By Jessy Kurian
New Delhi: Undisputedly violence against women is on the surge. Though there are many laws to protect women, the fact is that in most cases, women are not getting justice.
First of all, majority of the victims are poor. They are from the weaker sections of society, suppressed, oppressed, helpless, voiceless and defenseless like Scheduled Caste, Scheduled Tribes and Adivasis. When they file a complaint, in many cases, police do not register FIR. This helps the accused to take undue advantage over the victim and her family.
In such cases, victim or her family is threatened, attacked or killed or the victim commits suicide. If police and law enforcing agencies had done their part in time, many lives would have been saved.
Other aspect is the influence of money power, muzzle power and mafia to protect the accused. Political intervention to save the accused also is defeating justice. Women are raped for political revenge, family revenge, love revenge-where a woman refuses a man’s love offer.
Adding to this, certain orders of the judiciary instead of preventing rape in the country, cause to trivialize rape, which is a heinous crime as Supreme Court held, “ Rape is a crime not only against the person of the victim but against whole humanity.”
In 2018, the Supreme Court had invoked its inherent powers under Article 142 of the Constitution to modify the sentence of a rape accused to the period already undergone, to alleviate any further suffering of the prosecutrix, who had married him soon after the alleged rape.
Punjab and Haryana High Court granted bail to a rape accused after he married the victim though warning him that any attempt to divorce the girl would be ground enough for cancellation of the bail during the pendency of the trial and criminal proceedings can be initiated against him in case he seeks to annul the marriage after completion of trial
If courts allow the rapist to marry the victim or consider the marriage taken place between the rapist and the victim as a ground for bail, then the definition of rape under Section 375 of IPC can be changed into ‘Rape is the easy means to marry a woman or a minor girl against her will/consent’
Taking advantage of such rulings, in July 2020 a plea was filed before the Kerala high Court by a convicted rapist (Father Robin Vadakkumchery) for suspension of sentence to marry the rape survivor. Allowing the rape accused/convict to marry the victim defeats justice and makes the law ineffective.
As the Supreme Court held in Shimbhu versus State of Haryana, (2014)13 SCC 318, “A compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle.
Since the court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent. There is every chance that the victim might have been pressurised by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise”.
Karnataka High Court granted bail to an alleged rapist stating “unbecoming of an Indian woman to fall asleep after she is ravished.” However after hue and cry, it was expunged.
The trivial attitude, reached its zenith, when a single bench of the Madhya Pradesh High Court, Justice Rohit Arya on July 30, 2020, imposed a condition for bail. The court asked the 26-year-old man, accused of molesting the woman, to tie “Rakhi” on the hand of the survivor and to give 11,000 rupees as part of a customary offering made by brothers to sisters on the occasion of Raksha Bandhan. It has also asked the accused to give 5,000 rupees to the son of the victim for purchase of clothes and sweets.
However, the apex court once again proved its commitment to protect women in the country and to uphold their equal dignity.
Justices A M Khanwilkar and Ravidnra Bhat, while dealing with a petition from Supreme Court advocate Aparna Bhat and eight other women lawyers challenging the order of the Madhya Pradesh High Court held, “Even a solitary instance of such order or utterance in court, reflects adversely on the entire judicial system of the country, undermining the guarantee to fair justice to all, and especially to victims of sexual violence (of any kind from the most aggravated to the so called minor offences)”.
The bench also has laid down guidelines for judges to follow while dealing with women issues and writing judgements.
On March 17, while delivering the keynote address at a symposium organised by the Gender Sensitisation and Internal Complaint Committee of the Supreme Court to mark ‘International Women’s Day.’ Phumzile Mlambo Ngcuka, undersecretary-general of the United Nations and Executive Director of UN Women, said “Law alone cannot protect women and to establish equality but law accompanied by judicial pronouncements and its strict implementation alone can do so”
Remedies to improve judicial attitude:
a) More women judges should be appointed in all courts in India. Increase the number of women judges in the Supreme Court. It is pertinent to note that, there are only 79 women judges out of the sanctioned strength of 1,113 judges in the High Courts and the Supreme Court. At present o there is only one woman judge in the Supreme Court. Some High Courts in the country even today are without a sitting woman judge. Manipur, Meghalaya, Patna, Tripura, Telangana and Uttarkhand still await women judges.
b) Courts should follow strictly the guidelines laid down by the Supreme Court on March 18.
a) As the Attorney General K K Venugopal rightly said in the Karnataka matter and re-instated in the Madhya Pradesh matter, judges need to be trained to place themselves in the shoes of the victim of sexual violence while passing orders. They also need training on gender-sensitization and such training should be made mandatory in the law colleges as well
b) Judges should pass orders according to the law of the land. Tying Rakhi is not given as the ground for bail in a rape case. If not law will become infructuous and the judgement, a mockery of democracy
(Sister Jessy Kurian is an Advocate of the Supreme Court and founder president of the ‘Citizen’s Rights Trust’ — an NGO to promote Women Empowerment.)