‘Enough is enough. Your words, scandalise and lower the authority of the Court…..Propriety demands that you step down from the post of CJI without a moment of delay” – An open to letter Chief Justice of India by 4000 Women Activists.
Once, while teaching the batch of law graduates (a class where ratio of female students was higher), I came across the question – Sir, what are your views on feminism/feminist movements and don’t you think that these feminist movements do not represent the culture/societal values of our land? It was less of a question and more of a hegemonic statement. The majority of class was delighted by the second part of the question. They were expecting that just like various twitter/ social media trends in recent times – their faculty will definitely support their perception. But, in similitude with the political or media’s whataboutery of our contemporary post truth era, I countered and asked – define feminism? The answers were astonishing, but some sensible answers revolved around – justice, equality, rights and freedom et. al.. And before the class ended, I took the marker and wrote in capital letters: ‘FEMINISTIC MOVEMENTS/FEMINISM REVOLVES AROUND THE IDEA THAT – WOMEN ARE HUMANS TOO’. It took another class or two, where I tried to allow the future lawyers – to rationally comprehend the idea of feminism through the prism of factual and counterfactual arguments.
After a brief stint of eight months with my law students, I shifted to another work place. But suddenly as March 2021 came, we again started our debate on feminism through messaging app and groups attached to it. And this time their question was transformed tremendously, they asked – Sir, Don’t you think remarks made by the bench led by Chief Justice of India in the cases Mohit Subash Chavan vs. The State of Maharashtra & anr., and Vinay Pratap Singh vs. The State of Uttar Pradesh remains dehumanising in nature? Without a blink, I said – ‘yes, it is absolutely’. I was filled with joy and anguish both. Joy because the future lawyers have started to debate rationally, but was in a deep anguish because any comment made by the apex court can produce a ripple effect in the entire country.
In the above mentioned first case, while hearing the petition for protection from arrest of a man accused of stalking, tying up, gagging, repeatedly raping a minor school going girl (16) and as well as forcing her mother to not lodge a police complaint on the promise that he would marry the victim (when she will turn 18); the CJI led bench asked the man (a government employee) – ‘if he was willing to marry the victim.’ They further opined that, he should have thought of the consequences of ‘seducing and raping’ a minor girl. Comments from CJI and his bench was a kind of travesty, because, as per the law of land, ‘rape is a non – compoundable crime’. The bench went ahead and overturned the judgement of Bombay High Court (which had declined anticipatory bail to the accused) and provided him interim protection from arrest for four weeks. In the second case of Vinay Singh vs. The State of Uttar Pradesh, which dealt with martial rape and as reported by media, the CJI asked – ‘If a couple is living together as man and wife, the husband may be a brutal man, but can you call the act of sexual intercourse between a lawfully wedded man and wife as rape?’ These two comments not only legitimise the misogynist and patriarchal mindset, but also provide a moral boost to the perpetrator of heinous crimes. It sends a stern message that, ‘marriage is both solution and is a license for rape sans the subjective views of Women’.
As soon as the comments came out in public via different media platform, the entire progressive and concerned community was agitated. A group of more than 4,000 women’s rights activists, progressive groups and concerned citizens wrote an open letter to Chief Justice of India S.A. Bobde. They clearly mentioned that – he must apologise and resign. The letter also canvassed some recent comments/incidents, which can be seen in continuity with the recent remarks, and which certainly undermines the ‘humanistic agency’ of women. It says:
“Women in India continue to confront grossly patriarchal attitudes by persons in authority who propose ‘compromise’ solutions for rape……….We bore witness when your predecessor sat in judgement over an accusation of sexual harassment against himself, and lobbed false, defamatory attacks on the complainant and her family from the Bench of the Supreme Court. An appeal against the atrocious acquittal of a convicted rapist on the premise that a woman’s ‘Feeble No might mean a Yes’ was not admitted. You have asked why women farmers are being ‘kept’ in protests against farm laws and asked for them to be ‘sent back home’– again, implying that women lack the autonomy and personhood that men do. Then yesterday, you said, “If a couple is living together as man and wife, the husband may be a brutal man, but can you call the act of sexual intercourse between a lawfully wedded man and wife as rape.” Enough is enough. Your words, scandalise and lower the authority of the Court. From the towering heights of the post of CJI of the Supreme Court, it sends the message to other courts, judges, police and all other law enforcing agencies that justice is not a constitutional right of women in India. This will only lead to the further silencing of girls and women, a process that took decades to break. To the rapists, it sends the message that marriage is a licence to rape; and that by obtaining such a licence, the rapist can post facto decriminalise and legalise his act. We demand that you retract the words you stated in court on 01.03.21 and tender an apology to the women of this country. Propriety demands that you step down from the post of CJI without a moment’s delay.”
But notwithstanding the hue and cry over the CJI led bench’s utterly regressive comments, which tramples the scope of justice; a pattern of counter attack on the people who asked for explanation from CJI’S office was followed by Bar Council of India. They too issued a statement. In its statement, the Bar Council advocated complete impunity to the judges for their comments. At the same time, it questions the media for doing its job. It claims that there is “hue and cry” over remarks made by judges, which don’t even result in proper judgements, indicating that the public cannot hold judiciary accountable for their comments and behaviour. The statement notes:
“Why any comment (which is not part of the judicial order or judgment) should be allowed to be made the subject for attacking the judges/institutions without any basis? Comments made by the judges, not resulting in the orders, have no legal sanctity, why then to raise such a hue and cry and such comments?”
Without any shadow of doubt, it has to be duly noted that, comments made by CJI led bench cannot be and should not be termed as ‘final judgement’. But firstly, it is a common view that often Judgements are the culmination of observations made by the apex court while hearings and secondly, even if these comments should not be taken into the account – does that make these comments personal and sacred? The answer is a ‘Complete NO’. The apex court is a public institution to serve people and not anyone’s personal den. And proceedings too can be debated by public. Further, even if those words don’t make their way to the actual judicial order, such comments made by the senior-most judge of the country hold the potential of validating those who perpetuate similar views in society. As a learning student of history and social sciences, one thing I have learnt promisingly and it says – ‘Nothing remains spontaneous in history’. The praxis of violence (psychological or physical) starts with a theory couched in unjust views/words or thought processes; which often neglect and tramples the basic agency of humanity. One should stand firm against those views even if it comes out from the office of highest public institutions, because, in recent times from Kathua to Unnao to Hathras et. al. – we have seen how the basic humanistic agency of a women was rallied, bullied and brunt under the veil of injustice. And both public and private players were deeply attached to that heinous patriarchal and misogynistic suppression.
‘We The People of India’, often knock the door of judiciary for the justice and protection of our basic humanistic fundamental rights. The temple of our judicial system consist an imagery of Greek goddesses ‘Themis’. The statue shows her holding the scales in the left hand, a sword in the right hand and she is blind folded with a black ribbon. The sword symbolises fearlessness in the enforcement of justice. The blindfold indicates that – while giving a judgment (which contains the whole procedure from hearings to final judgements), the court is guided by only the evidence and the law, and is not swayed by any other factors, such as -political, personal, social and economic status of the litigants. But such comments from our judiciary reminds us of Roman Church, which in medieval times channelized the idea of ‘purgatory’, in order to wash away the heinous crimes conducted in the name of Church. And through which it maintained its supreme legitimacy and hegemonic institutional principles. According to Roman Church, after the death a soul goes to purgatory, which is a place somewhere between ‘heaven and hell’, and there it suffers for the sins committed in this world. And afterwards the soul goes to heaven. The Pope duly issued promises to the people in lieu of their services and payments towards the Church (under which they can break laws created by Church itself and even can go against other Christian sects), with which they will escape purgatory and straight away go to heaven. But we live in a modern times and law of land is guided by the Constitution and under the watch of goddesses of Justice and not Popes. Purgatory cannot and should not be escaped in lieu or under a grab of ‘marriage option’ to a person who either rapes a minor or his wife. Rape remains a horrendous crime and should be dealt both through actions and deeds.
According to Crimes in India Report (2019), published by National Crimes Record Bureau (NCRB) – ‘IN EVERY 16 MINUTES A WOMEN IS RAPED IN INDIA’. So, apart from what the Bar Council of India thinks, the comments made by CJI led bench warrants an apology to this nation. India was carved out by the argumentative traditions, not every comment or speech during our Constitutional Assembly Debates, was enshrined in the Constitution, but, it duly channelized us towards the idea of India. And the formation of Judiciary remains a crucial part of that process. An apology on the occasion of Women’s day will send a strong message from CJI and his bench. It will not diminish theirs stature but will strengthen it immensely. And in doing so, they will not only empower women across nation, but all the young law graduates and youths in a positive way. Words create and destroy our psychology and the due apology will allow every section of our society to understand the idea of feminism or women’s movement across the world.
For the founding fathers and mothers of India – political independence sans social and economic justice and equality was never perceived as true independence/swaraj. On the eve of women’s day, I would like to quote Hansa Mehta, a lady who was representing Bombay during the course of Constituent Assembly Debates. She duly opined on the issue of women’s rights and dues:
“We have never asked for privileges. What we have asked for is social justice, economic justice and political justice. We have asked for that equality which alone can be the basis of mutual respect and understanding and without which real co – operation is not possible between man and woman”.
To conclude Happy International Women’s Day to those who are concerned. Everyone should realise that women are human too and it will be ultimately followed up by – Justice, Equality and Fraternity.
Dr Biplove Kumar Assistant Professor, History