A tale of three judgements

| | in Oped

Recent decisions by three High Courts speak volumes about the struggles between a rigid patriarchal mindset, rape victims, sexual offences, resistance and consent

Francis Bacon opened his famous essay, ‘Of Judicature' saying,  “Judges ought to remember that their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.” Three different High Courts in the country recently chose to not only make law but also inject judge-centric ideologies in their judgements. Chronologically speaking, the Punjab and Haryana High Court (criminal appeal no: S-2396-SB of 2017), while hearing appeals filed by three gang-rape convicts, suspended their sentence during pendency of the appeal. Second, the Bombay High Court (criminal appeal no: 655 of 2017), while hearing an appeal filed by a POCSO convict, declined to grant bail but made an extremely uneasy observation. Third, the Delhi High Court (criminal appeal no: 944/2016), acquitted Peepli Live co-director Mahmood Farooqui from rape charges but overturned the consent jurisprudence in rape cases while doing so.

First and foremost, I must share that the conclusions in the three orders cannot be termed incorrect. The Punjab and Haryana High Court took a view that as hearing the appeals will take some time, in the meanwhile, it was possible to help in reforming the three young convicts. It followed the principles of rehabilitative justice and suspended their sentence during pendency of the appeal. The Bombay High Court correctly refused to grant bail in the appeal as gruesome sexual assault was committed on a minor girl. The Delhi High Court was seized of a matter where the evidence was extremely weak and the guilt could not have been established beyond reasonable doubt, leading to acquittal.

However, in all the three judgements, the reasoning adopted by the three High Courts is upsetting and incorrect. The judgements show a struggle between a rigid patriarchal mindset of same old stereotypes, of an ideal rape victim, ideal sexual offence, ideal resistance and ideal consent. The Punjab and Haryana High Court made three unnecessary observations: First, it recorded that the entire “The entire crass sequence actually is reflective of a degenerative mindset of the youth breeding denigrating relationships mired in drugs, alcohol, casual sexual escapades and a promiscuous and voyeuristic world”. Second, it rendered a finding that an examination of the victim's statement offered an “alternate conclusion of misadventure stemming from a promiscuous attitude and a voyeuristic mind”. Third, it termed the gang-rape as a behaviourial aberration and asked the doctors at the All India Institutes of Medical Sciences to counsel the rape convicts. It is pertinent to note that these observations will affect the outcome of the appeal.

The victim before the Bombay High Court allegedly had two boyfriends and the High court reasoned to deny bail that a woman may have an “easy virtue” but that does not mean that all and sundry can take advantage of this “fact”. I wonder what did the Bench mean by an “easy virtue”, but I strongly contend that having two boyfriends stands excluded.  The Delhi High Court went one step ahead to write that normally, man is the initiator of sexual interaction and he performs the active part, whereas a woman is, by and large, non-verbal. It also devised that when the victim and the accused know each other and the victim is educated and may have had physical contacts with the accused in the past, a “feeble no” may not suffice. It turned the consent jurisprudence upside down and shifted the onus on proving consent and “real resistance” on the victim (particularly an intellectually/academically proficient woman), contrary to settled principles of the law.

Consent has been defined under the Indian Penal Code, 1860  as an unequivocal voluntary agreement when a woman, by words, gestures or in any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. Absence of physical resistance, it has been clarified, would not by itself amount to consent. It largely implies that whether she wanted the particular act of sex on that particular occasion with that particular man. Further, Section 114A of the Indian Evidence Act, 1872 makes it abundantly clear that there is a presumption in cases of sexual offences that the victim did not consent. The Delhi High Court, however, declined to adhere to law and crafted an “affirmative model” of consent to hold that a “no” may mean a “yes”.

While deciding criminal matters, the courts are seized by facts and circumstances of that particular case. Judges should avoid making observations which reflect their personal ideologies and take note of the law while deciding such matters. The judges must understand that the law does not distinguish between a woman and a ‘woman of easy virtue' and an ‘academically proficient woman'. A sexual assault is a sexual assault, irrespective of how literate she is or what virtues she carries. There are no legal concepts like ‘assumed consent', ‘real resistance', ‘feeble no' and ‘prior physical contact'. The judges have to declare law as made by the Parliament. They cannot make or give laws while hearing criminal appeals. It is an accepted doctrine of law that justice must not only be done, but also seems to be done. In all the three cases, justice may have been done, but at least in light of the observations made, it does not seem to be done.

(The writer is a practising lawyer in the Supreme Court)

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