Pb & Haryana HC lets off rape accused
Hindutva mindset influencing higher judiciary too
By Faraz Ahmad
In the hype and build up over that charlatan of a godman Baba Gurmeet Ram Rahim Singh and his conviction on charges of raping two young inmates of his ashram, by a Panchkula court leading to violence and arson in Panchkula and adjoining Chandigarh by his disciples, the news of a horrifying judgment of the Punjab and Haryana High Court letting out three young men from evidently well off families convicted by a Sonipat court for serial gangrape of a young class fellow over a period of two years, on the specious plea that this would ruin their career, failed to attract the requisite attention of the media. Well off because they were pursuing professional courses in a private expensive institution the O P Jindal University in Haryana.
The shocking part is that the court has obliquely held the “promiscuity” of the victim responsible for the crime committed against her. In an age and time when numerous judgments of the apex court and several high courts, including this court has held the absolute right of the woman over her body even if she be a sex worker, in the sense that a forced sexual intercourse with a sex worker too amounts to rape and her being a person of “easy virtue” is no defence of the accused in such a situation, this is clearly regressive.
We had the judges here suggesting that the issue in this instance was not, repeat was not, “sexual violence” committed by the accused one of whom happened to be a close and intimate friend of the victim, “but of a generation which is unable to comprehend the worth of a relationship based on respect and understanding.” How condescending to the convicts! They are virtually demonstrating their paternal indulgence and benevolence towards the accused who in the judges’ perception on account of the current social condition, failed to “comprehend the worth of a relationship…”
The judges further observed, “We are conscious of the fact that the allegations of the victim regarding her being threatened into submission and blackmail lends sufficient diabolism to the offence, but a careful examination of her statement again offers an alternative conclusion of misadventure stemming from a promiscuous attitude and voyeuristic mind.” This on the girl’s complaint that the main accused her boyfriend Hardik Sikri who first developed intimate relations with her and photographed her in the nude then threatened and blackmailed her to submit to sex with the other two accused as well and soon they continued coercing her to submit to them over a period of two years, till she gathered courage to report this. Now the judges did not dismiss the main accusation of the victim for the trial court had conclusively and satisfactorily established the substance of the victim’s allegations. So the High Court went into promiscuity to covertly mitigate the gravity of the crime.
The court set them at large observing, “It would be a travesty if these young minds are confined to jail for an inordinate long period. Which would deprive them of their education, opportunity to redeem themselves and be a part of the society as normal human beings. Long incarceration at this stage when the appeal is not likely to mature for sometime is likely to result in irreparable damage…”
The judges also suggested counseling for the accused at AIIMS and a compensation of Rs 10 lakh to the victim to be jointly shared by all three. Every sentence, every word here smack of tremendous sympathy for the accused, without disputing the substance of the accusation leveled by the victim. There is also an implicit accusation in this on the victim condemning her as a person of easy virtue for whom a payment of Rs 10 lakh would suffice. That is shocking.
But is this not a one off judgment, to be taken merely as an exception, or to be ignored as the idiosyncrasy of two rather conservative judges?
It reflects the current social atmosphere created by the Hindutva forces led by the Rashtriya Swayamsevak Sangh (RSS) in which vigilante groups of various Senas go around chasing and attacking young women in Bengaluru for being seen at Bars or those social media trolls which implicitly justified the killing of Gauri Lankesh recently alleging that she drank and smoked.
There are only two notable achievements of Yogi Adityanath in his seven month tenure. Closing down the meat shops of poor Muslims and forcing them and Dalits out of honest livelihood and setting the UP Police upon young couples strolling in the parks, attacking them and video graphing the whole exercise to ingratiate themselves to their new Hindutva masters.
The submission of the bureaucrats or the Police officers to their political masters of the day can be understood though not justified, but if the judiciary too succumbs to the forces of Hindutva what remedy is open for someone seeking justice from this increasingly oppressive system under the current political dispensation?
But then the judges of the High Court seem to be guided by their superiors sitting in the apex court. A little before this judgment came the observation of two judges of the Supreme Court Justice Madan B Lokur and Deepak Gupta who held that marital rape is no rape. The highest judiciary of the country upheld Section 375 f the Indian Penal Code (IPC) which defines the offence of rape has an exceptional clause that says the intercourse or sexual act by a man with his wife, not below 15 years, is not a rape.
The learned judges further observed that, Parliament has extensively debated the issue of rape. Therefore it cannot be considered as a criminal offence.”
That the judges in these two instances seem to be influenced by the stand taken by the Central Government is evident from the submission of the Central Government in a case in the Delhi High Court to the bench of Justices Gita Mittal and C Hari Shankar wherein the petitioner’s counsel Colin Gonsalves argued that a married woman has the same right of full control over her body as an unmarried woman and that marriage license cannot be viewed as license for a husband to forcibly rape his wife with impunity.
To this Government counsel Monika Arora argued in an affidavit that “If all sexual acts by a man with his own wife qualify to be marital rape, then the judgment as to whether it is a marital rape or not will singularly rest with the wife.” This affidavit exposes the medieval mindset of this RSS patronized BJP government which believes in Manu’s edicts that the woman is a property of the Man with no right to decide what she wants. The whole Love Jihad campaign is a product of the same mindset which refuses to allow a woman the right to decide who she would befriend or marry. Sadly successive court judgments too seem to be coming round to this larger vision of the saffron brigade.