Upholding of misogynistic and patriarchal notions by the judiciary in cases of crimes against women further entrenches outdated practices and views, emboldens the attacker, and discourages the victim from coming forward, writes RITWIK DESWAL.
The judiciary’s role has been conventionally defined as the interpretation and application of laws and the adjudication of disputes between the citizen and the State whenever the need arises. However, ‘judicial activism’ has broadened the judiciary’s role, with courts progressively using their powers with the broader aim of becoming a force for change.
The societal impact of judicial decrees has been steadily increasing with intersectional connotations across inter alia race, gender, caste, sexual orientation and economic status.
The same force which can bring about positive changes can also be used to reinforce stereotypes, dangerous practices and social conduct ultimately harmful to citizens and their rights, the state and the Constitution. This is especially reflected in patriarchal ideas of gender, combined with traditional and cultural practices that are commonplace in courts and their decrees.
Ranging from slightly narrow-minded to morbidly absurd, these have become an indelible part of our jurisprudence. Even more, unfortunately, these notions and stereotypes seem to flagrantly rear their ugly head in cases of rape and sexual assault.
A pattern of legal dissonance
A deep undercurrent of misogyny and sexism exists in several judgements of our courts—from the lowest level to the Supreme Court. A court’s conduct often reflects these sentiments.
Importantly, this is in disharmony with the spirit of our laws protecting women. The problematic behaviour of courts is highly prevalent in cases of crimes against women.
Judges are often prone to compare the victim’s experience of rape or sexual assault with their pigeon-holed theories of an ‘ideal victim’. For example, in the case of Sri Rakesh B vs. State of Karnataka last year, the accused was granted bail by the Karnataka High Court amid the Judge’s remark on how the victim falling asleep after the alleged rape was “unbecoming of an Indian woman”.
Similar judgements with unnecessary observations on the ‘promiscuity’ and morality of a victim, her social habits—whether she drinks/smokes—and her general demeanour have been made in cases of rape or sexual assault. This represents a deeper problem of a particular Judge’s mindset or a preconceived outlook on decrees often at the cost of the victim and her rights.
Also read: Judiciary’s response to rape cases suffers from colonial hangover
It is more harmful when these notions are combined with social customs and norms to form a remedy in certain orders or decrees. An infamous example was a decision of the Madhya Pradesh High Court last year wherein the Judge asked the accused molester to tie Rakhi as a condition for bail.
It must be noted that the ‘Rakhi defence’ has no basis whatsoever in our laws. Although, the order was set aside later by the Supreme Court, it was not the only instance of such makeshift and illegal remedies.
Also read: Judges need gender sensitisation, says AG on MP High Court’s ‘tying rakhi order’ in bail matter
In fact, a similar situation arose when former Chief Justice of India (CJI) SA Bobde asked an accused rapist whether he would “marry the victim” posing it as a stipulation for extending the court’s “help” to him. Again, this ‘solution’ was solely offered by CJI Bobde and is not part of our jurisprudence.
This ‘marriage compromise’ can also be found in the judgements of other courts. In a country which follows the doctrine of stare decisis and judicial precedent, such observations and judgements can have significant impact in shaping the conduct and rationale of lower courts. The judiciary breaking its mandate in support of regressive and patriarchal ideas is an apt example of activism for the worse.
The demeanour of a court in certain special cases also fuels this pattern of incongruity and blatant disregard of the foundational principles of laws against the victim/complainant. The accusation of sexual misconduct against ex-CJI Ranjan Gogoi remains a stark reminder.
After the accusation surfaced against CJI Gogoi, what followed can only be described as a series of questionable reactions—including the setting up of a Judicial Bench headed by CJI Gogoi himself to discuss the accusation under the ostensible purview of “maintaining the independence of the judiciary”. This was done in gross violation of the principles of natural justice. Moreover, he notably undermined the character of the victim in these hearings.
A separate in-house panel without CJI Gogoi set up to check the veracity of the complainant’s accusation concluded that they had “no substance”. The victim took exception to the conduct of the panel as she found it insensitive and intimidating. She refused to participate further in the panel’s inquiry.
Numerous suggestions regarding the second Bench’s composition, conduct and decree made by fellow Judges, jurists, advocates and activists were also ignored.
Also read: Supreme Court Women Lawyers Association calls for increasing gender diversity in Indian Judiciary in letter to Chief Justice of India
This case culminates in the convergence between makeshift legal procedures and problematic preconceived notions formed through patriarchal norms and beliefs. The creation of such legal abominations to suit personal belief systems is a very dreadful precedent to set. These abominations are acting as enablers for misconduct and illegal overtures through the hierarchy of our judicial system.
Clearly, such conduct of courts and Judges is also bound to have a larger impact on society beyond the confines of a courtroom.
From ivory towers to the grassroots
Such conduct by the judiciary further entrenches the outdated practices and views in our patriarchal society, leading to serious repercussions.
The ‘marriage solution’ for rape or assault victims is highly prevalent in society. Societal pressure, backed by the institutions of the State, often forces a victim to marry her attacker, legitimising the perpetrator’s crime in society and essentially allowing him to escape punishment. The judiciary is not always an effective countermeasure for such illegalities.
Such cases are especially noticeable in rural areas, where a certain degree of adjudicating powers rests with the Panchayats and its head sarpanch though cases of rape and other sexual assaults are outside their jurisdiction. But emboldened by the compliance of the concerned authorities, the Panchayats adjudicate on such matters. They can also be easily inspired by the judgements of higher courts which concur with their ‘solutions’. Nothing prevents them from using such orders as an adequate reason for their bizarre compromises.
The force of stringent laws is feeble against the will of an agreeable society backed by judicial mandate. Moreover, since marital rape is not an offence, as repeated by our courts time and again, the victim-abuser relationship does not end by tying the knot.
Also read: Stringent Penalties and Capital Punishment Fail to Deter Crimes Against Women
An example from a village barely 40 km from my home is relevant. A man was accused of raping and impregnating a minor, punishable under the stringent Protection of Children from Sexual Offences Act, 2012. However, the village community pushed hard for a marriage between the perpetrator and the victim.
Thankfully, common sense prevailed and a police case was registered. The perpetrator is now in jail.
The constant feedback loop of ‘sensational’ court conduct will also perpetuate a sense of acceptability regarding such notions. Future abusers will find kinship among it whereas their victims will become even more wary of coming forward. Sociologically, it will have an impact on the victim’s family system, which will be dissuaded in supporting her.
Concurrently, the abuser’s family will be encouraged to propose informal and illegal solutions as a way to bury the crime. Moreover, an already patriarchal society will find support for its worst ideas in some of these misogynistic judicial orders.
If the end result is inadequate solutions and public shaming, the victim will not be inclined to pursue a legal recourse. Considering the authorities are substantially compliant, this will make access to justice all the more difficult.
Ultimately, this will lead to socio-political regression. Upholding of misogynistic and patriarchal notions by the judiciary is bound to have an impact on the other dimensions of the state as well. It will lead to similar output from the legislature and the executive. The pace of social change regarding gender roles and women rights will be slow down as well.
Persistence in finding a permanent solution is required. An occasional reprimand cannot be a fix-all. Exhaustive guidelines backed by appropriate legislation need to be issued to judicial officers and courts across all levels to counteract overtures and sensitise them to the problems faced by victims and the potential impact their orders will have on society.
The recently proposed idea by current CJI N.V. Ramana for increased inclusion of women in judicial institutions may also be a way forward. In a changing India, we must compel the judiciary to safeguard the rights of women unqualifiedly.
(Ritwik Deswal is a B.A., LL.B. (Hons.) student at the University Institute of Legal Studies, Panjab University, Chandigarh, and a research intern at the Centre for Criminology, Criminal Justice and Victimology of Rajiv Gandhi National University of Law, Patiala. The views expressed are personal.)