Just as the Supreme Court ensured the CBI gets to the bottom of the 2G spectrum mess, just as they ensured masters of the universe, corporate giants were arrested along with a powerful regional leader like A Raja, just as they never gave up on the 2002 riots and oversaw the arrest of another minister, Maya Kodnani, the all powerful court’s gaze is now on our safety. As they haul the government to explain what they have done to make women feel safe again, they are perhaps our last hope of having something, anything good come out of the despair we’ve all sunk into since that day in December.
Or are they? As our politicians, our religious leaders, our police force, open their mouths to reveal their deep-rooted biases, their nightmarish belief that women are in some way to blame for sexual violence, can we look to our judiciary for progressive, pro-women thinking? Maybe not. Going through court judgements in cases involving crime against women shows that judges sometimes go by some of the worst stereotypes while doling out justice.
Take for instance the Sudhansu Sekhar Sahoo vs State of Orissa case that was decided in 2002 by Justice YK Sabharwal and Justice KG Balakrishnan in the Supreme Court. I cite this case first because it revolves around a woman we can easily identify with: a 29-year-old post-graduate working in a social welfare scheme of the government. The rapist in the case is her boss, and the basic details of the case involve her being summoned for some urgent work at night and being confined and raped. The trial court held her boss guilty of rape and sentenced him to seven years in jail and even the High Court upheld it, but here are excerpts from the Supreme Court judgement:
“There is no valid explanation offered by Ms X to travel all the way from her place of residence. Ms X being an educated woman would have naturally foreseen the impropriety of travelling along with other males in a jeep for such a long distance during night... Ms X, an unmarried woman travelled in a jeep for long distance in night and her conduct appears to be unusual and there is no rational explanation as to what urgent official work could have been there to undertake this nocturnal journey to meet her superior officer.”
The judges then go on to cite that she was habituated to sex according to her medical examination, that she had delayed reporting the crime and so they doubt her enough to set aside the conviction. The case sends shivers down my spine as a working woman as I now know that however independent I become, if I am unfortunate enough to encounter a crime, there is a chance that the judges won’t believe me when I say that my work demands me to stay out late. Am I asking for it when I go out reporting and do the late night bulletin?
This isn’t an aberration, and there are many other judgements like this. The Jagannivasan vs State of Kerala case relates to the rape of a 16-year-old and while there is conviction by the trial court and the High Court judges M M Punchhi and K Jayachandra Reddy hold the fact that the young girl kept quiet for six days against her. They instead say that it may have been consensual as the accused was working in Dubai and “was a bachelor and obviously an attractive catch for girls in his brotherhood to be bonded”. And so he is acquitted.
In the case of Raju & Krishna vs the State of Karnataka, the victim is a nurse who is misled by two men who promise to help her reach her destination, but rape her in a hotel. Judges K Jayachandra Reddy and GN Ray don’t doubt the victim’s character as such, but look at the justification they give for reducing their sentence to just 3 years — “when she agreed to share the same room at night in the hotel, the two young men became victim of sexual lust and against the consent and protest of the prosecutrix, committed rape on her. Considering the very young age of the accused persons and considering the circumstances under which there was every likelihood that they could not overcome the fit of passion and lost all sense of decency and morality and ultimately committed the offence of rape.’’ Poor, young rapists who couldn’t help themselves at the sight of a young woman who is willing to trust strange men!
Associate Professor at the National Law University, Mrinal Satish, who’s doing his doctoral study on rape sentencing in India, writes that while the Indian Evidence Act was amended in 2003 so that stereotypes wouldn’t affect rape trials, “The site of stereotyping has merely shifted from the guilt determination phase to the sentencing phase of the trial, and stereotypes have an adverse impact on rape sentencing.” Satish goes on to cite the Baldev Singh vs State of Punjab judgement of Supreme Court pertaining to a gangrape, where the court reduced the sentence to just three and a half years even though the minimum in such cases is 10 years imprisonment just because the victim was married. Since then the author of that judgement, the vocal Justice Markandey Katju, has also issued a clarification for reducing that judgement saying among other things that the victim was poor and benefited from the cash settlement, while the longer imprisonment wouldn’t have mattered much.
Reading these cases, I can’t help thinking of the image of justice – a blindfolded woman who’s always fair, who’s not influenced by factors like power, like class or creed or gender. But when a woman needs justice, does she get the same?
Sunetra Choudhury is an anchor/reporter for NDTV and is the author of the election travelogue Braking News. On Twitter: @sunetrac