Representative image of judgement.
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It cannot be denied that patriarchy and misogyny dominate the sentiments, thinking and conduct of large sections of society. They find expression in various ways. But some sections of society should provide guardrails against them and ensure that gender equality and gender justice are upheld. The judiciary is the most important of such sections, but there are instances when representatives of the judiciary fail the institution and society in matters concerning women. Some rulings and observations of the Allahabad High Court should be seen in this light. Justice Sanjay Kumar Singh’s recent decision to grant bail to a rape accused, on the grounds that the “victim herself invited trouble”, and the observations he made in the ruling are shocking and regressive. They go against the best norms of jurisprudence. His comment that the woman’s visit to the house of the accused after consuming alcohol was “inviting trouble” amounts to blaming the victim for the crime.
The judge’s remarks violate the letter and spirit of the law and go against the precedents laid down by other courts, including high courts and the Supreme Court. In sexual assault cases, including rape cases, the law presumes absence of consent when the victim testifies so. The law demands that the scrutiny should be on the conduct and actions of the accused and not on the victim. Many rulings interpreting Section 114A of the Indian Evidence Act have made this clear. In the instant case, the judge was actually blaming the woman and telling her that she earned or perhaps deserved the assault.
The law does not allow a person to sexually assault a woman in any condition or in any place or at any time. Questions about her educational qualifications, and whether she was drunk or went of her own accord, are irrelevant. It is unfortunate that the judge did not have the basic sense of this law and gave vent to some common patriarchal notions entrenched in society. There is a trend in some sections of society of making a return to these notions, but judges, who are sentinels of the system designed to protect women against those notions, should not validate them with their words and rulings.
This is not an isolated incident. A few days ago, another judge of the Allahabad High Court ruled that groping a girl, pulling her pyjama strings, and dragging her away did not constitute an attempt to rape. In February this year, the same court granted bail to a rape accused on the condition that he marry the survivor within three months. Such rulings and observations undo the gains made in law through decades of struggle for gender justice and equality.