In India, it is often seen when it comes to dealing with sensitive issues like sexual harassment or their victims, there are laws but are often meted out with variance in canons applied for different cases. There is absolutely no standard barometer to arrive at conclusion as the laws are formulated/amended, or the judges interpret them as per their own sensibilities and understanding.

Amid the roaring Covid 19 Cases the recent pronouncement of Maharashtra High Court in Mohit Subhash Chavan v. State of Maharashtra[1] has been causing a lot of buzz recently. The Anticipatory Bail Granted to the accused on the ground of marrying the Rape victim is a clear action taken in judicial capacity undermining the Sexual tension and displaying the trivialisation of sexual offences in Indian Judiciary system. The Esteemed Judges of learned capacity are expected to not only resolve but to award both the sides a judgement fit for their course of action. However the Chief Justice of India Sharad Arvind Bobde on Mar., 1 2021, “ordered” the Accused “will you marry her ” in response to which he further stated that “we are not forcing you to marry “.

However CJI S.A Bobde on Mar., 8 2021, stated that under Indian evidence act S.165 Judge has power to put forward question which he deems necessary for obtaining proper proof of relevant facts as presented in court and that the misreporting occurs as he never,‘ordered’ and just ‘asked’ a well presumed fact .

Under the POCSO Act anyone who is a Family Member and yet commits any Sexual Offence against a child of such family can be rigorously Imprisoned Up to 20 years. But allowing the accused interim relief by marrying the rape victim is a farfetched response to the witness protection scheme 2018,which says the POCSO courts to provide protection and support the victim to upheave from trauma as what can trivialize and trample the sexual identity of women more than her own Rapist .

The Madhya Pradesh High Court in Shri Vishal Patidar vs State[2] Judge Rohit Arya on Jul., 30^th had granted a ‘conditional bail’ to man accused of sexual harassment on terms that he would pay a visit to the complainant on the occasion of ‘Raksha Bandhan’ and to pay INR 11,000 to the complainant as ‘customary ritual offered by brothers to sisters on such occasion’. The order which provides unsatisfactory solution also said, “The applicant shall also tender Rs.5,000/- to the son of the complainant for purchase of clothes and sweets” apart from other conditions. The concept of having liberty to choose kin has been completely blown away by these words!

But can relationships really be made by Court’s compulsion? In India, the right to personal life and personal liberty has been envisaged in article 21 of the Constitution. Liberty has been granted where an individual can have a sibling of its own choice apart from having a blood one. There are other questions too which arises from High Court’s judgment. Can an accused perpetrator become victim’s protector? Does a woman only deserve respect on account of being someone’s sister? Can a woman’s modesty be bartered with an oath taken by the accused to protect her later?

The bench was hearing a plea filed by the ‘Public Spirited’ lawyers led by senior counsel, Aparna Bhatt to put a stay on the Bail .The plea stated that the requisite condition in the Bail order of the victim heeding to the request of accused to tie a Rakhi on his hand with a promise of protecting the victim is acting as a instrument of trivializing sexual offences against women as well as a medium of objectifying and further victimizing women in India as mere ‘subjects’. The humble submission of the current Attorney General of India, Mr. K.K. Venugopal before the three (3) Judges’ bench of Hon’ble Supreme Court stated the whole bare order as opposed to law a mere drama.

He further enumerated and marked it as a opportunity to emphasize upon the need to Impart Gender Sensitization knowledge to Sitting judges as well as future law and judiciary aspirants .In his humble submission he also mentioned incorporation of a gender education cell in the Judicial Academies governing the state and subordinate provinces. The provision of a Supreme court judgment may shed light on the incorporeal boundaries that must not be overstepped by Sitting Judges or the discretionary power be revised mentioning the conditions in which Bail is allowed as an exception.

“The judgment completely overlooks the fact that women are daily recipients of harassment for dowry and of domestic violence and seems to be a part of backward trend”, a litigating lawyer expressed his opinion. In Mar., too, an Additional Session Judge of Goa had granted bail to an accused in rape case on a bail bond of INR 15,000[3].

While a person having a start-up business opined differently and said, “I find the Court’s order a bit commendable as it is using local culture and ritual to ensure peace between the parties”.

Another issue that needs to be considered in Vishal Patidar’s case is the disclosure of name of the victim in the order. The order goes on to name the victim’s son out open which is again a ghastly error. As per Supreme Court’s 2018 ruling in Nipun Saxena vs Union of India[4], names, identities of victims shall not be disclosed in public. It has been specified that no one can print or publish in print, social media, electronic the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified that which may make her identity known to the public at large. Only Special Courts under POCSO were permitted the disclosure of the identity of minor victim, that too, only if such were in the interest of the child.

However, no provision substantially governs the aftermath of the rape as the accused is granted lenient punishment and the victim is compensated for her health but not awarded the deserving justice.

It is alarming to note that not only Indian Courts but US Courts have also come up with some inexplicable orders over the past few years. The biasedness of judges granting leniency to accused rapists who are privileged has been seen on many occasions.

In 2016[5], a Judge in California sentenced Brock Turner, a student of Stanford University to a meagre six months in jail along with three years’ probation, for three felony counts for sexually assaulting an unconscious woman. Judge rejected the prosecutor’s demand for a lengthy prison term. The case made headlines after the victim came with a powerful statement wherein, she recounted the assault, inequities of the legal process, and the ordeal of facing questions about her sexual activity and drinking habits which she read in court before the sentencing of the accused. Turner later on went into appeals court to have his sexual assault and attempted rape felonies overturned, however the three-judge panel of California upheld Turner’s sexual assault conviction and ruled that there has been ‘substantial evidence’ that Turner received a fair trial and hence would continue to remain on the sex-offenders register[6].

In a similar manner, in 2018, a New Jersey Family Court Judge James G. Troiano ordered that a teenager accused of rape deserves leniency because the accused comes from a ‘good family’ attended an excellent school, had terrific grades and was an Eagle scout[7]. The court went on to distinguish sexual assault and rape by defining rape as ‘something reserved for an attack at gun point by strangers’! Quite bizarre!

However, in appeals[8], the judgment was sharply rebuked and reversed by Judges Alvarez and Mawla and a warning was issued against the judge for showing biasedness towards privileged teenagers. The appeals court cleared the way for the case to be moved from family court to a grand jury wherein the accused could be treated as an ‘adult’ as had been sought by Prosecutor’s office in family court for the waiver of the juvenile to adult court. It was observed that the trial’s court denial of waiver on the basis of independent assessment of juvenile’s culpability and consideration of accused’s ‘prior good character’ sounded as of the judge had only conducted a bench trial on the charges rather than neutrally reviewing the State’s application. The family court judge later on resigned after facing nationwide backlash for his alleged remarks[9].

The turmoil of unfathomable orders does not end here. In 2019, Cyntoia Denise Brown, a woman serving a life sentence for killing a man who bought her for sex when she was 16 years old[10], was granted clemency, as per Tennessee governor’s office. On one hand the sentencing for actual sexual offenders are ranging to six months while a person who is taking actions to not become a victim is rewarded with incarceration for nearly half her young life. These rulings for sexual assault victims’ epitomes the emblematic of a legal system that is mired in bias and privilege and which deters victims from reporting assaults.

In India too, violence against women and girls has historically been marked by perpetuations, progress and resistance. There is social consensus that rape is a heinous crime – for patriarchy, because rape is a crime against family honour. The failure of various reforms and laws protecting women has largely been associated with resistance from the social order. Hence, ‘de jure institutional changes pursued by the population, government and apolitical groups are consistently resisted by social actors blinded by de facto cultural and historical pressure’. For instance, in a case of sexual violence or rape, the legal system is designed instead to ‘chastise’ women rather than the offenders[11].

It is often seen how panchayats in India deal with the rape cases. In 2015, a Bihar panchayat ordered one of its accused of raping a mahadalit woman to pay INR 41,000. Again in 2018, panchayat in Aligarh proposed INR 80,000 as compensation for a minor’s gangrape. How can the society objectify a 17 year old girls lifelong trauma to be a affordable activity? By coming out with such orders aren’t we giving a message to sexual offenders roaming free in search of prey?

Our country has seen major amendment in the Criminal Law Act, post Tuka Ram vs State of Maharashtra[12] case, better known as ‘Mathura Rape Case’. The Apex Court had acquitted the convicts on the ground that the ‘marks of violence and resistance on the victim’s body were inadequate’ and a possibility of consensual sex arose . A huge outrage broke thereby compelling Supreme Court in amending the rape laws, forbidding any mentioning of the female’s sexual history or “morals” while defending the accused. In 1990, the Hon’ble Supreme Court in State of Maharashtra vs Madhukar Narayan Mardikar[13], ruled that even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. It is not like that our Courts have come up with absurd orders only!

Later on, in the cases of State of Punjab vs Gurmit Singh[14] and Sakshi vs Union of India[15], Supreme Court laid down guidelines to shield the victim from anxiety and intimidation generated by being in physical proximity of the accused. It also added that the prosecutrix shall be routed questions through the Presiding Officer, and should be offered a chair, water and breaks as and when required. Besides that, the Criminal Law (Amendment) Act, 2013 has also came in force and stipulates that the trial should be completed within a span of 2 months so that justice is not delayed.

A landmark judgment came in State (Govt. of NCT of Delhi) vs Pankaj Chaudhary & Ors[16]. in 2018[17] whereby all-women bench of Supreme Court carved the difference women judges can make while dealing with rape cases as compared to make judges who at times seem unable to overcome the regressive, stereotypical views on rape. The judgement quashed the 2009 Delhi High Court’s order that had acquitted four accused in a gang rape case and restored the trial court’s conviction in the case and awarded ten years jail term for the accused. The Apex Court stated ‘assuming that the woman was of easy virtue, she has a right to refuse to submit herself to sexual intercourse to anyone’. The top court maintained that even if a prosecutrix is of “immoral character” then also her evidence cannot be thrown away because of her virtue. Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference like the victim being a woman of ‘loose moral character’ is permissible to be drawn from that circumstance alone,” said the bench[18].

Instead of relying on the amendments and major rulings laid down by Apex Court, the current judgment of Madhya Pradesh and Maharashtra High Court gives the impression that women are only going to find brick walls at police stations and courts where they are supposed to get justice. “Let’s give bail to all accused and rapists. Courts are really doing a great job. Let’s give easy passes to all eve-teasers. Being hopeful for justice has just become a mockery in our Democracy”, Jaya Guar, an outraged dental college student said.

The High Court’s order is extremely disrespectful towards woman who are seeking justice. Such orders are only a stepping stone in belittling the incidents of harassment as person look up to the country’s judicial system for intervention and justice. And we definitely deserve better judicial pronouncements from our courts!

*****

FOOTNOTES

[1]Bail Order No.32 of 2020.

[2]Vikram v. The State of Madhya Pradesh, Madhya Pradesh High Court, MCRC (23350 of 2020) Dated:30.07.2020 https://mphc.gov.in/upload/indore/MPHCIND/2020/MCRC/23350/MCRC_23350_2020_Order_30-Jul-2020_digi.pdf

[3]Case Order 15 of2020

https://services.ecourts.gov.in/ecourtindia_v4_bilingual/cases/display_pdf.php?filename=/orders/2020/202600000152020_1.pdf&caseno=BA/15/2020&cCode=1&appFlag=web&normal_v=1.

[4] (2019) 2 SCC 703.

[5]Liam Stack, Light sentence for brock turns outrageous in Stanford Rape case, New York times (6 Jun. 2016)

https://www.nytimes.com/2016/06/07/us/outrage-in-stanford-rape-case-over-dueling-statements-of-victim-and-attackers-father.html.

[6] https://www.bbc.com/news/world-us-canada-45124290.

[7]Luis Ferre Sardini, Good Mannered Family Boy Innocent,New York times

 https://www.nytimes.com/2019/07/02/nyregion/judge-james-troiano-rape.html.

[8] https://www.njcourts.gov/attorneys/assets/opinions/appellate/unpublished/a0223-18.pdf.

[9] https://www.nytimes.com/2019/07/17/nyregion/judge-james-troiano-resigning.html.

[10] Cyntoia Brown freed from prison, Tennesse ,https://www.nytimes.com/2019/08/07/us/cyntoia-brown-release.html.

[11] Nigam S (2014) Violence, Protest and Change: A Socio-Legal Analysis of Extraordinary Mobilization after the 2012 Delhi Gang Rape Case. Available at SSRN 2484641.

[12] Tuka Ram vs State of Maharashtra 1979 SCR (1) 810.

[13] State of Maharashtra vs Madhukar Narayan Mardikar (1991) 1 SCC 57.

[14] State of Punjab vs Gurmit Singh (1996) 2 SCC 384.

[15] Sakshi vs Union of India (2004) 5 SCC 518.

[16] State (Govt. of NCT of Delhi) vs Pankaj Chaudhary & Ors Criminal Appeal No. 2298/2009 and Criminal Appeal No. 2299/2009.

[17]https://www.barandbench.com/news/rape-woman-habituated-sexual-intercourse-supreme-court-overturns-gang-rape.

[18] A woman of easy virtue not reason to Rape, https://www.thehindu.com/news/cities/Delhi/a-woman-of-easy-virtue-cant-be-raped-for-that-reason- sc/article25384658.ece