When courts fall into the patriarchy trap

When courts fall into the patriarchy trap

02.02.2021

A judge’s problematic rulings in some POCSO cases have sparked a controversy but when it comes to sexual crimes, verdicts often reflect chauvinist mindsets

Himanshi Dhawan & Amulya Gopalakrishnan | TNN

Recently, the Nagpur bench of the Bombay high court observed that touching a 12-yearold girl’s breast and attempting to undo her salwar did not count as sexual assault under the POCSO Act because there was no “skin-toskin contact”, but would fall under outraging the modesty of a woman, Section 354 of the Indian Penal Code. The same judge had also said that a 50-year-old man who held a five-yearold girl’s hand and unzipped his pants had not committed sexual assault. Though the Supreme Court stayed the acquittal in the first case after the attorney general warned of a ‘dangerous precedent’, these judgments appalled many people.

But is this judgment really such an outlier when it comes to crimes against women, or is it an extension of the way the courts have looked through men’s eyes?

“Judges are part of the same society as we are and that society is patriarchal. Objectivity is the greatest myth in law and some judges bring their beliefs about ideal family, ideal woman, ideal victim, into the reasoning table,” says Jhuma Sen, professor at Jindal Global Law School and co-founder of the Indian Feminist Judgment Project. And it is not about the judge alone, which in the POCSO cases was a woman, it is an entire ecosystem of practices. “Lawyers make gobsmacking arguments, judges pick it up and validate them through their judgments and so on,” she says.

MAKING THE WOMAN MARRY OR TIE RAKHI TO RAPIST

From a patriarchal point of view, sexual assault is only a raid on a woman’s honour — which explains the judgments that remedy this ‘dishonour’ by yoking rape victims to their rapists. To end her ‘shame’ (imposed by others) and fit into the fold of a family, she must give up on justice.

A few years ago, the Madras High Court suggested mediation between a rape victim and the man accused of raping her, aiming for a solution with “no victor, and no vanquished”, even citing the “happy conclusion” of marriage in a previous instance. Last year, the Madhya Pradesh high court ordered a man accused of molestation to get a rakhi tied by the victim, and “promise to protect her for all times to come”. These orders trivialise the crime committed by one person upon another, the violation of the woman’s bodily integrity and autonomy, and try to enfold it in the logic of traditional family values. Any reconciliation that perpetuates injustice is a sham.

In the last decade or so there have been many gender-friendly judgments and rape jurisprudence has seen a marked change, says author and academic Mrinal Satish. But even when the judgments around rape or sexual assault are in favour of women, patriarchal reasoning has very often been used to justify it, he adds.

DECIDING WHO IS A GOOD WIFE

“It is impossible to miss the big fat footprint of brahmanical household and Hindu family traditions that get the stamp of authenticity in matrimonial law jurisprudence,” says Sen. For instance, not wearing a mangalsutra has been frowned upon. An Andhra Pradesh high court judgment from the 90s observed that the wife removed mangalsutra even though the marriage was subsisting and her husband was alive. “Such an act is not expected from an educated Hindu Brahmin woman” said the court. One clearly gets what the belief system of the bench is, says Sen. Last year, the Gauhati high court granted divorce to a man saying that his wife’s refusal to wear a shakha and sindoor amounted to a refusal to accept the marriage.

And it’s not just the symbols that cause problems. A few years ago, in Narendra v K Meena, it was held that a wife’s effort to separate the (Hindu) husband from his parents constituted an act of cruelty. Last year the Kerala high court drew nourishment from this judgment for a similar order, says Sen. She places part of the responsibility on unwieldy ‘cruelty jurisprudence’ by the courts.

HER BEHAVIOUR IS ON TRIAL

When it comes to sexual assault and rape, “women are constantly put on trial”, says senior advocate Rebecca John. “There is an expectation about how women should behave and there is no such expectation from men,” she says.

The amendment to rape law in 2013 had made it perfectly clear that consent was crucial. It defined consent as an unequivocal voluntary agreement where the woman communicates her willingness by words, gestures or other communication.

And yet the courts often drag in the old mental frames about the victim’s appropriate behaviour. In the Mahmood Farooqui v state case, where the court said “a feeble no” suggested yes, the burden was again placed on the woman’s resistance being ringing enough, her previous attitude to him, and so on. It shifts the focus to what the woman didn’t do, rather than what the man did. “This is disrespectful to the offence and the journey of women who have faced this offence,” says John. “In the legal community centuries of patriarchy have played on your psyche so you don’t even realise what you are doing,” she adds. In 2016 the Supreme Court acquitted three men of gang rape, saying that the victim’s “conduct during the alleged ordeal is unlike a victim of rape and betrays somewhat submissive and consensual disposition”. Her roommate revealed her to be a sex worker; and so, her evidence, it was decided, could not be regarded as “the gospel truth”.

Last year, the Karnataka high court noted the “unbecoming behaviour” of an alleged rape victim who said she had fallen asleep, saying “this is not the way our women react when they are ravished”. “Is there a handbook which tells a victim how to behave after rape,” asks John.

“There is a long history of judgments that either elevate women to a devi or place her behaviour on trial. Both are problematic,” she says.

CONTROVERSIAL JUDGMENTS

Madras HC while ordering the rapist to mediate with the victim:

Even in Islam, Hinduism and Christianity, there are instances of solving the disputes in a nonbelligerent (manner). The result of it is very good because there is no victor, no vanquished.

Delhi HC while acquitting a rape accused:

Instances of a woman’s behaviour are not unknown that a feeble ‘no’ may mean a ‘yes.’

Gauhati HC granting a man divorce:

The wife’s refusal to wear ‘shakha and sindoor’ will project her to be unmarried and/or signify her refusal to accept the marriage with the appellant.

Karnataka HC while granting bail to a rape accused:

The explanation offered by the complainant that 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.

There is a long history of judgments that either elevate women to a devi or place her behaviour on trial. Both are problematic

— REBECCA JOHN LAWYER