Unbecoming of CJI

Some remarks recently made by the chief justice of India, K G Balakrishnan, pertaining to rape cases are inappropriate and unbecoming of his position. The CJI said that due regard must be given to the personal autonomy of a rape victim so that she can decide whether she should marry the perpetrator or choose to give birth to a child conceived after the rape. The implications of the statement are disturbing and go against the letter and spirit of the law which prescribes stringent penalty for rape. Rape is a violation of the woman’s personality and inflicts immense physical, emotional and psychological damage on the victim. The courts have in the last many years increasingly realised this and made trials in rape cases less traumatic for victims and more effective in bringing the culprits to book. Many rulings have covered fresh ground in the interpretation of the law. But the CJI’s view goes against this trend.

The law does not envisage and allow any compromise in a rape case. A judge cannot go beyond the law and take a position that actually weakens it. The CJI’s view dilutes the gravity of rape as a crime. The perpetrator of rape should be punished, and not rewarded with marriage. And the rape victim should not be punished with marriage to the person who violated her. Marriage cannot neutralise the crime. A marriage is a relationship based on love and respect, which are not present in rape. And the CJI’s views are irrelevant in cases of gang rape, rape within marriage and homosexual rape. Village panchayats sometimes prescribe marriage as a compromise solution in rape cases. But that cannot be the CJI’s idea of justice. He also said that lawyers and social activists should not take a paternalistic approach in taking decisions for the rape victims. This may be interpreted to mean that others are more serious about filing and following up rape cases than the victims, which is untrue.

The CJI was not on the bench when he made the remarks, but his views can influence judicial thinking, especially in lower courts. The comments show that he himself is not free of paternalistic and retrograde views on a serious offence. They are especially jarring when the government is planning to make the laws regarding rape more comprehensive and stringent.