Supreme Court must not send the wrong signals

By: |
March 3, 2021 5:15 AM

CJI’s statements on marital rape, marriage redressing rape set a bad precedent for judiciary

The judiciary, if it wishes to remain independent in the manner of its choosing (that is, outside an NJAC), must ensure that it avoids such controversies as the present one.The judiciary, if it wishes to remain independent in the manner of its choosing (that is, outside an NJAC), must ensure that it avoids such controversies as the present one.

The Supreme Court—or rather, its collegium headed by Chief Justice of India SA Bobde—was hailed when it decided to withdraw its recommendation for making Justice Pushpa Ganediwala a permanent judge of the Bombay High Court, following her controversial interpretations of the Protection of Children from Sexual Offences (Pocso) Act. Ganediwala had acquitted the accused in three separate cases with rather regressive interpretations of the Act. So, it is unfortunate that CJI Bobde’s statements on Monday, in two separate cases involving allegations of rape, should show the Indian higher judiciary in poor light.

One case pertains to rape and Pocso charges invoked against a government employee by a woman who alleges that the man had raped her repeatedly when she was 16 years of age—thus, legally unable to give consent for sexual activity—and pressured her family to sign an affidavit saying that the sex between her and the accused was consensual; the man, as per a report in The Economic Times, has claimed that he had initially offered to marry the survivor, but the latter had refused subsequent to which he had gotten married to another woman.

While the Bombay High Court had overturned the bail order granted to the accused in the case by a session court, the man was challenging this in the SC since arrest would mean that he would lose his government job. While the SC gave the man protection from arrest for four weeks, CJI Bobde asked him if he was willing to marry the survivor—this was before the accused told the court that he was already married.

It is hard to see why the court, in any scenario, would see marriage as commensurate, or even justifiable, redressal of rape and child sexual assault. Even in the second case, involving rape charges brought by a woman against a man during the course of a live-in relationship—the live-in was under false promises of marriage made by the man, the woman has alleged—the SC stayed the man’s arrest while a High Court (Allahabad) had rejected his bail plea. Even while the woman had submitted medical records as evidence of rape, the CJI wondered “if a man and a woman are living together, however insincerely… as man & wife… the man may be brutal and may do many wrongs (but) can you call it (any sexual conduct of such nature) rape?”

Many would likely view CJI Bobde’s statements, as reported in the media, as misogynistic, though he is handicapped by existing rape laws. Consent remains as important within perceived long-term relationships as it is outside these, but why blame CJI Bobde if India’s laws don’t recognise this? The Centre, in 2017, had told the Delhi High Court that criminalisation of marital rape “may destabilise the institution of marriage apart from being an easy tool for harassing the husbands”.

With ill-thought statements—the CJI’s in the present instance and Ganediwala’s judgements—the higher judiciary is setting a poor example, of attitude and judicial precedent both, for the lower judiciary where there have been many reports of sexist, misogynistic interpretations of the law. The SC had already come under a cloud in the episode of sexual harassment allegations made by a former junior court assistant against then sitting CJI Ranjan Gogoi. It is important to note that Bobde, who was tasked by Gogoi to probe the woman’s allegations, had found, along with Justices Indu Malhotra and Indira Banerjee, against the woman after the woman withdrew from the probe saying that her objections to manner of the panel’s functioning weren’t heeded.

This was despite at least one fellow SC judge imploring against an ex parte conclusion and a senior law official of the Union government asking for an external member to be included in the panel. The judiciary, if it wishes to remain independent in the manner of its choosing (that is, outside an NJAC), must ensure that it avoids such controversies as the present one.

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