An Analysis of How Judges Are Not as Independent as We Hope and How That Affects Women
Chandra Lekha, O.P. Jindal Global University
Law and society have always been two entities so innately entwined that they constantly overlap and feed off of each other. The Indian legal system is not an exemption to this. Through the course of 70 years of India’s independence, the courts have delivered many landmark judgements which have changed the course of how Indians live. On the flip side, there have been judgements which rather than going against the tide of society when needed, have reinforced norms which tamper the growth of the nation.
One seems to forget that, despite trying to be unbiased, the judges of the courts are an undeniable part of the society and its norms. The main aim of this paper is to study the nexus between the law, the society and its products. In this process, I shall discuss three cases, namely Tukaram v State of Maharashtra, also known as the Mathura rape case, Bharawada v State of Gujarat and Shayara Bano v Union of India. Although they might not represent the full spectrum of the relationship between law and society, they throw some light on the difficult yet inevitable influence they have on each other.
We may not have personally witnessed these cases, but through various journals and articles, this paper tries to go back in time to understand the reasoning behind these judgements, the noise that surrounded them and its resultant impact. Such an observation would help us go beyond merely criticising or commending the judgement. It would help us understand the ‘whys’ and the ‘what ifs’ and also acknowledge, how the age-old patriarchal norms have been so normalised that any diversion, as simple as granting basic rights would seem inconceivable. Therefore, I ask: Is the judiciary really above the society? If not, why do we so confidently entrust it with the power to pave the society’s path? Lastly, can they both coexist in today’s times?
The Mathura Rape Case; The Assault Which Changed the Country
It was probably the first time there was public outrage and protests about rape and sexual assault in India. Mathura, a 14 maybe 16-year-old Adivasi orphaned girl was raped and forced into submission by two police men within the bounds of the police station. Today, facts beyond these basic details may seem unnecessary. It was a clear violation of a woman’s ‘honour’ as many would call it. Mathura was in love with a man and sought to marry him. Her brother, who vehemently opposed filed an abduction case which eventually landed her in custody where she was assaulted by the police. Mathura took her case to court and she did find relief in the Bombay High Court, but it was short-lived. An appeal to the Supreme Court acquitted the accused[1]. The highest court of justice failed her. The court and the public called her a liar; said she was used to having intercourse with her partner that she loved and that she never screamed for help so that must mean she had given her consent. ‘Unchaste,’ was the word slapped on her face by the court and the judges; the progressive ones, the ones who are supposed to know the good from the bad.
The laws related to sexual offences in the 1970s and 80s reflected a deep-rooted patriarchy[2]. They presumed consent and asked her to prove that there was no consent rather than the other way around. According to them, a girl like her did not deserve justice. After all, she was not what this country stood for then and in many ways, still doesn’t. She was everything an Indian woman or the ideal Bharatiya nari must not be. She went out and worked, she spoke to men outside her family and worst of all, indulged in intercourse before marriage. It is shocking how this bias is so entrenched in the minds of the people, judges included, that they failed to see anything beyond it. They failed to see a young girl, intimidated by a police officer’s power when they asked her to stay back at the chowki
I can’t help but trace this injustice back to the words of Kailash Vijayvargiya, a cabinet minister from Madhya Pradesh, commenting on the Nirbhaya rape incident in 2012. “One has to abide by certain moral limits. If you cross this limit, you will be punished.” This mind set begs the questions: What are these limits? Who set them? And why is it that women are always at the receiving end of this? If a woman does not go by this ideal then she is no woman at all! Not even the most ‘unbiased’ court in this country has a place for her.
My high school social studies teacher always told me, “You can’t change the society. Just learn to live in it.” But how could one live knowing that Mathura could have been me, my family or my friend! The judges, Jaswant Singh, Kailasam and Koshal; all men; did not feel the need to elaborate any further. It was simple. If a woman has intercourse before marriage, then she will jump at any chance she gets to be with a man even if all evidence shows that consent was not given. It does not matter who, for she is the desperate party and she is the mark of shame, although there has never been any clarity on who decided that women’s sexual lives would determine an entire society’s honour.
After the judgement, it felt like everything ended but it was only the calm before the storm. The storm came in the form of Upendra Baxi, a law professor from New Delhi who, horrified at the wrongdoings, penned an open letter to the Supreme Court, questioning their idea of consent in the judgement[3]. Following this, protests erupted across the country. On International Women’s Day in 1980, women from all over the country came out to support the lakhs of Mathuras who could not go even as far as filing a case after this judgement[4]. Their slogans; ‘Rape is a crime against civilisation,’ ‘Atyachar ab sahenge nahi (We will not bear this oppression.’ resonated in every street and every corner of the country.
The court might not have budged but the government did. The Criminal Law Amendment Act 1983 was introduced stating that, if the victim says there was no consent then it shall be presumed that there was no consent. But on an ideological level, what was this change responding to? The fact that the court was unacceptably unjust or that public protests were gaining too much ground? The fact that the women of our land deserve better or that if they did not act then their party would become unpopular and they might not be re-elected? The truth is that, it was never about Mathura to begin with. In this country, a woman’s ‘honour’ is anything but hers. Any dent to it is not a mere infringement of her body and her rights but a matter of the society’s wounded pride which would then be talked, debated and pried upon till the woman is not much more than a mere spectator in this ‘honour’ parade. The society and its institutions exert a kind of soft power which is rarely visible but penetrates into the daily lives of every single person and it is at instances like that of Mathura, that it rears its ugly head.
Manohar Lal Sharma, the attorney for the accused in the Nirbhaya rape case said, “Until today, I have not seen a single incident or example of rape with a respected woman.” These statements take me to the lesser known case of Bharwada Bhoginbhai Hirjibhai vs State of Gujarat[5]. This time around, it was as if the judiciary wanted to rectify the damage of the Mathura case. In this case, a man had harassed two underage girls and assaulted one of them. The ruling was in the favour of the victims, which is probably why no one ever cared to speak of this case but when one reads the reasoning behind the judgement, the true disgrace of this judgement reveals itself. The M.P. Thakkar, honourable judge states that, if a victim claims absence of consent, then we must believe her. For suspecting them of falsity would be to look at it through a ‘western lens’ and Indian women do not indulge in such accusations which would only bring them more disgrace. And that, Indian women, unlike their Western counterparts are not ‘gold diggers’ and do not suffer from any ‘mental deviations.’ He goes even further to state that, Indian women would not want to risk the honour of their family and also hamper their chance of getting married by coming forward to speak about a rape, especially if it was false.[6]
In today’s day and age, it is not difficult to see what’s wrong with this judgement. According to Justice M.P. Thakkar, primarily, a woman is to be presumed to be telling the truth because why would she risk her life and future this way? Not because her rights and her very being have been grossly violated and her word is the only evidence that she can provide and the only evidence that must matter. Secondly, the perspective with which a woman is looked at is highly questionable. The age old division between the perfect Indian woman and the promiscuous ‘Western woman’ is once again reaffirmed through the judgement. Based solely on this judgement, Indian women are to be believed because they are the good ones who stay in the kitchen and take care of their families while Western women are vulgar; wearing clothes which show skin ‘the wrong way’ or holding their heads a little too high. The judge implies that the woman should be believed not because something unjust was done against her but because an Indian woman would not lie about it. The respect is given not to the ‘honour’ of the woman, but to the patriarchal image which has been imposed on them. It logically follows therefore that if a female victim does not fall into this narrow trope, not believing her would be acceptable.
The truth is that, there is no difference between an Indian woman who was raped and a ‘western’ woman who was raped. The wrong here, is the rape, but what is seen instead, is the woman; her character, her past and her body. Hypothetically, if Mathura replaced the underage girl, she would not get the same protection because she is a deviation from the norm. She is not the ideal type; hence she is not what an Indian woman is like. The fact that a woman can be in love and make a personal choice to have intercourse with her partner seems unfathomable to this society. Her honour disappears and the fact that a court of law reiterates this makes one wonder whether, the judiciary is truly excluded from this internalised prejudice. If it’s not so, then is it fair for them to be the upholders of justice when the line between right and wrong is way too blurred in their minds and their perception of right is not even their own. It is something that has been handed over to them by the generations of people who have brushed past women, viewing them as invisible actors who have neither an opinion nor a say.
But not all judgements have been regressive. The specks of hope that a few rulings sparked have been transformative for women. One such case is the Shayara Bano v The Union of India & Others whose judgement undoubtedly felt like a new phase in both, the lives of Muslim women and the ever-lasting debate on the tussle between the rule of law and the rules of patriarchy. Triple talaq was the practice in Islam where a man could divorce his wife by pronouncing the word ‘talaq’ thrice. Historically, it had a recommended waiting period between each pronouncement but with practice, it became common to perform it in one sitting. Although frowned upon, this practice was not illegal under the Muslim personal law. This case challenging the legality of triple talaq was heard by a bench consisting of members of varying religions who ruled, with a 3-2 majority against the practice and held that it was not an essential practice in Islam and hence would not enjoy the Constitutional protection under Article 25. It also violated Article 14 which guarantees equality to all citizens considering men are put at a higher pedestal and enjoyed substantial advantages over women in the given dynamic[7]. The judgement was welcomed by many but at the same time received extreme backlash. The All India Muslim Personal Law Board was of the firm opinion that courts have no business in religious issues and that their attempt to solve religious and cultural issues is a slippery slope. The argument is not devoid of all sense. If the courts continue to tame religious conflicts, then what will religious freedom look like? On the other hand, as the enforcers of the rule of law, Courts are obliged to some extent to reiterate their superiority and legitimacy[8]. The role of a judicial authority is to safeguard the Constitution. Under this Constitution, the freedom to profess one’s religion is granted but not at the cost of the very principles the Constitution functions on which include the rule of law and equality. Unlike the abovementioned cases, in Shayara Bano, the court saw the woman as more than a man’s wife. Rather than labelling her with her gender, her religion, her past or any other distinction, they attempted to look at her merely as an individual who was being deprived of her rights.
That is not to say that the judgement was flawless but for once it felt as if the court did more than just feign ignorance or choose the easy way out because that is what has been done all these years. The majority bench refused to let dated laws and customs decide the fate of women who are no longer invisible actors in the shadows of their families, religions or cultural tropes. The correlation between the first two cases and the last case may seem odd to some. But the prime issue I wish to highlight is the influence of the stereotypical ‘societal norms’ in arriving at these judgements. Divorcing the main issues, we find that all three cases have one thing in common, the woman. Through the years, the woman has been a victim of nearly every bias that the society could impose on a person. The women being limited to the kitchen have had barely any rights until very recently. So much so that they weren’t even recognised as deserving of a share in the property till 2005. Such perceptions are reflected in these cases. When the judge called Mathura promiscuous and reasoned that such a woman could not be raped, he didn’t just discredit Mathura but every other woman who tried to take a step beyond what was expected of her. The Tukaram judgement, in my opinion was regressive not only for failing to believe a rape victim but also for pushing the woman back. ven after years of independence and promises of equality, with a single judgement, women were shunned again. It is as if to say; if we like you, we will protect you, if we do not then we will not stop till the last witch is hunted and burned.
The Bharawada case, boasting of progress did not do anything different. The only reason the girls got justice was because they were everything the society expects them to be. They did not speak too loudly and they carried their honour in their sexuality unlike Mathura. The Shayara Bano although extremely different from the rest, it made women feel like they could step out, that they could speak out if their rights are taken away and there was someone to listen.
The answer to whether we would ever have a clear distinction between the society and the judiciary and whether we could draw a clear boundary deciding where one ends and the other begins is difficult to answer. An India devoid of any traditions or culture would lead to it losing its very essence. But a blind obedience to a culture which has never been equal to begin with would be leading the country into further darkness. A promise of a better tomorrow must include a promise of reform and change.
As the popular saying goes, the only way out is through. The society and its norms are not timeless, we would have to learn to discard what no longer stands for what we are as a country and adapt to what is the needed norm. And the norm today is that people can no longer be defined by the labels placed upon them at birth and they are ought to be defined by what they choose to define themselves as and most importantly as people who are entitled to their rights. Rights today, must supersede the conservative norms. A tradition which would allow this must persist and whatever does not do so must be shed. The role of the judiciary should be to carry out and enforce this change. Their position as the guardians of the Constitution and the rule of law would only be justified when this is done. A close relationship between the society and judiciary where both feed into each other is not necessarily harmful. It helps give an identity to the laws and a validity to the age-old beliefs. But a law’s existence can only be justified when it enriches the individual; ever changing with time, instead of pushing them back into the very misery which they try to fight against.
Chandra Lekha is a student at Jindal Global Law School.
Photo Credits: Gurinder Osan/Hindustan Times
Notes:
[1] Tuka Ram And Anr vs State Of Maharashtra (1979) SCR (1) 810
[2] Basu, Moni. 2013. “The Girl Whose Rape Changed A Country”. Edition.Cnn.Com. http://edition.cnn.com/interactive/2013/11/world/india-rape/.
[3] Baxi, Upendra, Vasudha Dhagamwar, Raghunath Khelkar, and Lotika Sarkar. 1979. “AN OPEN LETTER TO THE CHIEF JUSTICE OF INDIA”. Pldindia.Org. https://pldindia.org/wp-content/uploads/2013/03/Open-Letter-to-CJI-in-the-Mathura-Rape-Case.pdf.
[4] Kaufman, Michael T. 1980. “Rape Case Reversal Infuriates Indian Women’s Groups; Assaults On Women Reported ‘I Was Appailed’ Class And Sexist Prejudice”. Nytimes.Com. https://www.nytimes.com/1980/04/20/archives/rape-case-reversal-infuriates-indian-womens-groups-assaults-on.html.
[5] Bharwada Bhoginbhai Hirjibhai vs State of Gujarat (1983) SCR (3) 280
[6] Ibid
[7] Shayara Bano and others vs Union of India and others (2017) SC 963
[8] Hirschl, Ran, and Ayelet Shachar. “Competing Orders? The Challenge of Religion to Modern Constitutionalism.” The University of Chicago Law Review 85, no. 2 (2018): 425-56. Accessed May 25, 2020. http://www.jstor.org/stable/26455913.
The Law Review Anthology 
Wonderful analysis. Compliments to the author for giving in-depth insight.
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