The basic purpose of this blog is to bring into light the difficulty as faced by the victim due to stereotypical ideologies of the judges trying their cases. In this blog, we have discussed, by means of a study and certain cases, various comments by the judges which are quintessentially sexist and misogynistic. This blog tells how the personal ideologies of the judges affect the merits of the case and hamper the delivery of justice. We observed that patriarchy engulfs everything. Neither the lawmakers, the protectors nor the justice givers are exempt from it.
Keywords: Judicial stereotyping, Injustice against rape victims, Sexist remarks, Patriarchy in Judiciary.
India has regrettably become infamous for its sexist expressions, from mild to most atrocious forms, not only from its citizens, politicians, and celebrities but surprisingly, even from its judiciary. It rather becomes a critical matter of concern when such remarks come from the authority responsible for dispensing justice and safeguarding the rights of its citizens.
In a recent study by the students of National Law University, Delhi around 50 rape case judgements were analysed to explore if courts evaluated these cases with a stereotypical mind-set including ideologies and myths on how an ideal victim should have reacted in that situation. They don’t even accept the rape survivor’s story with a grain of salt if the victim was sexually-active. Sexist remarks were made in 52.3 percent of such cases. A recent remark by Justice Krishna S. Dixit of the Karnataka High court has again brought into light the practice of passing stereotypical and sexist comments by the judges in various different cases against the victim.
In this very case Justice Dixit while addressing the petition by the accused for anticipatory bail, passed the order in favour of the accused and granted him anticipatory bail. While pronouncing this order, Justice Dixit stated
Nothing is mentioned by the complainant as to why she went to her office at night ……….the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep , is unbecoming of an Indian woman; that is not the way our women react when they are ravished.
It is problematic how Justice Dixit based the decision on his ideology of how an Indian woman would react in a particular situation. Judges do often make up a story of what should follow in an ideal situation if a certain act happens, just in order to check the genuineness of the victim’s version. However, Justice Dixit went too ahead with stereotyping women and was adamant to not believe that it is very much possible for a helpless victim to fall asleep after such a heinous act is committed against her. While the decision on this case is pending and the case is still under trial, this remark by Justice Dixit raises concern over the influence of this myth and stereotyping on adjudicating the case itself and hampering the merits of the case.
Also, it is unnecessary to address the facts of the case while addressing a petition for an anticipatory bail by the accused. It must also be taken into consideration that when such unnecessary references are made to the facts of the case, a usual qualifier stating that the original case under trial would remain unaffected by it, was also absent in Justice Dixit’s order. So, should the victim suffer due to the rigid and impractical thinking of the judge? Should his personal ideology about how Indian women react to a particular situation obstruct justice? Exhibition of such stereotypical beliefs and myths by the judge in the pre-trial stage itself is a concern for the victim and an alarming sign for the judiciary to address.
This case is a gloomy example of disinclination of law to change. It shows how stereotypical and male chauvinistic norms are embedded in our culture which affect the logic as well as the objective behind new legal reforms. In 2013 notable amendments were made in the Indian Penal Code 1960, relating to the rape law jurisprudence, including the definition of ‘consent’. This amendment was made with the objective to make women the subject of the law contrary to what was observed in this judgement where the following statements were made: “even if the act was not with her consent, she actually communicated something which was taken as a consent by the appellant.” Central to the reasoning of the court, was what the man understood and not what the women communicated. The verdict not only censored women’s voice in matters concerning her sexuality but also endorsed male dominance in the sphere of sexual consent.
The verdict also inscribed the misogynistic idea by stating that “A no may not always mean a no”. So, does it mean a feeble no allows a person to go on and violate a person’s sexuality?
Also, it was stated that:
If one of the parties to the act is a conservative person and is not exposed to the various ways and systems of the world, mere reluctance would also amount to negation of any consent. But same would not be the situation when parties are known to each other, are persons of letters and are intellectually/academically proficient, and if, in the past, there have been physical contacts. In such cases, it would be really difficult to decipher whether little or no resistance and a feeble “no”, was actually a denial of consent.
The judgement sets out double standards and undue burden on liberated/educated women. It expects such women to be full-throated, not just feeble and to show an act of defiance, not just mere reluctance while communicating her consent. But why doesn’t it expect men to be clear and sure about the other person’s consent and why are they left to make assumptions? Does women’s education and freedom in our society come with a cost? Does the law look at educated women differently?
This case manifests victim blaming at its highest extent. The order not only portrays the picture of the victim as a person with loose morals and assassins her character, but also the perverse decision shows concern for the rapists who were convicted of rape by the trial court by stating
It would be a travesty if these young minds are confined to jail for an inordinate long period …. … …. …. in case they want to go abroad in future to pursue their studies, they will be free to apply to the Court
The courts in its order released the convicts since the “narrative does not throw up gut-wrenching violence, that normally accompanies such incidents”. So does that mean rape cases which are not abominable enough are not punishable and the rapists in such cases are free to go simply because the act was not dreadful enough for the law’s taste? Does it mean that law contains various “standards of rape”?
The judge even grouped the victim and the culprit in the same category, by saying, “What is equally worrisome is how to retrieve the youth who have dragged themselves and their families into an abysmal situation, be it the victim or the perpetrators.” Not only being morally abhorrent, this statement was also demoralizing towards the victim who stood up for her rights.
Also, the judges went as far as to say,
She also conceded in her cross-examination that her hostel room was searched leading to recovery of condoms by the Warden, but the parents were not informed in this regard. She further admitted that she used to smoke cigarettes of ‘Classic’ make.
Healso said that the woman was “promiscuous” and had “casual sexual escapades”. Does it mean that the law is different for chaste individuals? Also, is this a pertinent consideration in deciding an application for suspension of sentence and bail made under Section 389 CrPC?
In this case, again, orthodox beliefs of the judges come into light. In the order, judges based their decision of acquittal of all the accused on the basis of discrepancies in the facts as told by the victim from time to time but also made certain remarks which were unnecessary and which portrayed a stern personal ideology of the judges which yet again was stereotypical.
The judge while pronouncing the order, firstly, questioned the victim’s acts during the ordeal saying that her actions were submissive and gave an idea of a consensual act which was in his words “not at all consistent with those of an unwilling, terrified and anguished victim of forcible intercourse, if judged by the normal human conduct.” This, even though, is a stereotypical remark but is still acceptable on the grounds that it is related to the facts and made with an intent to check the genuineness of the act itself.
But the judge further goes on to say,
Her post incident conduct and movements are also noticeably unusual. Instead of hurrying back home in a distressed, humiliated and devastated state, she stayed back in and around the place of occurrence, enquired about the same from persons…………. Her confident movements alone past midnight, in that state are also out of the ordinary.
The judge here tries to question the victim’s story by comparing and checking it against a personal criterion of how a terrified woman ought to react after such an incident has occurred against her. The way the victim reacted in this case, where she tried to investigate and find out about the perpetrators and location where the perpetration was committed against her, is believed to be an act which cannot be undertaken by a victim against whom rape is committed. Why? Just because we believe that all women are weak? It is difficult for us to believe that a woman against whom a crime is committed is ready to challenge the perpetrators and bring herself to justice. This remark and thinking not only discourages women to fight against the miscreant, but also suggests a standard way to react when they are sexually-offended. Because if they do not, no one will even accept that the act was forceful and not consensual.
Victim blaming is not something our country is completely new to and remarks like “what was she doing out so late” or “what was she wearing” are not very uncommon.
The problem doesn’t exist only with a certain section of the society, it lies in the sexist and misogynist culture that has impregnated India for years. A country where remarks like “cheekhegi, chillaegi, magarhaseena maan jaaegi” which are constitutive of the assumed consent remain unopposed. A country where it is expected from women to be an ideal victim to get justice. A country where it is not acceptable for a woman to be drained, fatigued and feel sleepy when she is trapped in a helpless state.
It is high time for the country to realize that if a victim does not fall within someone’s criteria of how a rape survivor looks like or feels does not invalidate their rape experience. Justice must not be compromised merely because of certain myths and personal beliefs, whether to an educated or an uneducated woman or, whether to a maiden or a sexually-active woman. ‘A rape is rape’. Period.
Author: Devyash Jain, Maharashtra National Law University, Nagpur and Simone Jain, Dr. Ram Manohar Lohiya National Law University, LucknowSource: https://www.jennliv.com/4269095-gallery#21