K’taka HC’s bail order questioning morality of rape survivor prompts open letter from civil society
Karnataka High Court judge, Justice Krishna Dixit’s rationale for giving bail to a rape accused has rightfully drawn the ire of many citizens, civil society organisations, feminist groups as well as members of legal fraternity. In Rakesh B. V State of Karnataka, decided on June 22, 2020, the judge granted pre arrest bail to a rape accused while stating that the fact that the complainant fell asleep after the alleged crime is “unbecoming of a woman; that is not the way our women react when they are ravished”. The court also questioned why the complainant went to her office at 11 P.M; why she did not object to consumption of drinks (sic); why she allowed the accused to stay with her till morning.
Many including historian Ramchandra Guha, actor MD Pallavi and organizations like Stree Jagruthi Samithi, Mahila Munnade, All India Progressive Women’s Association, PUCL Karnataka are signatories to this letter.
The open letter addressed to the Indian judiciary, while expressing its dismay over the deeply patriarchal mindset reflected in the order says, “The articulation of this order has deeply disturbed and disappointed those of us who have been working over the past decades to uproot the discriminatory structures of patriarchy deeply embedded into all our social and political systems including the judiciary. The fact of the matter remains that despite all these efforts women who make decisions to live independently and make choices regarding their own lives, including their intimate/ sexual lives are still viewed as women with “loose morals and character”. It is one of the many aspects of the patriarchal Indian society that women live with on a daily basis.”
The letter identifies the rights of the accused to seek bail and the judicial discretion to grant the same. However, the letter notes that it is unacceptable that in the process of doing so, instead of looking at the legal merits of granting bail, a woman’s conduct has been judged on moralistic and misogynistic grounds that have nothing to do with the law. The letter also points out that by doing so the order “has pre-empted and prejudiced the investigation and trial virtually dismissing the allegations of rape indicating that there is no prima facie evidence based the character assassination of the victim.”
The letter further points towards the usage of the term “ravished” instead of the legal term “sexual assault”, blaming the woman for the delay in filing her complaint, although she did it the next morning and casting aspersions on the character of the woman on account of her behaviour being part of a continuing historical narrative which has legitimised different forms of violence be it domestic, sexual or economic and granted social if not legal impunity to the perpetrators of this violence.
The letter further says that this letter brings back memories of the disgraceful judgment of the Supreme Court in the Mathura case of 1972 whereby some policemen had raped a 15 year old tribal girl. In this case the apex court had upheld the Sessions Court order which acquitted the Accused, questioning the “moral” integrity of the 15 year old who they claimed had been “habituated to sexual intercourse”.
The letter further says that the order reflects the same patriarchal, classist and casteist mindset that wrote the Rameeza Bi and Bhanwari Devi judgements in the eighties and nineties. The order also undermines the culmination of the Nirbhaya case into the Justice Verma Committee which put in place a jurisprudence and practice of the law that is more in compliance with gender and which stated “Attitudinal changes to correct the aberration of gender bias have to be brought about in the institutions of governance to improve the work culture, and in civil society to improve the social norms for realizing the constitutional promise of ‘equality’ in all spheres for the womenfolk.”
The letter also draws attention to Article 15 and 15(1) of the Constitution that assures the equality of women and children and also of Article 51A(e) which states that it shall be the duty of every citizen of India to renounce practices derogatory to the dignity of women.
The letter also fears that guardians of law and order and the Constitution should not become guardians of women’s morality and behaviour. Whilst speaking up for the women, the letter states, “We will not accept that we are told time and again that “we ask for it” every time we choose to protest the violation of our bodies and our persona. We do not accept victim blaming and victim shaming when we are “punished” for “unladylike” behaviour like socialising with men, being out late at night or drinking alcohol. And we cannot accept when judicial officers abandon their role as Judges with constitutional obligation and responsibilities but instead express opinions that justify the worst of patriarchal norms and practices.”
The letter calls upon the higher echelons of the judiciary to take suitable action to self correct this blatant violation of women’s rights and dignity apart from the violation of the Constitution and expunge these toxic and misogynistic statements from the order and deliver one that is based on law and not on prejudice. Finally, the letter calls upon the judiciary to stand by women and other citizens in their struggle to build a more equitable, just and democratic society that shows zero tolerance to violence against women and all marginalised genders.
Courtesy : Sabrang