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.”

Related:

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SC stirs the hornet’s nest on rape by intimate partner
Women’s rights activists demand CJI’s apology for alleged comments

The post CJI’s remark smacks of patriarchy, gender insensitivity: Justice Deepak Gupta appeared first on SabrangIndia.

Justice Deepak Gupta, an esteemed and well-respected former Judge of the Supreme Court who recently retired spoke to Arfa Khanum Sherwani of The Wire, whereby he commented on the recent Vikas Dubey encounter which raised eyebrows in the legal community. Aside from the fact that Dubey was a gangster who was charged with several offences of murders, kidnapping and extortion in the last two decades, his elimination by encounter is seemingly an abuse of rule of law.

While speaking to Sherwani he pointed out how, after he allegedly killed 8 police personnel in a shoot out and absconded, the police went and vandalised and destroyed Dubey’s house. He pointed out how from the beginning itself the police refused to follow the law, “there is no procedure prescribed for destroying the house”. He also questioned why this was done knowing that a lot of evidence would be wiped out, “I mean there is a lot of conjecture – was it done to protect other people? Was it done to protect the truth from coming out?”

He further went on to explore the reason behind the encounter, “I really don’t have any answers to why he was killed. But police made up such a shoddy story, it seems they don’t even give a damn whether people think that we killed him or not”.

While he did place reliance on the future findings of the investigation panel or a committee to find out whether this was really an encounter or whether it was staged, he said, “indications are that this was not an encounter, he did not run away, he was killed.”

Expressing concern over how the encounter, rather the extra-judicial killing, was not condemned by any person of authority he said, “what worries me most, it’s not the fact that he has been brutally.. I mean the law has not been followed, but what worries me even more is that a lot of people holding positions in power have not only not condemned the incident but have sort of supported the incident by saying, ‘so what, he was a murderer, he murdered a policeman, so what?’”

About the role of the NHRC

When asked why the courts have been silent, why no suo moto cognizance was taken and why the National Human Rights Commission (NHRC) has also been quiet, he mentioned that since the petitions have already come to the Supreme Court, the question of suo moto does not arise, as it is not necessary but about the NHRC he said, “As far as the NHRC is concerned, I think no action has been take and I am sorry to say that I do feel that the NHRC was a body meant to protect human rights. It was a body created for the protection of human rights of the citizens. Yes, it does not have any adjudicatory powers, its powers are more recommendatory in nature, but somewhere down the line, the NHRC has now become almost as if it will not do anything. That’s my feeling.”

He further said that NHRC can even go to courts if it feels it has limited powers to handle a particular case, and ask the court to take appropriate action. He said that the NHRC “is not working to the extent we expected it to work for the protection of human rights”.

Why does a criminal deserve fair trial?

Arfa asked a very pertinent question that a majority of people, who have attributed legitimacy to the encounter have asked, as to why does a person with a history of crimes, including charges of a half a dozen murders on him deserve a fair trial in courts. Justice Gupta, who became a lawyer in 1978, said that back then he had taken an oath to uphold the Constitution. He read out the Article 21 from the Indian Constitution and said, “an encounter is not a procedure established by law. Killing by the police- if it is a killing. I am qualifying my word, that will have to come out later- but it’s not a procedure established by law.” He said it is illegal by itself and when we turn a blind eye to such an action we are doing a disservice to the nation and a disservice to the constitution.

He further said that there is no place for encounters in a civilised nation and most importantly, a country governed by rule of law.

He also pointed out and was proud of how Ajmal Kasab, who was a terrorist charged with killing hordes of people in an unprecedented terrorist attack in the city of Mumbai, was also given a fair trial, and he was hanged only after a trial that followed due procedure. He said, in this case as well the police could have pleaded for a special court or any other measure could have been taken to ensure speedy trial.

Speaking of the misuse of power that is blatantly apparent when such encounters take place he said that the police have always had the power and no matter what political party is in power, they will exercise control over the police and that will always remain. He pointed out how Supreme Court judgments, law commission recommendations etc have not been followed, police reforms are not in place, police are not trained.

He said, police are not bad but they “don’t regard brutality as something which is abhorrent to rights. They feel it’s a part of the game”.

When asked about whether encounters are celebrated because of long drawn legal proceedings which take years to culminate, he agreed that judicial proceedings take time but that can be mitigated only with the help of the government as the judiciary only gets allocated 0.57% out of the budget.

He also said that while the slow judicial process could be one reason but the portrayal and glorification of police taking law in their own hands in movies also has an impact on this perception that quick justice is desirable.

Speaking about custodial crimes he said that when a person accused of serious crimes is denied bail by due process of law, it is necessary to ensure that his rights are not infringed upon while he is in custody since our criminal jurisprudence follows the principle that every man is innocent until proven guilty.

He further said it needs to be established in young minds and people in general that rule of law is the basis of a democracy. He said what worries him more than the killing of Vikas Dubey is the flouting of the law. “we have to send a message as a society that the law must be followed. Even if the person is the most heinous criminal, the legal system cannot be hijacked either by the police or anybody else. Today it’s the police which has done it and hence there is a little element of justice. But tomorrow it could be a mob doing it,” he said.

He further said that most of the encounter cases get closed because the investigation is by the police themselves; there needs to be investigation by an independent agency or an independent committee.

About the impartiality and real independence of the judiciary he said that judiciary is not compromised but “there may some black sheep”.

All in all, he expressed his dismay over extra judicial killings and emphasized on the need to believe and have faith in the rule of law and the judiciary in which every citizen has a part to play.

The complete video can be viewed here.

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