There is a need to fathom systemic corrections to ensure that individual judges (not just the males among them) do not exhibit such misogynistic and stereotypical viewpoints
Justice Sanjay Kumar Singh, a sitting judge of the Allahabad High Court, has obviously not seen the award-winning and critically acclaimed 2016 film, Pink, starring Amitabh Bachchan in one of his notable roles in the second innings of his film career.
If he had the good sense to view this film, he would have certainly reconsidered the opinion, he passed as a judicial decree and observed simultaneously, that accompanying friends to a bar and thereafter continuing to party elsewhere, was “inviting trouble”.
Observation draws flak
Justice Singh also observed in a widely criticised observation while granting bail to a rape accused, that the victim was “responsible” for the incident because she got intoxicated and agreed to visit the house of the accused to rest.
Also read: SC stays HC’s ‘grabbing woman’s breast not rape’ ruling, slams judge
It is also most likely that his colleague in the same court, Ram Manohar Narayan Mishra too, has not watched Pink. It must be reminded that this searing film is an unambiguous indictment of patriarchal society heads with ‘right’ political connections.
These people, the Bachchan and Tapsee Pannu starrer correctly depicted, often are backed by willing allies in the police machinery. This enables them to invert sexual offences and frame female victims while allowing perpetrators to go scot-free.
If Justice Mishra had seen Pink, a piercing examination of the legal process and theories presented in court, he would not make the blasé differentiation between the stage of preparation to commit rape and the actual attempt to commit the observation.
Citing irrelevant facts
The case before Justice Singh was a singular retake of the plot of Pink; in the film, there were four young women and men around whom the central incident was set. In contrast, in the case before the HC judge, there was only one woman whose accusation is now to undergo further judicial scrutiny against one man – someone who she accompanied in good faith after feeling somewhat inebriated.
In granting bail to the accused, Justice Singh cited some facts that had no relevance to the accusation: That she was a major, an MA student, a resident of a PG accommodation, someone who went to a bar with friends, stayed till 3 am and thereafter voluntary agreed to go with the applicant for bail.
At every step, the judge endorsed several contentious lines of reasoning, either of his own accord or based on arguments of the applicant’s/accused’s lawyer. Each of these formulations was a value judgement and presented as evidence of improper social conduct and suggestive of a woman of easy virtue.
It begins with being a resident of PG accommodation, which implicitly broadcasts the theory that occupants of these do not lead a socially disciplined lifestyle and are given to casual relationships, likely even sexual in nature.
Questionable contention
Just like in Pink, this girl going with friends to a bar, drinking alcohol, staying late, making new friends and then agreeing to move elsewhere meant that she/they would be ‘agreeable’ to a sexual dalliance if the accompanying male(s) so desires.
Justice Mishra, whose judgement was suo motu taken cognisance of by a Supreme Court Division Bench of Justices BR Gavai and AG Masih and thereafter stayed, made the obnoxious statement that “grabbing of breasts” and “loosening of pyjama string” does not amount to a charge for an attempt to rape.
Also read: Allahabad HC: Grabbing breasts, breaking minor’s pyjama string does not amount to rape
The judge questionably contended that it would be more appropriate to charge the two accused under the minor charge of assault or abuse of a woman with intent to disrobe or compelling her to be naked and relevant provisions of the POCSO Act.
In Pink, the film’s makers had very famously secured the character of the veteran lawyer portrayed by Amitabh Bachchan, to begin his famous closing arguments with one word, ‘No’. This was the single word with which he began his final arguments, reminding the court that at every stage the four women, especially Pannu’s character, had specifically stated ‘no’ to every attempt to initiate a sexual relationship.
The right to refusal
“No is an entire sentence,” Deepak Sahgal, the ageing attorney had observed before going on to elaborate that every woman, in any relationship, casual friend, girlfriend, wife or even a sex worker, had the right to refuse a sexual relationship.
The central argument in the film was that no woman’s social and professional profile could be a reason for construing that ‘such’ a woman (or man) did not have the right of refusal, or saying no to a sexual overture.
The film also made a case that no woman’s (or man’s) consent could be taken for granted because of any sequential situation. This was presented by the accused in the case before Justice Singh, as that of a woman, going to a bar with friends and drinking till the early hours of the morning.
Thereafter, because she voluntarily accompanied the accused to a location of his choice, she forfeited the right to refusal is the accused’s contention, which is unfortunately accepted by Justice Singh.
Disagreeable observations
It is essential for the judiciary at all levels in India to be gender sensitive and not be guided by stereotypes and preconceived notions. But, it is all the more unacceptable that High Court judges make such disagreeable observations.
Justice Singh in fact, had in another similar case granted bail to the accused, also a man. In matters of rape, he contended, that while the prosecutrix’s statement should be given primary consideration, it cannot be ignored that there can be situations where she levels false accusations.
Also read: HC grants bail to man accused of raping minor upon promise of marriage
The apex court’s aforementioned Division Bench stated that although they would typically not have stayed a decision at “such an early stage”, the comments of the HC judge, which displayed “total insensitivity by the judge”, necessitated the stay.
Systemic corrections
It would be fitting if the SC similarly stays Justice Singh’s judgement, in the event of the apex court reviewing it, either on its own accord or in response to a plea that may be filed before it.
But, the matter of putting down anti-women attitudes in the judiciary should not rest with individual stay orders. There is a need to fathom systemic corrections to ensure that individual judges (not just the males among them) do not exhibit such misogynistic and stereotypical viewpoints.
Above all, all judges hearing matters of sexual offences must recognise the right to refusal and that, “no, means NO”.
(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal.)
