Unwarranted remarks by courts reek of the lack of judicial discipline and the rot in the judiciary at large.
The Controversial Remark
The judiciary is an institution which is held in high esteem not only by those within the system but even those outside. For the longest time judiciary has been seen as the last bastion for upholding and preserving the highly cherished values of liberty, justice and most importantly decency. However, recent events indicate otherwise. In an order by the Karnataka High Court a Single Bench went on to remark on the extent of saying “after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished”. Now, this remark prima facie seems crass, uncalled for and something without which everything would have been better off. The bail jurisprudence is a rather well-established domain of law with the general principle being that all cases are to be decided subjectively based on the framework provided by law. In the present case, the colourful language used was part of an order (Bail order dated 22 June 2020), wherein the general principle is to restrict the language of the order to the facts and circumstances of the specific bail application concerned without getting into speculation and sweeping statements which might adversely affect the trial and victim/complainant’s social standing, this principle has been overlooked. One must remember that judicial officers whilst adjudicating matters are at liberty to make observations pertaining to that particular matter however there is no carte blanche in terms of the remarks that can be made during the adjudication process.
The Role of the Courts
While this piece is not seeking to delve into the merits of the said matter but will definitely pontificate the dangers such callously worded judicial pronouncements can have on the judiciary and society at large. The High Courts in our country are the Apex courts for all the states (sometimes even more than one state under its jurisdiction) along with being courts of the record they have often been hailed as the protectors and promoters of fundamental rights against intrusive state action and civic apathy. Now the same courts whilst hearing bail pleas in sensitive matters like an alleged rape offence abandon their duty and disregard the judicial decorum which they ought to protect. The judicial officers of the higher judiciary carry an epithet of “Justice” prefixed to their name for the entirety of their lifetime, is this not a reason good enough for one to discharge their duty with utmost sincerity coupled with compassion, as Mahavir Tyagi said about the judiciary during the Constituent Assembly Debates “The Seat of Justice is the Seat of God”. The magnitude of the situation is only so severe because the said remark came in the form of a written order delivered by a Puisne Judge of the Hon’ble High Court of a fairly industrial and populous state in India. As mentioned earlier no references will be made to the merits of the said case since it is sub- judice but there is no bar from impugning certain remarks which strike at the very heart of the justice dispensation in this country. Judgements/orders/decrees as a matter of legal principle have to be made by judicial application of mind however in the present case it seems there has been a societal application of mind which is accompanied by prejudice and disdain for women who do not adhere to the supposed conventions and norms of the societal notion of morality.
The dangerous ramifications of remarks ridiculing the plight of the victim
Since the legal challenge to the order has been dealt with now, we can proceed to the practical ramifications such orders can have on the complainants when they are about to approach the court for justice. India has seen a huge leap of faith in the manner which sexual offences are dealt with after the Nirbhaya Case however much needs to be done in the domain of justice for victims of sexual offences due to the preexisting conditions in the society which leads to the stigmatization of the complainants of such offences, if the court which is a safe resort for the complainants/victims is to jump in the bandwagon of victim shaming and denial of such heinous acts where is the victim/complainant left to go. These claims can be substantiated by the low reporting of such heinous offences and an even lower rate of convictions. It is high time now that all of us must reflect on the sad state of affairs in the criminal justice delivery system and reach to a conclusion that sexual offences are rampant and there is not much that is being done about it and hope that this will be an isolated incident of judicial indiscipline which indulged in ridiculing the plight of the victim of such heinous acts.
(The author, Deep Dighe is a student of law at the University of Mumbai’s School of Law)