The Bar Council of India (BCI) has passed a resolution in connection with the recent barrage of criticism directed towards Chief Justice of India SA Bobde for his allegedly insensitive remarks in two cases of sexual violence against women by intimate partners. In their resolution, they have also singled out CPI (M) Politburo member Brinda Karat who had publicly raised objections to the CJI’s comments. Karat has also responded to the BCI’s resolution.
Several news portals reported an exchange between the Judge and the petitioner’s advocate whereby the judge has asked the petitioner if he would marry the minor girl, he was accused of raping. The girl had alleged that the accused was a distant relative who raped her and continued to stalk and threaten her. The accused had promised that he would marry the girl once she attains majority but he backed off from his promise hence, the FIR was lodged.
In yet another case of intimate partner violence, the CJI had, reportedly, commented, “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 husband and wife as rape?”
In the resolution passed, the BCI says, “A handful of politicians and some social activists are feeling elevated by criticising and making reckless comments against the Judges through Social and Print Media. In our opinion, such attempts are direct attack on independence of Judiciary.” They further added, “It has become a fashion for some motivated people to make personal aspersions against our Judges. If this trend is allowed to continue, the Institution will loose its sanctity.”
The BCI Press Release, issued on the letterhead of its President Senior Advocate Manan Kumar Mishra, demands immediate measures to stop “this practice of malicious attacks through Media or otherwise.” It adds, “Freedom of Speech and Expression cannot be stretched to the extent of maligning & weakening the Institution.”
Blaming the survivor
The BCI’s press release highlights how the girl in one of the cases was 16-years-old and therefore “not a minor as per existing law (under section 376 IPC) at the time.” It further argues, “She was very much able to give her consent”.
It goes on to make further misogynistic statements like, “It was a case of live in relationship, therefore, could not be a case of rape.” It shockingly tries to blame survivors in such cases saying, “The laws meant for protection of women are being misused flagrantly.”
Targeting Brinda Karat
The BCI has singled out CPI (M) Politburo member Brinda Karat for writing an open letter condemning the CJI’s words. In her letter she had said, “There is a prevailing retrograde social approach that the victim of rape is a ‘bad’ woman and if the rapist marries her, she gains respectability in the eyes of society. Comments of the apex court should not give the impression of supporting such approaches.” Karat had said that the message that comes across is that “a rapist can escape jail if after the crime he agrees to marry his victim whether she wants to or not”.
It is noteworthy that Karat was not the only person to criticise the CJI. Over 4,000 eminent and concerned citizens, women’s rights and progressive groups have endorsed an open letter demanding that the CJI apologise and retract his remarks of asking a rapist if he would marry the survivor and for condoning marital rape. The letter had called CJI SA Bobde’s remarks regressive, and said that ‘propriety demands you step down without a moment’s delay’. The letter said, “It fills us with rage that women bear the burden of having to explain the meaning of ‘seduction’, ‘rape’ and ‘marriage’”. On the question over intimate partner violence, the letter had said that the CJI’s comment “legitimises any kind of sexual, physical and mental violence by the husband” and “normalises the torture Indian women have been facing within marriages for years without legal recourse”.
Former Supreme Court Justice Deepak Gupta had also slammed the CJI’s comments in an interview to journalist Barkha Dutt saying, “This comment was very unfortunate. It smacks of a very patriarchal way of looking at things, it is gender insensitive.”
Brinda Karat responds
In her reasoned response to the chairman of the Bar Council of India, MK Mishra, CPI (M) Politburo member, Brinda Karat has raised serious issues related to the BCI’s ethics, orientation and conduct. Ms Karat had earlier raised questions, as have done several women’s rights activists over reported remarks of the Chief Justice of India (CJI), Justice SA Bobde, suggesting that a man accused for multiple rape attempts on a girl and woman should consider marrying her! The BCI has circulated a resolution dated March 4 adopted by the body that used questionable language against Ms Karat.
Countering this BCI resolution that uses derogatory remarks against herself, Ms Karat re-iterates her stance that such “comments made by higher authorities such as those made in the present case asking a rape accused whether he would marry his victim, have a most damaging impact on victims of crimes and in this case tend to dilute the enormity of a crime against a minor. Comments may not have legal sanctity but certainly provide legitimacy to retrograde social approaches, which I have mentioned in my letter. In fact, the Bar Council, if indeed it wanted to react, should have upheld the best judicial practices and standards and taken up the negative impact of such comments, with the Court concerned.”
Ms Karat questions the stance of the BCI wherein they have stated that ‘mere comments’ or ‘remarks’ made in passing have no legal sanctity, ‘why then raise such a hue and cry on such comments?’ She stresses that such remarks, coming as they do from powerful authorities empower the most retrograde elements of society.
Second, Ms Karat raises serious questions about the Bar Council resolution that speaks of a “written agreement” between the parents of the rapist and the minor girl. She asks, “Is there anything legal about such an agreement? Under which law? Is the Bar Council not aware that the girl tried to commit suicide? Is the Bar Council not aware that the girl refused the marriage offer? And also most importantly if such an agreement was made on behalf of the girl when she was a minor, once she became an adult is it not the bounden duty of the Court to ask her opinion first, before asking the rapist if he would marry her?”
She concludes that the BCI resolution shows no sensitivity at all towards the minor victim; in fact what needs examination is why and how such senior lawyers do not see the necessity of judicial processes, more so in cases of rape of a minor, to put the interests of the victim, not the perpetrator, at the centre of the process for justice.
Ms Karat also mentions in her open letter to the BCI that the Aurangabad High Court rejected the bail granted by the lower court and the fact that but for his appeal to the Supreme Court, he would have been arrested but for his appeal. However, the Supreme Court has given him protection for a month to apply for “regular bail”. Ms Karat’s questioning of this, she states is her opinion and the BCI has no business calling it “motivated.”
Ms Karat’s open letter also takes exception to the derogatory comments against the petitioner in making her appeal to the Supreme Court stating that this is an attack on her reputation which is objectionable. Finally, Ms Karat states that the comments by the Court, widely commented upon, were of a general nature, regarding the relations between a husband and wife or those in a live in relationship. Here again it is not disputed by the Council that the comments made were “however brutal the husband is… etc.” In other words, says Ms Karat, this is a general comment about husbands, which has the most grave implications for cases of domestic violence including marital rape. “Rape is a coercive act of sexual intercourse without the woman’s consent. It is true that there is no law against marital rape at present in India. The petition is pending before the Courts. However, for the apex court to make comments such as “however brutal the husband is” gives licence to brutality.”
Ms Karat has chosen not to respond to the “petty, personal allegations” made against her in the BCI resolution stating that “an individual’s record of work for women’s rights and justice for the oppressed should speak for itself. In this context the role of the Bar Council, a statutory body requires examination.”
Finally, Ms Karat has stood by the comments made in her earlier open letter against the remarks of the CJI made in open court.
The BCI resolution may be read here:
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