CJI’s remark smacks of patriarchy, gender insensitivity: Justice Deepak Gupta

The CJI had during the hearing of a rape case, asked the perpetrator if he would marry the survivor

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In a recent interview with journalist Barkha Dutt on Mojo Story, about the comments made by CJI SA Bobde asking the alleged rapist if he would marry the survivor, former Supreme Court judge Justice Deepak Gupta said that such remarks were deeply patriarchal and insensitive.

“This comment was very unfortunate. It smacks of a very patriarchal way of looking at things, it is gender insensitive”, he said. “I am just visualising. Probably it was argued that they were in love and hence, the sex was consensual. Even if we assume that, if you want to ask someone, you ask the woman if she is willing to marry him. You do not ask the rapist if he is married willing to marry the victim. It was not called for and it was very insensitive”, said Justice Gupta.

He also remarked that probably it was not meant in the way it was said, because the CJI clarified that he does not intend to force the alleged accused but “it should not have been said, courts should not give an impression that they are gender bias.”

Further in the interview, journalist Dutt asked Justice Gupta what legal recourse people are left with if the last bastion, the Chief Justice of India makes such insensitive statements. To this, the former top court judge said that he cannot say more than what he has already said.

“Social media is inside the courtroom. Everything you say inside the courtroom, gets tweeted nowadays, so judges need to be careful about the things they say. Judges, who used to be a little trigger-happy in what they wanted to say, now have to be careful in what they say.”

Women rights activist, Brinda Adige was asked why are we at all looking marriage in a rape case. “All structures in our country remain patriarchal. Irrespective of what they talk about- policies or schemes or special courts for women, all of that is an eyewash,” Adige responded, asking, “Why would marriage be looked at as the ultimate final settlement to restore the honour of the woman?”

Women rights lawyer Flavia Agnes also added, “This comment is so shocking. Judges repeatedly make such statements that reflect patriarchal mindset and how women are stigmatised after they are raped. Once the rapist marries the girl, he gets absolved of the offence of rape and this is ridiculous. To ask the rapist if he would marry her, is shocking and exposes the mindset of the judiciary.”

On March 1, the Supreme Court allegedly asked a government servant accused of repeatedly raping a minor girl, whether he would marry her. When the accused person’s lawyer said that he will get back to the court on this, CJI Bobde had remarked, “You should have thought before seducing and raping the young girl. You knew you are a government servant.”

He soon clarified, “We are not forcing you to marry. Let us know if you will. Otherwise, you will say we are forcing you to marry her.” Bar & Bench reported that the matter was taken up again after other cases, and the alleged accused reportedly replied, “I wanted to marry her. But she refused. Now I cannot, as I am already married. Trial is going on; charges are yet to be framed.” 

This exchange broke the internet with over 4,000 eminent and concerned citizens, women’s rights and progressive groups endorsing an open letter demanding the CJI to apologise and retract his remarks.

The letter also refers to another case where CJI SA Bobde 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?” The letter states that this 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.”

CPI (M) Politburo member Brinda Karat also wrote to the Chief Justice asking him to withdraw his remarks, “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,” she said. Karat 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.”


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