A recent order by the Punjab and Haryana High Court suspending the jail sentences of the three O.P Jindal Global University students accused of repeatedly raping a fellow student has caused an uproar in the University’s campus. Being a part of the student community, I thought it was imperative to examine this order and understand the nexus between the Indian idea of morality and justice, which the judiciary repeatedly appeals to and sometimes bases its decisions on.
Being a part of the student communit, I thought it was imperative to examine this order and understand the nexus between the Indian idea of morality and justice, to which the judiciary repeatedly appeals to and sometimes bases its decisions.
In the order, reference has been made to the prosecutrix smoking cigarettes and agreeing to drink beer. The order also refers to a ‘perverse streak’ displayed by the victim since she agreed to purchasing a sex toy as suggested by the accused. To the young students of the University, it seems incredibly ludicrous that the possession of a sex toy changes the fact of inhumane mental and physical assaults were carried out. It’s beyond me why the Indian judiciary would even include such facts in its judgment which is publically accessible.
The order does not only assassinates the victim’s character but assumes a parens patriae character and almost changes the nature of the accused persons to that of being a victim. It says that if these young minds are confined to the jail for an inordinately long period, it will deprive them of their education and an opportunity to redeem themselves.
The court even grants the accused person leave to go abroad in case they want to pursue higher studies. Why has the Court undertaken such lenient attitude when it is dealing with such heinous crimes. It is almost as if after examining the case, the character of the victim has served as a mitigating factor in the punishment which must be given to the perpetrators of the crime. The court cites the lack of gut-wrenching violence which usually accompanies or precedes such an act of rape.
The victim has been subjected to non-consensual sexual acts and was forced to be a slave to the whims and fancies of the accused persons. Reference made to her buying condoms is not a sign of assent by the victim, but blatant coercion and only adds to the atrocity suffered by the victim.
In the recent Triple Talaq judgment, the Supreme court of India famously held that religious practice cannot trump modern constitutional morality. Hence it is incumbent upon us to examine what constitutes this ‘modern constitutional morality’.
Dr B.R Ambedkar said that “The principle of constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to sustain the value of such a morality.”
Part III of the Indian Constitution grants the citizens various important rights such as freedom of speech and expression and prohibits discrimination on the basis of sex or religion. The right to life under the Constitution of India also encompasses the right to live with human dignity.
The term dignity as interpreted in an Andhra Pradesh High Court judgment examining the constitutionality of beauty contests stated that such contests offend the dress norms or expose the female body in a manner, which offends female modesty and ends up subjugating social and moral values. Thus they are legally prohibited. The idea of social and moral values is too broad in its ambit. India is a vast country with diverse cultures and people belonging to different socio-economic backgrounds. This appeal in the Constitution to vague terms such as public morality and modesty creates more problems than it solves.
Even while the Supreme Court upholds the equality of women, it finds it necessary to find a basis in Indian culture. In the case of Shabnam and Ors. Vs State of U.P the court said –
“Indian culture has been witness to for centuries, that daughters dutifully bear the burden of being the caregivers for her parents, even more than a son. Our experience has reflected that an adult daughter places greater emphasis on their relationships with their parents, and when those relationships go awry, it takes a worse toll on the adult daughters than the adult sons.”
Statements appeal to a transient idea of Indian culture. Instead of only basing its judgments on the statutory provisions, Indian courts are increasingly bringing a moral perspective in their rulings.
Even in the cases of rape whenever the prosecutrix’s honesty has been questioned, the Supreme Court repeats the statement that in Indian culture, a woman–victim of sexual aggression would rather suffer silently than implicate somebody falsely. Any statement of rape is a highly humiliating experience for a woman, and until she is a victim of sex crime, and she would not blame anyone but the real culprit.
Instead of appealing to the nature of the offence committed, weight is given to a ‘ghost culture’ which cannot be pinned down. A woman must not be made a goddess, because she is only a mere human possessing faults just like the other. Such ideas of women created by the judiciary may benefit women in some cases but hurt them in other.
In the case of Amit Beri and Anr. Vs Smt. Sheetal Beri, the Allahabad High Court, while deciding the custody of a child paid undue attention to the fact that the mother was a frequent visitor to nightclubs. It is a known fact that nightclubs exist, and people are in the habit of visiting them. Even though the court acknowledged that the mother earned and was financially secure to take care of the child, the case was decided against her. The defence adopted by the mother stated that she only attended ‘family parties’. It is absurd to imagine that a grown woman has to give reasons for her independent decisions and is only an example of internalising misogyny.
In another case, the court emphasised on the value of joint family and brotherly harmony which has been the Indian culture. In a case against a Tamil film, asking for the removal of U/A certificate granted to it, the counsel for petitioner argued that a scene wherein two women in towel, with one smoking a cigarette and giving friendly advice to her friend on how to win over a man, is a degradation of culture and reeks of moral depravity. He deemed this to be especially dangerous for the female audience to watch. Such arguments continuously being made by advocates who must be beacons of social change and justice in society is abhorrent.
In an interesting judgment by the Supreme Court, a connection between the Constitution and Gita is also made. It reads as follows-
“For Arjuna, the freedom given to act as he wished to, was an illusion; acting in conformity with the instructions of Krishna a bounden duty. This message has perceptibly percolated down as part of Indian Culture, philosophy and behavioural setting the tenor in the Constitution for interaction between the high constitutional authorities and institutions. One needs only to be aware of this thought with which the Constitution is soaked.”
In the Punjab and Haryana High Court order the Court refers to the immature and nefarious world of youngsters and reprimands both the victim and the accused of dragging themselves and their families into an abysmal situation. This statement dilutes the seriousness of the crime; it is almost as if a boy has failed his exams and also did not let his fellow student do well because he threw water on her. The court must realise that it is not a principal in charge of ensuring discipline in a school, but a place for melting out justice according to the Constitution and statutes of the nation.
This is no tragedy as said in the order, but an intentional criminal act which must be punished according to the law of the land without reference to irrelevant facts.
The same youth who have been accused of being voyeuristic and promiscuous are the ones fighting for justice for the victim.
This post was previously published here.