In post-Independence India, the postulate of rule of law placed the judiciary as a strong pillar of democracy. Over the years, there has been a systematic erosion of the institutional legitimacy of the judiciary as a symbol of fairness and probity.
The conflicting pulls between ideas of justice and unfairness have defined the contours of politics for adjudication which is often influenced by a premonition that does not challenge normative notions of gender conformities. The courtroom, in many ways, has become as important as the election booth determining the resilience of democratic ethos and constitutional morality.
One of the predominant grey areas for ‘soft justice’ and discernible discomfort for the judiciary has been questions related to violence against women. Be it cruelty, sexual harassment and rape, the judges give a near perfect performance for moral restitution of society. The underlying misogyny runs in such a sublime fashion that it interweaves a complex discourse of public morality, sexuality, chastity, honour and shame. I will take up a few distinct judicial pronouncements in the last few months to argue the oscillation between procedural and substantive notions of justice within our Indian courts.
The latest Madhya Pradesh high court judgment has granted bail to the sexual harassment accused on peculiar conditions that contest the fundamental premises of gender justice. The reasonable ground for bail constructed by the court was that the accused would get a ‘rakhi’ tied by the plaintiff on the day of Raksha Bandhan. The plaintiff will sacrifice her right to privacy and bodily integrity by willingly accepting a box of sweets and Rs 11,000 as a customary offering and also have faith in the vows of the accused to “protect her to the best of his ability for all times to come.”
The overnight transformation of a molester to a protecting brother would defy all cultural beliefs about Raksha Bandhan. The use of the symbol of rakhi to dilute the pervasiveness of sexual harassment as an offence is noteworthy. In law, the intention to outrage the modesty of a woman is criminal and should be non-negotiable. But on multiple occasions, the court becomes a discursive site for (re)negotiating and mediating justice between confronting parties to hide public shame and stigma without attempting to challenge such gender stereotypes.
In June, this year the Karnataka high court too overstepped into the normative debate about how rape victims should behave after being ravished. S.375 of the Indian Penal Code lays down the bare provisions for what constitutes rape per se without offering any prescriptions about after-rape victimology. The non-genuine nature of the petition was based on the failure of the prosecutrix to behave in a typical fashion as other rape victims.
Since the prosecutrix became tired and fell asleep after the perpetration of the act, it was considered to be unbecoming of an Indian woman. These inherent virtues that are constitutive of Indian womanhood are what patriarchy has defined over the ages. The debate invokes the contestation between bad women and good women. A pertinent question that arises is if it not unbecoming of Indian men to rape? And what would be the prescribed behaviour for men after they have been raped?
In the similar tone, the Supreme Court in 2016 acquitted the convicts and disbelieved the woman in a gang rape case largely because “her conduct during the alleged ordeal is also unlike a victim of forcible rape and betrays [a] somewhat submissive and consensual disposition. From the nature of the exchanges between her and the accused persons as narrated by her, the same are not at all consistent with those of an unwilling, terrified and anguished victim of forcible intercourse, if judged by the normal human conduct.”
It was this very subtle judicial narrative of ‘character’ of prosecutrix in the Mathura Case that led to public outcry and the subsequent amendment in 1983. The unusualness of prosecutrix behaviour after a rape may have a context – the context of public shame, injury, threat to life and many more. A regressive u-turn is not what the women’s movement fought for over the decades. In fact, sometimes, the courts have even suggested marriages to the rape accused without even considering the victim’s right to live with dignity. Mediating a familial settlement between the rapist and the rape-victim is no way any service to humanity unless the perverted logic is trapped within the legal impossibility of marital rape being a criminal act in India.
The Gauhati high court in a visible instance defined what matrimonial obligations were for married women. Fulfilment of conjugal duties is the foundation of a Hindu marriage. Section 9 of the Hindu Marriage Act explicitly speaks of restitution of conjugal rights. In this case of divorce, the court observed that the refusal to wear primordial and traditional markers of marriage like shakha (conch shell bangle) and vermillion amounted to a refusal to accept the marriage.
The refusal of the wedded wife to live with husband per se was not considered to be a plausible ground for irreconcilability of interests to continue with the marriage. Instead, the court relied on patriarchal norms that perpetuate images of real womanhood in terms of perfunctory traditional norms. On a lighter note if not wearing shakha and sindoor is sufficient reason for divorce then it may actually liberate many women from violent marital relationships.
The common thread that runs through these three judgments is how the judiciary is pregnant with preconceptions about gender orthodoxy. The court has more often than not reiterated the populist pulse of public morality that buttressed the intersecting axes of power inequalities and discrimination.
In the new India that I imagine, a molester cannot be turning into a brother and a rapist cannot be turning into a husband. The court needs to critically engage with a creative interpretation of rights instead of partnering a hegemonic pact with unequal domination of power.
The institutionalisation of gender inequalities vide the judicial adjudication proves that the emancipatory potential of law is limited unless the judiciary itself is cleansed of its conservatism. Law and its custodians will require a continuous and sustained gender audit to gather courage to build solidarities that conspicuously and fearlessly uphold justice for its own intrinsic value.
Anita Tagore is currently teaching as an assistant professor at Kalindi College, the University of Delhi, and has a PhD in Political Science from CPS, JNU, along with an LLB from the Faculty of Law, University of Delhi,