedly raped her repeatedly for years or whether he considered marriage a punishment more befitting than a prison sentence or was the accused being offered redemption through marriage. To a person who believes in constitutional and humane values of gender equality, the suggestion of a lifelong intimate, legally sanctified relationship with the man who has violated one’s bodily integrity is repugnant and morally abhorrent.

Did the CJI believe that the pain, trauma, humiliation and rage caused to the victim would vanish magically by marriage to the man responsible for it? The victim’s mother was desperate enough to accept the offer of marriage made by the offender’s mother and such desperation is a sad manifestation of patriarchal hegemony that uses antiquated notions of honour and shame to control a woman. The question of the girl’s consent did not arise as she was then a minor. To rely on such an acceptance would reiterate parental control over women and deny them autonomy.

Whose body is it anyway?

CJI Bobde makes it clear that he was not forcing the accused to marry the victim. Such solicitousness ought to have been shown to the victim, who going by media reports, appears to have been forgotten in this process.

It is strange that the bench should ask this of the accused even before attempting to ascertain the victim’s state of mind. If the accused had consented to a marriage with the victim, would the latter’s views and consent be sought? Did it not occur to the judges that a woman would be revolted with the very thought of a relationship with her assaulter and even more so, when that involves physical and emotional intimacy?

Applying minimum standards of sanity, would it not be safe to assume that a victim, if given a choice, would recoil with horror at the thought of an institutionalised relationship with her assaulter? Did the court actually believe that it was acting in the best interests of the affected woman and were there conflicting interests in the first place?

To put it in crude terms, “Your body has been violated and for your own good, I will ensure that he who forcibly and brutally touched your body without your consent will restore your dignity, undo the damage to your reputation through the offender’s gracious act of accepting you as his wife,” is what the court seems to indicate.

Also read: The SC Must Reaffirm Its Allegiance to Justice – and Victims of Sexual Harassment

Misplaced empathy

CJI Bobde is reported to have said, “If you want to marry, we can help you”.

This inexplicable, inexcusable and misplaced empathy to a sexual offender is bewildering. Were the judges unmindful of the long term impacts that sexual assault has on a victim’s physical, emotional and mental health? Is it the duty of the court to be concerned about the job and livelihood prospects of a repeat sexual offender while considering a sexual offender’s bail application?

POCSO Rules, 2020 stipulate that the victim is entitled to be kept away from the accused at all times, during the trial and otherwise. The fear of the victim in confronting the assaulter is real and cannot be trivialised. The high court appears to have understood this and taking note of the facts cancelled the bail. The Supreme Court has instead chosen to ignore the protective mechanism put in place by the law.

Conflation of seduction and rape unacceptable

“You seduced the girl, raped her,” says CJI Bobde. The complainant has not alleged seduction.

The offences mentioned in her complaint are penetrative sexual assault, rape and criminal intimidation. Seduction, in law, is the act of enticing a woman, without the use of physical force, to have sexual intercourse. Rape is a sexual assault using force, threat or intimidation. Judges are aware of this distinction.

The CJI’s use of rape and seduction reflects an unacceptable conflation of the two in his mind. The accused had raped a 9th standard student after gagging her and tying her hands and feet. By no stretch of imagination can this act be called seduction.  Every word uttered from the judicial pulpit carries weight with far-reaching repercussions and it is therefore expected of judges to be circumspect and cautious with the language they employ.

Marry-your-rapist jurisprudence not applicable

Unlike a few countries, Indian law, fortunately, does not permit compounding of rape and other sexual offences through marriage between the rapist and the victim.

The full bench of the Supreme Court in the case of Shimbhu & another vs State of Haryana [(2014) 13 SCC 318] has held that “rape is a non-compoundable offence and it is an offence against the society and is not  a matter to be left for the parties to compromise and settle”.

Also read: Gender Contouring of the Courts in India

In the case of State of M.P vs Madanlal [(2015) 7 SCC 681], the Supreme Court has held, “we would like to clearly state that in a case of rape or attempt to rape, the conception of compromise under no circumstances can really be thought of.”

The Supreme Court adds, “Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of sanctuary of error. We are compelled to say so as such an attitude reflects lack of sensibility towards the dignity, the elan vital, of a woman. Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility.”

Despite the legal prohibition and the unambiguous articulation of the law by the Supreme Court, in Madanlal’s case, it now appears that the court is veering towards the acceptance of compounding sexual offences.

When the highest constitutional court indicates that an offence of rape can be compounded or mitigated, contrary to the law, it sends a dangerous signal to all sexual offenders that marrying the victim would grant them amnesty. This normalisation and trivialisation of sexual offences will only embolden offenders, deter the filing of complaints, cause further victimisation of the survivor and lead to loss of confidence in the justice redressal system.

The Madras high court’s referral of a rape case, in 2015, for mediation drew flak from advocates and the judge had to recall the order.

Attorney General K.K. Venugopal, in a recent case filed by women lawyers challenging the order of the Madhya Pradesh high court granting bail to a sexual offender on the condition he ties a rakhi to the victim, stressed the need for gender sensitisation of judges and asked the Supreme Court to condemn such trivialisation of sexual offences by high courts. A survey conducted by Delhi based NGO, Sakshi in 1996 confirmed that there was pervasive gender bias and insensitivity in the judiciary. 25 years later, nothing appears to have changed.

Patriarchal control, paternalistic protection impede gender equality

Judges are not free from prejudices and biases that influence their approach to gender justice.  There have been disturbing judgments in the recent past that reveal the regressive, patriarchal mindset of judges even in constitutional courts. CJI Bobde’s comment on the participation of female farmers in the Delhi protests reflected a lack of understanding of the role of women in agriculture, their agency and strength.

Also read: SC Must Stop Courts From Asking for ‘Compromise Between Parties’ in Sexual Assault Cases

His remark, perhaps intended to alleviate their physical discomfort, came across as condescending and reeked of paternalistic notions of women being frail, incapable of exercising choice and in need of protection. His predecessor, Ranjan Gogoi’s query to Iltija Mufti, “Why do you want to move around? It is very cold in Srinagar,” when she sought permission to travel freely in Kashmir reinforces gender stereotypes of women as being weak and vulnerable.

Karnataka high court’s abominable statement in its order in the case of Rakesh.B vs State of Karnataka that it was unbecoming of an Indian woman to fall asleep after being “ravished” exposed the judge’s racist and misogynistic views.

A survivor of a sexual crime grapples with societal hostility, suspicion and disbelief and it takes tremendous courage to seek justice from a court of law. Convictions are few and the process is long, cumbersome and brutal. If the chief justice of the country believes that marriage is a mitigating factor for grant of bail to a sexual offender, what hope can a victim have that she will secure justice?

Need to reiterate Bangalore Principles of Judicial Conduct

The Bangalore Principles of Judicial Conduct, 2002 (adopted by the Judicial Group on Strengthening Judicial Integrity) which demand a rigorous standard of impartiality from judges states:

“2.1 A judge shall perform his or her judicial duties without favour, bias or prejudice.

2.2 A judge shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary.

2.4 A judge shall not knowingly, while a proceeding is before, or could come before, the judge, make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process. Nor shall the judge make any comment in public or otherwise that might affect the fair trial of any person or issue.”

The impact of even innocuous statements made by the higher judiciary cannot be underestimated. The ‘marry your rapist to secure bail’ approach of the highest court of the land may send out a conflicting signal to other courts that Madanlal’s order need not be strictly followed.

Also read: Even Judges Are Mortals When it Comes to Sexual Harassment at the Workplace

Thousands of gender equality proponents, outraged by the CJI’s statements, have written an open letter requesting the CJI to retract his statements and tender an apology to the women of the country and demanding that he steps down from his post.

The question that looms large is are judges capable of enforcing constitutional values of gender justice and equality when they hold and freely express views that hinder the discharge of that duty?

S. Devika is an advocate and member of the Forum for Judicial Accountability, Chennai.