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Earlier this month the Supreme Court was appalled by every paragraph of a Calcutta High Court judgment, which was in the headlines for all the wrong reasons as the high court advised adolescent girls to “control sexual urges as in the eyes of the society she is the loser when she gives in to enjoy the sexual pleasure of hardly two minutes”.
Paradoxically, such findings were made by the high court in a case of kidnapping and sexual assault of a minor, and the judgment went on to say that it was the duty of every adolescent girl to “protect her right to the integrity of her body.” While calling the judgment “absolutely wrong”, the Supreme Court reminded that “the honourable judges are not expected to either express their personal views or preach.” The apex court also found that “prima facie, the said observations are completely in violation of the rights of the adolescents guaranteed under Article 21 of the Constitution of India”.
What is alarming is that the judicial order in question is not a stand-alone aberration to be brushed aside. In August 2022, the district and sessions judge at Kozhikode, in Kerala, acknowledged the ‘revealing and provocative dress’ of the de facto complainant woman as a valid ground to grant anticipatory bail to the accused, who is a writer and social activist, in a molestation case under Sections 354A(2), 341, and 354 of the IPC. The said finding was arrived at by the judge by relying upon the photographs produced by the accused himself along with the bail application. However, on the plea by the state government, the Kerala High Court expunged the controversial remarks made by the sessions judge.
In November 2022, while granting bail to a 22-year-old man accused of raping a 15-year-old girl, the Bombay High Court held that the two were in a relationship and the girl, though minor, understood the consequences of her act. The court added that the applicant is a young boy and it cannot rule out "the possibility of him being smitten by infatuation". In November 2021, the attorney general had to move the Supreme Court assailing another Bombay High Court judgment acquitting a person under the POCSO Act, citing the reason that there was no skin-to-skin contact. While setting aside the controversial judgment, the apex court held that “The most important ingredient for constituting the offence of sexual assault is sexual intent and not skin-to-skin contact with the child”.
In May 2022, the Delhi High Court delivered a split verdict on criminalisation of marital rape. The judge who ruled against striking down of the marital rape exception held that “If the wife refuses and the husband, nonetheless, has sex with her, howsoever one may disapprove, it can't be equated with the act of ravishing by a stranger.”
In nutshell, a section of the justice delivery system still appears to be immune to modern principles such as gender equality guaranteed by the Constitution, while they are duty-bound to sensitise society with their verdicts in regard to the same.
This is despite the Supreme Court caution against such tendencies in a plethora of judgments. For example, in the case of Aparna Bhat vs State of Madhya Pradesh (2021), it was held by the apex court that the reasoning or language which diminishes the offence/tends to trivialise the survivor is to be avoided under all circumstances and such instances are only illustrations of an attitude which should never enter judicial verdicts.
In any case, there is no law which finds proximity between the de facto complainant’s clothing, etc. and the accused person’s innocence. Then how did such conclusions emanate? Whether the decision-making process borders on cognitive bias? In such a scenario, individuals often create their own ‘subjective reality’ from their perception of the input.
Justice Benjamin Cardozo, one of the celebrated judges of the United States Supreme Court, has pointed out in ‘The Nature of Judicial Process’ that judges’ sense of justice is a product of their life experiences, by famously remarking that “we may try to see things as objectively as we please, but we can never see them with any eyes except our own." So, who will bell the cat?
It would be unrealistic to expect that judges be like immortals descended from the skies. They are not expected to let go of their personal perceptions the moment they reach the Bench. But the same is not a justification to burden the polity with the tenets of a bygone era. The insights of a judicial decision-maker are to be perfectly blended with India’s constitutional ethos, so that just conclusions within the contours of the legal framework can be arrived at. Above all, relentless efforts should be made to sensitise and modernise society, of which the judges are also a part.
(Ron Bastian is a practising lawyer in the High Court of Kerala.)
Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.