Judicial Approach on Crime Against Women- needs to be more proactive, emphatic and constant

By Adv. Shobha Gupta while speaking in a webinar held on 25.11.2020 by the Citizen’s Rights Trust.

We as a society today are standing on the verge.

As a woman I can tell you without mincing my words that ‘I’ do not feel safe at all in today's time.

I live in a constant fear and apprehension of a possible wrong, a possible threat, all the times. 

When I say ‘I’, I believe I am representing almost every single woman’s sentiment and concern.

As a society if your women are feeling unsafe then by default you all are unsafe, as a father/ brother/ husband/ caring Boss/ friend - even all males are always worried about the wellness and safety of the women attached to their lives. The sequitur is that we as a society are living in a constant fear of being unsafe, so much so that we are unsafe even within our four bounds.

I need not to mention the frequency with which we keep hearing the incidents of crime against women and quite often the brutality caused completely shocks the very belief that you are living in 21st century and are part of a civilized world.

It's a well-known saying that exceptional circumstances demand exceptional measures.

When the problem is this alarming, certainly the whole society and all its stakeholders have to play their roles super extraordinarily. They all would have to act and react in all cases of crime against women with exceptional empathy.

All stakeholders have to play a very very resolute role to curb this menace. WE cannot allow ourselves to just feel bad on each such incident reported, criticize it, talk about some measures for sometime and then forget it in our daily hustle bustle. As a society we have to take multifold measures.

(i).      we need to grow an atmosphere of respect and equal treatment towards our women. This is not asking for any special treatment, just an equal one-  at  (a).      within our homes;

                                                (b).    workplace;

                                                (c).     society;

  (d).    in all walks of life.

(ii).     We need to talk a lot about women issues . That would play a role in educating people, both the women and the society.

(iii).    We need to sensitize ourselves specially the men around about with what a woman goes through when,

(a)             discriminated on the basis of gender, or

(b)             victimized, be it by an unwanted gesture, touch, words, excess in approach, expectations of sexual favours or molestation's,

(c)              made victim of the extreme sexual abuse i.e. rape. 

(iv).     This sensitization needs everywhere, in each possible department, be it:

(a)             Family

(b)             Society

(c)              Police

(d)             Hospitals

(e)             Shelter homes

(f)               courts

(v).     Courts play a vital role, specially in today’s era when the verdict of a court is out in public domain in seconds of being passed. The approach of the courts can bring a whole lot of the difference in the general approach of the society towards their women.

The Judges are addressed as “My Lords”. They hold a special and very idealistic image and position in the mind of the general public. Thus by the sheer force of their position, their words/ views/ dictates are not only binding but can have most telling impact on the general public mindset  of what is acceptable to law and society and what is not.

A completely uncompromising approach and attitude is required when it comes to dealing with honour and will of a woman victim of a crime. Orders of the courts are kind of bench mark for an ideal society. When a judge takes a view in matters relating to crime against women with a very liberal approach not even conducive to law, then the damage is far more serious than its silence. 

Recently, we have come across few such orders from various High Courts and Lower Courts, which forces one to wonder why things have gone so wrong?

How come a judge can find any justification in granting bail to a rape accused if the girl ties rakhi to him. Is an offence of rape compoundable. Few observations in judgments forces you to wonder, is this approach of an individual or it reflects approach of the society as well. Let us discuss few cases to understand this further:

I.         In the year 2005, several special leave petitions were filed by State of MP against orders of Justice N.S. Azad, who in several matters of rape, reduced the sentence to period undergone which were even less than the minimum period as prescribed under section 376 IPC (prior to 2013 amendment). 

All these cases came before the same bench of three Judges of Supreme Court comprising of Justice R.C. Lahoti, the then CJI, Justice G.P. Mathur and Justice P.K. Balasubramanyan. These cases were reported in State of MP V/s Bala; 2005 (8) SCC 1. In the first case the period undergone was only 9 ? months. The Supreme Court noted that the proviso appended to sub-section (1) lays down that the court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than 7 years. There is a similar proviso to sub-section (2) which empowers the court to award a sentence of less than 10 years for adequate and special reasons to be mentioned in the judgment. The High Court awarded sentence which was not only grossly inadequate but was also contrary to the express provision of law. The High Court not assigned any satisfactory reason much less adequate and special reasons for reducing the sentence to a term which is far below the prescribed minimum. Therefore, the sentence awarded by the High Court is clearly illegal.

Justice P.K. Balasubramanyan in his concurring judgment noted that :

“The crime here is rape. It is a particularly heinous crime, a crime against society, a crime against human dignity, one that reduces a man to an animal. The penal statute has prescribed a maximum and a minimum punishment for an offence under Section 376 IPC.

To view such an offence once it is proved, lightly, is itself an affront to society.

Though the award of maximum punishment may depend on the circumstances of the case, the award of the minimum punishment, generally, is imperative.

The provisos to Sections 376(1) and 376(2) IPC give the power to the court to award a sentence lesser than the minimum for adequate and special reasons.

The power under the proviso is not to be used indiscriminately or routinely. It is to be used sparingly and only in cases where special facts and circumstances justify a reduction.

The reasons must be relevant to the exercise of such discretion vested in the court. The reasons must be set out clearly and cogently.  The mere existence of a discretion by itself does not justify its exercise.

The long pendency of the criminal trial or the offer of the rapist to marry the victim are not relevant reasons. Nor is the age of the offender by itself an adequate reason.

The punishments prescribed by the Penal Code reflect the legislative recognition of the social needs, the gravity of the offence concerned, its impact on the society and what the legislature considers as a punishment suitable for the particular offence. It is necessary for the courts to imbibe that legislative wisdom and to respect it.

The rationale for advocating the award of a punishment commensurate with the gravity of the offence and its impact on society, is to ensure that a civilised society does not revert to the days of “an eye for an eye and a tooth for a tooth”. Not awarding a just punishment might provoke the victim or its relatives to retaliate in kind and that is what exactly is sought to be prevented by the criminal justice system we have adopted.

It is true that reformation as a theory of punishment is in fashion but under the guise of applying such theory, the courts cannot forget their duty to society and to the victim. The court has to consider the plight of the victim in a case involving rape and the social stigma that may follow the victim to the grave and which in most cases, practically ruins all prospects of a normal life for the victim. Could a court afford to forget these aspects while imposing a punishment on the aggressor? I think not. “

NOTE 1: we don’t discuss these judgments and views much on public platforms. These views need to be embossed in public memories like a carving on a stone. As a society we need to discuss these judgments repetitively and forcefully so to imprint them in everybody’s mind.

NOTE 2: The approach of the High Court was needed to be criticized. It is worrisome to note that a particular judge continued to adopt the same approach in several of the cases, which shows that we have judges in Higher Judiciary with this kind of approach in rape cases.

It also surprises one that why such liberal approaches are frequently seen in rape cases only. We generally do not notice such liberal approaches in murder case, or cases of theft or cases under the Prevention of Corruption Act , etc. Hope the answer is not that in the eye of the Hon'ble Judges, the other crimes are far more serious than rape or other crimes against women.

II.        In State of Rajasthan v. Om Prakash, (2002) 5 SCC 745; SC reminded that “cases involving sexual molestation and assault require a different approach — a sensitive approach and not an approach which a court may adopt in dealing with a normal offence under penal laws”, but it seems these wise words of the Top Court had fallen into deaf ears. In State of Punjab v. Gurmit Singh (1996 (2) SCC 384), Justice Anand observed that “the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations”.

III.       In the recent past (June 2020) in the matter of Rakesh B v. State of Karnataka, Justice Krishna Dixit of Karnataka High Court granted bail to the rape accused by observing that “the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished”. Though this remark was later recalled by the Judge after very strong public criticism. There cannot be any justification for this remark. Infact one falls short of words even to react to this remark, but this shows the mindset, not only of the judge concerned but of the Society from where the Judge has come. It is imprudent to expect much from the out product (its people- who can be a judge, police, politician or your boss) unless we change the approach of the source (society).  The Judge while recalling the remarks did not recall the bail order, while if that approach was the basis for bail then even the bail should have been recalled.

IV.       This mindset keeps reflecting even with very fine positive judgments. In U.P. v. Chhotey Lal, (2011) 2 SCC 550; the Hon'ble Court observed that

“the important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person. Ours is a conservative society and, therefore, a woman and more so a young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault. In examining the evidence of the prosecutrix the courts must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries. The courts must be sensitive and responsive to the plight of the female victim of sexual assault. Society’s belief and value systems need to be kept uppermost in mind as rape is the worst form of women’s oppression. A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in somebody falsely in the crime of rape. The stigma that attaches to the victim of rape in Indian society ordinarily rules out the levelling of false accusations. An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite or revenge.

It is quite clear that what all said here by Justice R. M. Lodha (who later on retired as the CJI) was in tremendous right spirit, but it also reflects on the mindset. Expressions like society’s belief, value systems, humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar, stigma, victim loses value as a person. The Hon'ble Judge notes that ours is a conservative society. Irrespective the right intentions with what all this was said, what troubles is the mindset. A conservative society should not rather rape a woman than attaching all these expressions on her that too in a judicial pronouncement.

V.        In another shocking judicial development, in July, 2020, the Madhya Pradesh High Court asked a 26-year-old man, accused of molesting a woman, to get a ‘rakhi’ tied by her on the day of Raksha Bandhan. The court also asked the man to give Rs 11,000/- to the woman as part of a customary offering made by brothers to sisters on the occasion, tender Rs 5,000 to the son of the victim for purchase of clothes and sweet and seek her blessings. The Single Bench of Justice Rohit Arya passed the order on July 30 while giving conditional bail to the accused, Vikram Bagri.

In the order, the court said, “The applicant, along with his wife, shall visit the house of the complainant with rakhi thread/band on August 3 at 11 am with a box of sweets and request the complainant to tie the rakhi band to him with the promise to protect her to the best of his ability for all times to come”. Bagri, was accused of sexual harassment, assault of criminal force to woman with intent to outrage her modesty and criminal intimidation, is accused of entering the 30-year-old woman’s house in Ujjain on April 20 and molesting her.

VI.       In July 2020, A Judicial Magistrate in Araria district of Bihar sent a 22-year-old “gang rape survivor” to jail on charges of obstructing proceedings of the court. It also charged two social workers with the similar crime for assisting her. While recording her statement in the rape case before a magistrate in Araria, the woman allegedly raised her voice, insisting she would sign the statement only after one of the activists has seen it. The Court though later granted bail to the victim after much of public condemnation. The activist were granted interim bail by Supreme Court by calling the arrests “impermissible”. It was a case of gang rape by 5 persons. The girl claim the judge had called her a “pagal, badtameez ladki” – a crazy, ill-mannered girl – accused her and the social workers of arguing with him, and ordered their arrest.

VII.     In 2011, a man accused of raping a woman for nearly three years was granted temporary bail by the Bombay High Court so that he could marry his purported victim. Justice JH Bhatia granted bail to Ganesh Waghmare after he assured the court that he would marry the 20-year-old woman within a month of being released. According to the prosecution case, the accused and the victim, a resident of Bangur Nagar in Goregaon (West), were in love and had agreed to get married. In view of the proposed marriage, the accused had lured the prosecutrix [the complainant] to have a physical relationship on several occasions between December 2007 and December 2009.

VIII.    A 15-year old rape victim, who was duped into marrying her alleged rapist, a 26-year old man, a Delhi Court Judge, endorsed the marriage of the minor as legal and granted bail to the alleged rapist. The 15-year-old filed a rape case against the accused, on the basis of which he was arrested and sent to jail. Later, to get their son out of jail, the accused’s family approached the victim’s family for marriage. They promised to keep my daughter happy. Even our relatives pressured us to get her married to this boy on the grounds that no one else would accept her for marriage. I had no clue about their real intention. 

IX.       The Punjab and Haryana High Court granted bail to a rape accused as he married with victim in jail by way of a ‘Nikah ceremony’ conducted inside the jail after permission from the authorities. The victim in the case is only 17 years and 5 months. According to the case details, the accused enticed the victim, took her out of the lawful custody of the guardian and committed the rape. There are a total of four accused in the case. The challan was presented by the police before a CJM court in Pathankot in February.

X.        In June 2015, the Madras High Court had granted bail to a rape accused to mediate with the survivor. The incident had occurred in 2008 and the man was convicted in 2012. The survivor was reportedly a minor when the rape took place and even gave birth to a child after the rape. Questioning the decision to grant bail to her attacker for mediation, the survivor said at the time: “I am not ready to talk or get married to him. Why are they asking me to talk to him after seven years?” The bail order reportedly referred to the survivor as “nobody’s wife” and “an unwed mother”, and said that the child is the “main victim”, who will carry a “social stigma”. The order stated that it was a “fit case for mediation”. 

XI.       In 2015, a woman in Odisha married her alleged rapist as she reportedly had “no other option”. A joint petition by the accused and the survivor was filed, following which the judge ordered prison officials to organise the wedding. They were married in Jharpada jail in Bhubaneswar on 28 January, where the man had been lodged since his arrest in 2014. After the wedding, the accused was granted bail and the couple lived with the bride’s family. The survivor’s father had said that the family was going to drop all charges. He said that his daughter had no other option but to marry the accused. “Her whole life would have been ruined. And we would have to put up with the embarrassment forever,” he said.

XII.      In May 2005, Additional Sessions Judge of Karkardooma court in Delhi, Justice J.M. Malik deferred his judgment by a day after a rape accused said he would marry the survivor. Minutes before Malik was about to pronounce the quantum of punishment, the accused said he would marry the survivor as now he was a reformed man and pleaded the court for leniency. He said he would be willing to marry the survivor, who was a nurse, as no one would be willing to marry her due to the stigma. Malik deferred the judgment, and ordered the survivor and her family to appear before the court the next day to file their reply, in response to the accused’s offer. The survivor, however, refused to marry the accused. In September 2003, the accused, who was a ward boy at Shanti Mukund Hospital in Delhi, forced himself on the nurse. When she resisted, he plunged his fingers into her eyes gouging out her right eye and wounded the left. He then allegedly dragged her to the bathroom and raped her and locked her in. 

XIII.    Horrifying stories of girls being ravished on the dictates of village kangaroo courts is not a secret. In 2014 one such incident took place where a girl was gang-raped on the orders of community panchayat, Birbhum District, West Bengal. In this case SC came as a savior of the girl and took suo moto cognizance of the matter.           Recently in Aug, 2019, a village panchayat in Bihar's Gaya district has held a minor girl responsible for her gang-rape by six men. Not only this, the panchayat also issued a diktat that the girl be paraded in the village and her hair be chopped off. The victim alleged that she was forcefully taken to a place where she was gang-raped by six men. The accused also threatened the victim not to go to the police and warned her of dire consequences. The crime occurred under Mohanpur police station.

XIV.    In Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130, the Supreme Court acquitted the accused persons by disbelieving prosecutrix version by observing that “during the course of investigation, the prosecutrix was taken to the area, to point out the kothi, where she was said to have been subjected to rape, but she failed to identify the said kothi. It may be recalled that she was alleged to have been abducted during broad daylight, thus her failure to identify the kothi, fully belies her case. In this case the Hon'ble Judges expected a 17 years old girl who came from her village to meet her bua and here abducted by some 7-8 persons, stuffed in a maruti van, taken to some building and raped. Simply because it was day time, the Judges of the top court found fault in her version because she could not identify the building. So assume her eyes were open when she was dragged out from the car to the building, she then in the wisdom of the judges were expected to kept herself vigilant while being dragged by some 7-8 people to see the building properly to identify the same later.

           WE need to ensure that our judgments reflect the ideal approach towards our expectation for the ideal society. Subjects like these, needs a much much fine approach. A zero tolerance for crime against women. At the same time a women heart is needed in all men to understand with what pain a women goes through when victimized, her anger, her sense of solace. Anyone who-so-ever dealing with a case of this nature, would have to make an attempt to enter into soul of that woman, before making any observation on her or on the case and while weighing the pros and cons.

           Infact the following observations of Justice Khehar in Addl. District & Sessions Judge ‘X’ v. High Court of M.P., (2015) 4 SCC 91, are of huge benefit to understand the point we are trying to make:-

25.  …..The issue of sexual harassment has a variety of fine connotations. Its evaluation may sometimes depend upon the sensitivity of the person concerned. And also whether, the perception of the harassed individual was known to the one against whom the accusing finger is pointed.

26. Every day is a matter of learning. Hearing of submissions in this case, we may say, was a matter of further understanding the sensitivities involved in a controversy of the present nature. We may venture to demonstrate this, by noticing a verbal exchange, during the course of hearing, between the counsel for the petitioner and that for the High Court. While the learned counsel representing the High Court was on “his” legs, the learned counsel for the petitioner interjected to express “her” point of view. All through, during the process of hearing, submissions were advanced in a lively and respectful manner, and pointedly on the subject under consideration. Feeling that the thought being projected by the learned counsel was being disturbed by the intervention, the Bench accordingly exhorted the learned counsel, to go on unmindful of the interruption. The learned counsel for the High Court, well meaning and deferential as he always is, responded by observing, “The interjections by the learned Senior Counsel for the petitioner, are always delightful”. The learned Senior Counsel for the petitioner, had serious objection to the term, “delightful” used, with reference to “her”. She questioned, the use of the term, “delightful” by posing to the learned Senior Counsel, whether similar interjections by men, were also considered by him as delightful. Why then, she questioned, should “her” interjection be found “delightful”. In expressing her view, she went on to describe the response of the learned Senior Counsel as “sexually coloured”. Having given our thoughtful consideration to the response of the learned counsel for the petitioner, we may only say, that she may well be right. There is a lot to be learnt, from what she innocuously conveyed. Her sensitivity to the issue, one may confess, brought out to us, a wholly different understanding on the subject. It is, therefore, that we have remarked above, that the evaluation of a charge of sexual harassment, would depend on the manner in which it is perceived. Each case will have to be decided on its own merits. Whether the perception of the harassed individual was conveyed to the person accused, would be very material in a case falling in the realm of oversensitivity. In that, it would not be open to him thereafter, to defend himself by projecting that he had not sexually harassed the person concerned, because in his understanding the alleged action was unoffending.”

Justice A. K. Sikri [Former Judge of the Supreme Court of India in his Address to the gathering of lawyers in Supreme Court Bar Association Farewell Function on March 9th, 2019]

Let me make another confession today. By nature, a part of me is feminine. Going by the qualities which this gender possesses, I am of the firm opinion that every male, in order to be a complete human being, should possess some elements of femininity. 

He further says that

After all the symbol of justice is a goddess, i.e. a female form. No doubt, she is shown blindfolded. However, her heart is not shut from where emanate the qualities imparting justice. It helps inhering the qualities of doing justice which is pregnated with mercy, justice which has the attribute of compassion. It is the attribute of femininity which instills the desired sensitivity, that is required in varied types of cases and in various circumstances. 

It is well-known that women have sixth sense. I told earlier that while discharging judicial function, with the passage of time, Judges acquire sense of justice, which is their sixth sense. However, there is a pre-condition to that, namely, you have to have feminine approach to justice.

In US, an interesting project was undertaken by the Cambridge University few years ago, known as “The United States Feminist Judgments Project”. The answer which the project wanted to find emanated from the thematic question – “What would the United States Supreme Court opinions look like if key decisions on gender issues were written with a feminist perspective?” To begin to answer this question, they brought together a group of scholars and lawyers to rewrite, using feminist reasoning, the most significant U.S. Supreme Court cases on gender from the 1800s to the present day. While feminist legal theory has developed and even thrived within universities, and feminist activists and lawyers are responsible for major changes in the law, feminist reasoning has had a less clear impact on judicial decision making. This Project took up 21 cases of the Supreme Court and applied feminist reasoning on the issues involved in those cases. On that basis decisions were rewritten and the conclusion was that previously accepted judicial outcome were not necessary or inevitable and demonstrated that feminist reasoning increases the judicial capacity for justice, not only for women but for many other oppressed groups. What else is needed to prove my point?

Similar exercise is undertaken by feminist academics and lawyers in Australia to present alternative Judgments in a series of Australian cases to contribute a distinctively Australian attribute to the growing International literature investigating the role of feminist legal theory in judicial decision making. The idea is to bring on board what the feminist re-writing does differently to the original case and its outcome.

Some similar re-writing is required to be done at least in few cases in India as well to make people within and outside the system to understand what difference a feminist approach can make to a case and its outcome.

[Adv. Shobha Gupta]

25.11.2020

[A lawyer practicing law at the Supreme Court of India]