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On the successful completion of my project, I would like to thank my project supervisor, Associate Prof of
Law Dr.(Prof.) Sharanjit Kaur who despite all of her pre-occupations, provided all the assistance I needed
for the accomplishment of this project and guided me while I tread on the tenebrous boulevard of ignorance.
Had it not been for her support I wouldn’t be able to grasp the cognizance of something as enthralling as
this.
I also thank honorable Vice-Chancellor, Dr. Paramjit S. Jaswal, and esteemed Registrar, Dr. N.K. Vats, for
their inexplicable greatness, to find time to educate us as and when they find an opportunity.
No work is complete with solo Endeavour, neither is mine. I thank each and every non-teaching staff of
RGNUL for their unconditional support. I would also like to convey my thanks to the Library Staff of
RGNUL.
I am grateful to The Almighty, who has given me enough strength and blessings to work hard and make it to
the best of my ability. Last but not the least; I thank my parents who have given me a chance to study in this
esteemed University, heaven for legal edification.
Thank you.
Yours Sincerely,
Anmol Mahajan - 18204
5th Semester RGNUL
RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PUNJAB
SUPERVISOR’S CERTIFICATE
Dr.(Prof.) Sharanjit Kaur, Associate Professor of Law Date:
This is to certify that the project report titled, ‘Regressive pathways followed by the High Courts in
Criminal Law matters - weakening the foundations of Gender Justice’ submitted to Rajiv Gandhi
National University of Law, Punjab in the partial fulfillment of the requirements for the paper of BA
LLB Fifth semester, is an original and bonafide research work carried out by Mr. Anmol Mahajan
under my supervision and guidance. It is further certified that no part of this study has been
submitted to any University for the award of any Degree or Diploma whatsoever.
Countersigned:
--------------------------------------------
BALLB (Hons.)
Introduction
Gender Justice is one of the basic considerations a judge has to keep in mind while
pronouncing judgments relating specifically to Criminal Law. In a country like India
where crimes against women are rampant, the only hope that the women of our
country have is from the courts. And when the courts take a regressive turn, the
horrors of the victims are unspeakable. The issue of gender justice and women
empowerment has been a concern in many nations and in many an arena for some
centuries. Though there has been formal removal of institutionalized
discrimination, yet the mindset and the attitude ingrained in the subconscious have
not been erased. Women still face all kinds of indignity and prejudice. The malady
sometimes pounces with ungenerous monstrosity giving a free play to the inferior
endowments of nature in a man thereby making the whole concept ridicule,
destabilizing the entire edifice.1
1
Hon’ble Justice Dipak Misra, Women Empowerment and Gender Justice, (2013) 3 LW (JS)
45.
fight to get the right to vote and the debate was absolutely ineffective and, in a way,
sterile. In 1792, in England, Mary Wollstonecraft in “A Vindication of the Rights of
Women” advanced a spirited plea for claiming equality for, “the Oppressed half of
the Species”. In 1869, “In Subjection of Women,” John Stuart Mill stated, “the
subordination of one sex to the other ought to be replaced by a principle of perfect
equality, admitting no power or privilege on the one side, nor disability on the
other”. On 18-3-1869 Susan B. Anthony proclaimed, “Join the union girls, and
together say, ‘Equal Pay, for Equal work’”. The same personality again spoke in July
1871: “Women must not depend upon the protection of man but must be taught to
protect themselves.”
Moreover, our criminal justice system carries within itself great challenges and
hurdles for the victim. According to a survey in the Aligarh District Court, the rate of
conviction in rape cases has toppled down from 16% in 1999 to 8% in 2003.2 The
situation was grimmer until the amendment of the Penal Code (IPC) and the Indian
Evidence Act in 1983. Various Amendments were introduced which shall be
discussed later in this paper. Still, the situation is very not very satisfactory.
2
[
Rape Law: A Case Study of Aligarh District Court; Dissertation by Mohd. Tanveer
Alam, Faculty of Law, AMU, 2003.]
3
[B
abu v. S
tate of Rajasthan, 2015 SCC OnLine Raj 5654.]
My assertion remains that though today our judiciary may be imparting so-called
gender justice it still lacks in gender-sensitive approach. The justice which comes to
the victim after facing a lot of humiliation no more holds good and as it is said that
“Justice delayed is justice denied”, the judiciary also needs to speed up the
procedure. The recent judgments in 2020 of various High Courts have shown cracks
in the gender-sensitive approach of the Judiciary which it is meant to imbibe. 4
A recent judgment of the Karnataka High Court spurred a nationwide campaign
because of the extremely sexist and misogynist remarks of the court. On June 22,
the Karnataka High Court speaking through Hon’ble Mr. Justice Krishna Dixit
granted anticipatory bail to one Mr. Rakesh B, who was accused of raping a woman
on the false promise of marriage. M. Rakesh B. had moved the High Court under
Section 438, Cr.P.C. for advance bail on being accused of committing offenses
under Section 376, 420, 506 IPC and Section 66-B IT Act.5
In the bail order, the court recorded a range of stereotypical notions and rape
myths and cited them as ‘reasons’ for granting the accused bail. The court observed
that it is ‘unbecoming of an Indian woman’ to fall asleep after having been
‘ravished’. Further, the court commented that the victim went to the office late at
night and did not object to having drinks with the accused. While the details on
facts of the case are not available, yet I would humbly like to submit that the
Hon’ble court in its order has failed to understand the nature and impact of sexual
4
ibid.
5
Karnataka
HC judge gives masterclass on misogyny, claims Indian women don't
sleep after 'being ravished', Free Press Journal, Jun 25 2020.
violence on women. Instead, it has relied on rape myths and stereotypes in
granting the accused bail.6
To establish that a prima facie case is not made out against the accused, the court,
while commenting about pre and post-rape behavior of the survivor, observed that-
“why she went to her office at night ie., 11.00 p.m.; she has also not objected to
consuming drinks with the petitioner and allowing him to stay with her till morning; 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” (Para 3c)
“the version of the complainant that she had been to Indraprastha Hotel for dinner and
that the petitioner having consumed drinks came and sat in the car, even if is assumed
to be true, there is no explanation offered for not alerting the police or the public about
the conduct of the petitioner;” (Para 3d)
In less than 100 words, the court packaged a range of stereotypical typical notions
and myths about rape survivors- first, that a woman does not fall asleep after being
raped. (Rather she must be completely devasted and broken). Second, that a
woman must immediately report her violation and the implication is that she is
lying if she does not immediately report. Third, that a woman who drinks and
ventures out late at night with the petitioner has consented, and fourth, that Indian
women, as opposed to western women, are shy, submissive, and obedient. Their
sense of violation is more than western women.7 During the hearing the court had
6
Jennifer Temkin and Barbara Krahe, Sexual Assault and The Justice Gap: A Question of Attitude 32
(2008) as cited in Mrinal Satish, D
iscretion, Discrimination and The Rule of Law: Reforming Rape
Sentencing in India (Cambridge University Press, 2017) Pg. 106
7
Surbhi Karwa, T he Burden of Being an ‘Indian Woman’: Karnataka High Court Bail Order and Rape
Myths, The Leaflet, Jun 29 2020.
reportedly, expressed reservation about the genuineness of the case, wondering
about the delay in registering a case as well as why the alarm had not been raised
when the man got into the car, or why the woman had voluntarily had alcohol with
him.
Though the misogynist statements were later expunged from the judgment, but it
does tell volumes about the patriarchal notions still prevalent in the judiciary
especially when it comes to criminal matters. In courtrooms across the world,
sexual assault survivors often face trials that aim towards making women feel
responsible for the crimes committed against them. There have been instances of
how the courtrooms, even after acknowledging the crime of the accused, would
award punishment that is often trivial and insensitive to the sexual assault
survivors.8
However, this is not the first time that the courts have relied on rape myths and
gender stereotypes in rape adjudication. From denying a tribal girl justice on the
ground of her lack of resistance and physical injury to declaring ‘no may mean yes’,
Indian courts have a history of burdening women to act as per gendered notions of
‘Indian women’, a shy, submissive, devasted rape survivor who will choose death
over ‘ravishing’ her ‘honour’.9
Ratna Kapur has argued that Indian courts view a typical rape victim as ‘chaste,
pure, monogamous, honorable, and confined to the private/domestic sphere.10
Testimony of a ‘Hindu, a virgin daughter or loyal wife’ would be more believable in
courts than a woman whose sexual behavior is inconsistent with the dominant
values and norms.
8
ibid.
9
Tuka Ram v. State of Maharashtra (1979 SCR 1 810).
10
Ratna Kapur, Erotic Justice: Law and the New Politics of Post colonialism (Cavendish Publishing 2005)
Pg. 34.
The Supreme Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat created an
entire ready-to checklist of supposed qualities of ‘Indian Women’ which make her
testimony more reliable than ‘western women’.11 Court held that a girl or a woman
in the traditional society of India would be reluctant to even admit her rape, she will
be conscious of being looked down upon and ostracized from society. She will be
fearful of losing the respect and love of her loved ones, she would fear their taunts.
She will fear being considered promiscuous. And thus, except for urban
sophisticated educated women, Indian women will be shy and reluctant in reporting
rape. Opposed to this, the court prepared a list of supposed qualities of ‘western
women’, who, in the opinion of the court, are more likely to file false cases. Court
held that Western women may be ‘gold diggers’, they may act out of jealousy or
vengeance.
The law regulates relationships between people. It prescribes patterns of
behaviour. It reflects the values of society. The role of the court is to understand the
purpose of law in society and to help the law achieve its purpose. But the law of a
society is a living organism. It is based on a given factual and social reality that is
constantly changing. Sometimes a change in law precedes societal change and is
even intended to stimulate it. In most cases, however, a change in the law is the
result of a change in social reality. Indeed, when social reality changes, the law must
change too. Just as a change in social reality is the law of life, responsiveness to
change in social reality is the life of the law. It can be said that the history of law is
the history of adapting the law to society's changing needs. In both constitutional
and statutory interpretation, the court is supposed to exercise discretion in
determining the proper relationship between the subjective and objective purposes
of the law.12
11
(1983) 3 SCC 217.
12
Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188 : (2014) 1 SCC (Civ) 51 : 2013 SCC OnLine SC 946
at page 197.
13
Benjamin N. Cardozo, The Nature of Judicial Process, Yale University Press, 1921.
14
J ohn Chipman Gray, T he Nature and Sources of the Law, Edited by - Roland Grey, The American
Political Science Review Vol. 5, No. 4 (Nov., 1911), pp. 645-647.
everyday practices of the courts as well as while rendering decisions with respect
to women and ancillary issues and concerns. The male-dominated court [ From the
Judge to the clerical staff, and from the advocates to the litigants, it is mostly the
males who occupy dominance in terms of numbers. A minuscule number of
women Judges could be found in the courtrooms and their number reduces
further as one moves from the lower judiciary to the higher courts.] often if not
hostile is ignorant to the women’s troubles and apprehension.15 [ According to
Flavia Agnes — women when in the courts, whether as a part of the system or as a
victim is neither given respect and in most cases seen with contempt.] According to
Advocate Shalu Nigam “The analysis of everyday proceedings in the misogynist
courtrooms reveals the manner in which sexism operates and is reinforced,
post-formed and reiterated in daily decisions, orders, conversation, jest, reasoning
and assumptions based on the ideology that subjugates women despite of the fact
that the Constitution of India guarantees affirmative provisions in favour of
women.”16
Hence, it is important for us to understand that this judgment does not only tells
us where we stand on the scale of societal gender equality, but also that there are
millions of women who are denied justice from various courts due to the deep
settled patriarchal notions of the judiciary. It is not to be understood that the
entire judiciary works this way, but the majority of the courts operate in this
fashion.
Thus for gender sensitization, positive judgments need to be highlighted. The
judges need to be extremely careful while making observations with regard to
women empowerment and the role of women in family and society. To achieve
this it is required to provide the honourable members of the court with regular,
15
Samreen Hussain, P atriarchal Judiciary as Harbinger of Gender Justice in India, 11 RMLNLUJ (2019)
34 at page 35.
16
halu Nigam “Fighting for Justice in Patriarchal Courts” (2009), the Economic and Political Weekly,
S
44, No. 14.
relevant, and up-to-date domestic and international literature in the fields of
gender- and sex-based discrimination, domestic violence, sexual assault, child
abuse, and family law (child custody, alimony, child support, and parental rights)
related to evidence-based best legal practices. 17
Gender and Judiciary: Selected Reading and Recommendation from Bosnia and Herzegovania,
17
ADCFA, (2014).
Concluding Remarks
It is common knowledge that despite constitutional safeguards, statutory
provisions, and a plethora of pronouncements to support the cause of equality of
women, changes in social attitudes and institutions have not significantly occurred.
But, there has to be total optimism to achieve the requisite goal. It is necessary to
accelerate this process of change by deliberate and planned efforts so that the
pernicious social evil of gender inequality is buried deep in its grave. Laws written in
black and white are not enough to combat the evil. A socially sensitive judge is
indeed a better statutory armour in cases of crimes against women than penal
statutes.
Awakening of the collective consciousness is the need of the day. A problem as
multifaceted as women's self-actualization is too important to be left to a single
section of the society. This responsibility has to be shared by the State, community
organizations, legislators who frame the laws, and the judiciary which interprets the
Constitution and other laws in order to give a stimulus to the legal reform in the
field of gender justice and to usher in the new dawn of freedom, dignity, and
opportunity for both the sexes equally.
These rape myths and stereotypical notions have put us ‘Indian women’ under the
burden of acting like supposed ‘Indian women’. We should resist to protect our
virginities, resist even if sometimes it means death. Our honor is our most
important jewel, we should be ravished and act devastated on being raped.
Don’t show too much confidence in reporting rape, but show some emotions
because you are devasted. But don’t show too much emotion else you will be
considered ‘too emotionally unstable’ under section 280 Cr.P.C. Don’t report too
soon, Indian women are reluctant in reporting rape, but don’t take too long also in
reporting. If you are a Dalit woman, differently-abled woman or poor woman, you
also have to especially act according to those statues.
Perhaps a handbook on guide to being an ‘Indian women’ as per Indian courts can
be developed?
Indian courts have historically failed women in rape adjudications. This case
although disappointing but does not come as a surprise. It is yet another reminder
that we urgently need to re-imagine our judicial education and judicial training in
creating a gender just judiciary.