With a string of strange, insensitive statements and judgements, Indian Criminal Justice Courts have truly baffled us. In recent times, the definition of ‘justice’ and ‘penalty’ has taken a very different meaning clearly reflected by a plethora of cases where the courts seem to be complacent or dare, I say, complicit.
On 14 September 2020, a 19-year-old Dalit woman was allegedly gang-raped in Hathras district, Uttar Pradesh, India, by four upper-caste men. The impunity of authorities in Uttar Pradesh and media crackdowns took the internet by storm, with massive online and offline protests across the country. While activists and celebrities expressed their disillusionment at the horrific incident, former Supreme Court Judge Markandey Katju’s insensitive statement on Twitter linking rape incidents to unemployment in the country received a huge lash-back on the Internet.
According to the former SC judge, rapes are bound to increase in a nation where unemployment rates are mounting and rapes can conveniently be equated with ‘sex’, a natural urge in men.
An extremely problematic and apathetic statement deeply rooted in impunity, casteism and misogyny, it attests to the fact that the word of the apex court and its judges cannot be accepted as the Gospel truth. This deeply triggering analysis based on loose facts completely disregarded every individual that has been sexually harassed or raped at school, college, office, factories, even in the apparent ‘safety’ of their own homes.
Is Mr Markandey Katju trying to say that resolving unemployment will automatically erase differentials in power dynamics? Does our esteemed judge not realise his power to influence public opinion and how much his statement reassures men who commit these atrocities? Did the victim and her family ask for justice or justification? Hugely misguiding and insensitive, this tweet reflected many things- the self-righteousness of men in this position, their mindset towards sexism and patriarchy, the lack of women in jurisprudence and in our courts, and their utter disregard for a woman’s dignity.
Shortly after this, Bombay High Court Judge Justice Pushpa Ganediwala passed a recent order on a case under the POCSO Act that came under scrutiny, acquitting a man of rape charges, stating that it seemed “highly impossible for a single man to gag the victim and remove her and his clothes at the same time without any scuffle.”
“It seems highly impossible for a single man to gag the mouth of the prosecutrix [the victim] and remove her clothes and his clothes and to perform the forcible sexual act, without any scuffle. The medical evidence also does not support the case of the prosecutrix,” the Nagpur Bench observed.
The observation was made when Justice Ganediwala was hearing an appeal against the conviction of a 26-year-old man from Yavatmal.
The entire discourse in India pertaining to sexual harassment and rape is already borne of disbelief in the victim and always asks them to seek inwards, or their reality is manipulated and suppressed to an extent where they are not even in a position to explain what happened.
Statements like these are the reason women avoid speaking up earlier, and they act as huge deterrents to women who are gathering the courage to demand justice. The very institution which is supposed to be encouraging people to come forward contributes to silencing them by suggesting that their accusations are “impossible”.
What absolutely ruined the credibility of the Apex court was a most disappointing but unsurprising statement remarked by CJI Bobde in relation to a case where he stayed the arrest of the accused, and asked him whether he would marry the woman who had accused him of raping her when she was a minor.
Supreme Court hears a case where a government servant is accused to have seduced and raped a girl
CJI: Will you marry her?
Lawyer: Will take instructions
— Bar & Bench (@barandbench) March 1, 2021
“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,” Chief Justice of India S.A. Bobde reportedly told Chavan’s lawyer, who said that his client could lose his job. An exchange then ensued where CJI Bobde asked Chavan, “Will you marry her?” The Chief Justice also said, “You should have thought before seducing and raping the young girl. You knew you are a government servant.” And also, “We are not forcing you to marry. Let us know if you will. Otherwise, you will say we are forcing you to marry her.”
This entire exchange implies marriage as a license to rape. It looks at women not as individuals with dignity and a sense of person and body, but merely as an object, the ‘burden’ of whose ‘maintenance’ must be shifted from one party to another.
Does marriage negate the need for consensual sex in marriage? Contrary to what many of us might believe, CJI Bobde believes it does, as made abundantly clear by him in this statement-
“When two people are living as husband and wife, however brutal the husband is, can the act of sexual intercourse between them be called rape?”
This statement was in response to the massive storm he triggered on social media with his previous statement. Over 3,500 concerned citizens have issued an open letter demanding that he step down from the position and issue an apology for his remarks in court.
These recent judgements and remarks are nothing less than appalling- almost hard to believe. As if it weren’t unsafe enough to be a woman in India, face harassment by the police and ostracization by the community, must women also watch their constitutional rights be ridiculed, taken lightly by the Highest Court in India?
While three of the pillars of our democracy- (executive, legislature and media) are quickly crumbling, many of us had placed our faith in the fourth pillar- the Judiciary. Recent verdicts have however made it evident that the faith was misplaced, and in New India, women must never forget their position as second-class citizens, or worse- merely an object of satisfaction.