Of Precedents and Patriarchy
Updated: Mar 24
The patriarchal mindset of the Indian Judiciary
The judiciary is the backbone of the democracy in our country and the protector of the Constitution and the rights of the citizens. The courts are believed to deliver justice for the aggrieved citizens. Hence, are known as “Nyayalaya” in Hindi, which means the house of justice. However, various judgments delivered by these very houses of justice throughout the years seem to be unjust and coloured with patriarchal shades.
From the Mathura Rape Case in 1974, where the Sessions court had acquitted the policemen because the woman “was habituated to sexual intercourse” therefore, only sexual intercourse could be proved and not rape. This was upheld by the Supreme Court in Tukaram v. State of Maharashtra  where the judges further noted, "Because she was used to sex, she might have incited the cops (they were drunk on duty) to have intercourse with her" and further commented on her character. This caused widespread protests and several women’s organisations came forward. The courts however argued that there was no locus standi in the case to rule in favour of Mathura. This resulted in amending of the rape laws by the Government of India.
In 2016, the Supreme Court ruled that a Hindu man can seek divorce if his wife tries to separate him from his divorced parents . This judgement comes as a slap for most women because according to Hindu traditions, a woman is required to leave her parents after her marriage whereas, a man can use the same as grounds for divorce.
In 2017, the Delhi High Court overturned the judgement of the Sessions Court and acquitted the film director, Mahmood Farooqui, who was accused of rape ruling that “a feeble no” can signal consent especially when the survivor is well educated. In the same year, it was observed in the Supreme Court and various High Courts that women were misusing Section 498A of the Indian Penal Code to harass their husbands and in-laws. It was also submitted to the Supreme Court by the Indian Government that criminalising marital rape can destabilise the institution of marriage and can be used as a tool by the women to harass their husbands.
In July 2020, the Indore bench of the Madhya Pradesh High Court granted bail to a person accused of sexual assault on the condition that he (the accused) should visit the house of the survivor and ask her to tie a “Rakhi” on his wrist and “promise to protect her to the best of his ability for all times to come”. In another case, the Karnataka High court granted anticipatory bail to a person accused of rape and held 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.” They further went on to comment on why the survivor did not refuse to drink the alcohol that was offered to her by the accused who was also her boss. This shows how insensitively the trauma and experience of a survivor of a sexual offence is treated by the Indian Courts and how prevalent victim-blaming is in the Indian Courts.
In October 2020, the Bombay High Court said that implicating a husband’s family under Section 498A is becoming a tendency of women. It further went to observe that, Supreme Court has repeatedly disapproved of using the criminal justice system as an instrument to settle personal rivalries among families. In January 2021, the Bombay High Court ruled that groping without “skin to skin” contact is not sexual assault under The Protection of Children from Sexual Offences Act. In another judgement of Nagpur Bench of the Bombay High Court, Justice Pushpa Ganwdiwala observed that “The acts of ‘holding the hands of the prosecutrix’, or ‘opened zip of the pant’ as has been allegedly witnessed by PW-1, in the opinion of this Court, does not fit the definition of sexual assault”. The court ruled that the offence was not sexual assault under the POCSO Act, but was sexual harassment under section 354A IPC.
In March 2021, the then Chief Justice of India, S.A. Bobde, in the case Mohit Subhash Chavan v. State of Maharashtra,asked the petitioner (the accused rapist) "Will you marry her (the survivor)?" The counsel for the petitioner told the court that he would take "instructions". To this, the CJI responded "You should have thought of this before seducing and raping the young girl. You knew you are a government servant." He also said that "We are not forcing you to marry (her). Let us know if you will (marry the survivor). Otherwise you will say we are forcing you to marry her."
The petitioner (for bail) in this case is a married man who wanted to marry the survivor (a minor), who is also a distant relative of his. On being rejected by her, he got married to someone else and raped the survivor 10-12 times and threatened to throw acid on her face if she reported him to anyone. The trial is still in its early stages and the charges have yet not been filed.
By making the statement "will you marry her?" The court makes it look like a promise made on the premise of marriage. The logic behind it is that if the "consent" of the woman for sexual intercourse was obtained by promising to marry her, but the promise was a false one, the man is liable for raping the woman because he lied to have her consent for sexual intercourse. Similar laws and precedents exist throughout the world for having obtained the consent of women for sexual intercourse by fraudulent means or false promises. The idea behind it is that the consent of a woman for sexual intercourse was given under specific circumstances, if those circumstances didn't exist, the man would not have had the consent of the woman.
The problem with making the statement and the observations that followed it were, that the then CJI of India implied that it is okay for a man to rape a woman if he was willing to marry her or is married to her. The age of the survivor at the time of the incident took place doesn't matter in such a case because the man agreed to marry her in the first place. This explains the thinking to why Marital Rape is still not an offence in India. These types of statements by those in power reinforce the idea that wives are the property of the husband and they can do whatever men want with their wives regardless of the wishes or thoughts of their wives.
Another surprising fact about the observations of the CJI was that he used the word "seducing" along with the word rape. The word "seduce" according to Cambridge dictionary is defined as: "to make someone feel attracted to you and want to have sex with you, often with someone younger or less experienced" and "to persuade or cause someone to do something that they would not usually consider doing by being attractive and difficult to refuse". However, the accused in this case has been accused of gagging and tying the hands and legs of the survivor and raping her. He had also threatened to throw acid on her. These acts are not that of "seduction" but those of brutality.
In several cases, the judges have been using the terms enticing or seducing along with rape whereas in reality, the acts were those of brutality.
On 21st May 2021, the Sessions Court at Panaji acquitted Tarun Tejpal, the former editor-in-chief of Tehelka, for sexually assaulting his then-colleague at a hotel in Goa in 2013. Amidst, lapses during the investigation and video footage from the CCTV camera of the place of crime being destroyed by the Goa Police during the trial, the judge for the case, Justice Kshama M. Joshi observed in her decision that the complainant did not show “kind of normative behaviour” as was expected from a victim of sexual assault. The court further observed that “It is extremely revealing that the prosecutrix’s (victim) account neither demonstrates any kind of normative behaviour on her own part – that a prosecutrix of sexual assault on consecutive two nights might plausibly show nor does it show any such behaviour on the part of the accused.” The court released the accused on “reasonable doubt” as many things including the conduct of the prosecutrix “create doubt on truthfulness”. The court in these observations ignored that every person reacts differently to trauma and cast a stereotype on how the survivors of sexual assault and rape should behave. According to the court’s observation, women who don’t behave in the “normative way” have not been subjected to violence or harassment.
These statements come from court even after the National Crime Records Bureau  recording that there were 4.05 lakh cases of crime against women reported in 2019 itself. Out of this, 1.26 lakh cases were that of domestic violence. This means that 31.11% of all reports of crime against women are that of domestic violence. It was also observed that the crime rate registered per lakh women in 2019 was 62.4 compared to 58.8 in 2018. Further, NCRB recorded that on average 87 cases of rape were reported every day in 2019. Many activists say that most of the cases are not recorded and are dismissed off by the police and medical workers and minor injuries on women are noted as accidents. It has also been observed that 86% of women who experience domestic violence never seek help from the people and 77% of them do not mention the incident(s) to anyone. The National Commission of Women registered an increase of 250% in the cases of domestic violence during the lockdowns in 2020. During the time of April to June 2020, National Legal Services Authority provided legal assistance to 2878 cases of domestic violence. In the given circumstances, if the Courts include observations like the above statement, those statements can be used as precedents or be quoted by police officers for certain cases and actually harm women who are suffering because of domestic violence.
It's 2021, and it's high time that people especially those in the legal field should understand these nuances so that wrong precedents are not set and such misogynist and archaic thinking is not promoted in society.
Disturbed by such judgements and observations of the Indian Courts the Attorney General K.K. Venugopal wrote a letter to the Supreme Court highlighting the need to sensitise the old school and patriarchal judges so that orders which objectify women in cases of sexual violence are not passed. He further went on to emphasise the need for lawyers to take up gender sensitisation courses. The Attorney General noted the abysmal representation of women in the higher judiciary (1 out of 13 judges in the Supreme Court are women as opposed to 2 out of 34 judges in December 2020). The inclusion of more women in the judiciary will bring about a positive change in the attitude of the Courts toward the offences of sexual nature and hopefully, the Courts will truly be the protector of rights for all the citizens.
Afterword: I have used (binary) gender-specific words for rape making it sounds like only a binary woman can be raped by a binary man. I apologise for the use of this terminology. In this article I am trying to understand and critique the statements of the Court. To do that, I feel, it's imperative to write according to what the current statutes are. Till date, according to IPC, only a woman can be raped by a man. Hence, the use of this terminology.
 Tuka Ram and Anr. v. State of Maharashtra (AIR 1979 SC 185)  Narendra v. K. Meena (2016) 9 SCC 455  Mahmood Farooqui v. State (Govt. NCT of Delhi) Case (2017) 243 DLT 310  Hereinafter, IPC  Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 SCC OnLine Guj 732  Vikram v. The State of Madhya Pradesh (30th July 2020)  Rakesh B. v. State of Karnataka  Shabhnam Sheikh v. State of Maharashtra 2020 SCC OnLine Bom 1752  Satish v. State of Maharashtra  Hereafter, POCSO  Libnus v State of Maharshtra  Hereinafter, CJI https://images.assettype.com/barandbench/2021-03/5c8a3ed4-d618-44ea-bb18-843ffb1f4a4b/Mohit_Subhash_Chavan_Vs__State_of_Maharashtra_2.pdf  State v. Tarunjit Tejpal, CR. No. GANG01000854/2014  Hereafter, NCRB. https://timesofindia.indiatimes.com/india/not-rape-domestic-violence-is-top-crime-against-women/articleshow/78494876.cms https://www.thehindu.com/data/data-domestic-violence-complaints-at-a-10-year-high-during-covid-19-lockdown/article31885001.ece