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Are Our Judges Capable of Delivering Gender-Justice?

Chief Justice of India S.A. Bobde (Image Source: The Wire)

In a statement that reflected pervasively patriarchal prejudices and misogyny, The Chief Justice of India asked the person accused of raping a minor girl, whether he would marry her. The accused is facing charges of penetrative sexual assault under the Protection of Children from Sexual Offences Act, 2012, as well as rape and criminal intimidation under Sections 376, 417, and 506, of the Indian Penal Code.

After the Bombay High Court had quashed the bail order that had been granted to the accused by an additional sessions judge, the accused had approached the Supreme Court. On the grounds that the bail order had been perverse, arbitrary and capricious, the Bombay High Court had cancelled the bail and had castigated the sessions judge for not exercising the discretion vested in him judiciously.

Whether CJI Bobde considered marriage a more befitting punishment than prison sentence, or thought of it as an offer of redemption to the accused, or rather assumed that the victim would find solace by marrying the man who had allegedly raped her repeatedly for years; is unclear. But through the lens of humane and constitutional values of gender equality, the suggestion of a lifelong, intimate and legally sanctified relationship with a man who violated one’s bodily integrity, appears repugnant and morally abhorrent.

The CJI seems to have believed that the pain, trauma and humiliation caused to the victim would magically vanish, through marriage with the very man who had been responsible for her trauma in the first place. Although CJI Bobde clarified that he was not forcing the accused to marry the victim, the voice of the victim, going by the media reports, seems to have been forgotten within the prevalent discourse.

India’s incredibly low number of reported rapes is often highlighted to indicate that sexual violence in India is not as bad as it is in most other, often more developed countries across the globe. However, India’s lower number of reported rapes is actually a result of factors such as social ostracization, stigma, familial pressure, apathy of law-enforcement-agencies, tedious judicial proceedings, and the economic and emotional strain of pursuing judicial remedies that constrain victims of sexual violence from reporting crimes, and these reinforce a pervasive rape-culture in India.

Many of these rapes are committed by someone who was known or related to the victim, and the number of such unreported rapes could be unfathomably high. Within this context, the remarks of CJI Bobde need to be problematized.

The alleged crime had taken place in 2014, when the victim was still a child in school. The accused, who is a relative of the family, had assaulted the young girl on numerous occasions. When the girl and her mother went to file an FIR, they had been approached by the accused’s mother, who said that her son would be willing to marry the girl if her mother would sign a written declaration claiming that the sex between them had been consensual. Even if this were true, the act would have still been illegal because the age of consent in India is eighteen, and any sex with a minor would be considered as statutory rape, noting which the Bombay High Court had denied anticipatory bail, to the accused.

The desperation of the victim’s mother to accept the offer of marriage made by the mother of accused can be read as a sad manifestation of patriarchal hegemony that uses antiquated notions of honour and shame to control a woman. Such an acceptance however, would only reiterate parental control over women and deny them autonomy, since the girl had been a minor and the question of her consent to the offer should not have arisen in the first place.

This however, wasn’t the first time when CJI Bobde made such outrageous remarks in the court. Just a few days prior, he had said, “When two people are living as husband and wife, however brutal the husband is, can you call sexual intercourse between them rape?,”.

He had made this remark while hearing a case in which a woman had accused her partner of sexually assaulting her. The CJI had then further added, “Then you file a case for assault and marital cruelty. Why file a rape case?,”

In that case too, the bench led by the CJI had granted interim protection from arrest, to the accused.

Now, an open letter to the CJI, demanding his immediate resignation, has been drafted by around 4000 activists, social justice groups and citizens.

This isn’t the first time though, when the Supreme Court has been subjected to such criticism for its callous handling of matters related to sexual violence against women. In 2019, CJI Bobde’s predecessor Ranjan Gogoi, had been accused of sexual assault by a junior assistant. After which, in a widely criticized move that had disregarded the key tenets of natural justice, Gogoi himself had led the bench that had heard the facts of the case.

By offering marriage as remedy to rape, the CJI has not only approached the issue of sexual violence against women with callous disregard and insensitivity, but has also undermined the esteem of the Supreme Court and highlighted the institutional bias against women, that makes the justice-system which claims to be for everyone, openly hostile towards women.

If law-enforcement agencies and courts parrot dated, patriarchal ideas about sexual violence; if the CJI of the country thinks that marital rape is not rape and instead, considers asking rapists to marry victims as the pathway to justice, and if the Supreme Court (the most powerful judicial institution of the country) becomes complicit in bolstering a culture of violence and impunity, women would indeed have little to no faith in the institutions of the country.

Applying the minimum standards of sanity, it would have been a lot safer to assume that the victim in the aforementioned case, if given a choice, would have rather recoiled with horror at the thought of an institutionalized relationship with her assaulter. Did it not occur to the judges that a woman could be revolted by the very thought of a relationship with her assaulter, and even more so, if it involves physical and emotional intimacy? Moreover, were the judges even mindful of the long-term impact of sexual violence on the mental, emotional and physical health of the victim?

If the accused would have consented to the proposal of marriage with the victim, would the latter’s views and consent even be sought?

The larger looming question however; is whether our judges are capable of enforcing constitutional values of gender justice and equality, when they openly hold and express views that hinder the discharge of their constitutional obligation and duty.


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