Unjust ‘Justice’ of Supreme Variety

“Will You Marry Her?” Chief Justice of Supreme Court asked a rape accused on 1st March. Justice SA Bobde, who was heading a three-judge bench, asked a 23-year-old man accused of raping a girl whether he would marry her. “If you want to marry (her) we can help you. If not, you lose your job and go to jail,” he said.

These atrocious and shocking comments were made in a horrific case especially considering accusations the girl – who was 16 at the time of the alleged rapes in 2014-15 – had made against the man, a distant relative. He was “accused of stalking, tying up, gagging, repeatedly raping a minor school-going girl, and threatening to douse her in petrol and set her alight, to hurl acid at her, and to have her brother killed” and “the rape came to light when the minor school-going victim attempted suicide”.

The accused, who is a government employee had been granted anticipatory bail by a lower court after he pleaded that he would lose his job if arrested. But the Bombay High Court called the order “atrocious” and cancelled his bail. The man then approached the Supreme Court – which granted him protection from arrest for four weeks and there the infamous exchange took place between his lawyer and Justice Bobde.

But that was not all. The very same day the court was hearing a petition filed by a man accused of rape by a woman he had been in a live-in relationship with for two years. While hearing the case, Justice Bobde went on to ask, “if a couple is living together as man and wife, the husband may be a brutal man, but can you call the act of sexual intercourse between a lawfully wedded man and wife as rape”?

An open letter to Chief Justice, signed by more than 5,000 including feminists, rights activists and other concerned citizens has asked him to immediately step down from his position and apologise saying that, “Your proposal of marriage as an amicable solution to settle the case of rape of a minor girl is worse than atrocious and insensitive for it deeply erodes the right of victims to seek justice. By suggesting that this rapist marry the victim-survivor, you, the Chief Justice of India, sought to condemn her to a lifetime of rape at the hands of the tormentor who drove her to attempt suicide.” The comments have been especially criticised as being an “attempt to work out a compromise” between the two sides and Justice Bobde’s comments “will send a message to the rapists that marriage is a licence to rape; and that by obtaining such a licence, the rapist can post facto decriminalise and legalise his act”.

Despite a long campaign within the country and a recommendation from the United Nations to recognise marital rape, India remains among the three dozen countries in the world that have failed to criminalise sexual assault in the bedroom. Justice Bobde’s comments are “extremely problematic” in a country where women have been constantly fighting a regressive mindset that accepts and normalises sexual violence against them, especially within the home.

“This comment not only legitimises any kind of sexual, physical and mental violence by the husband, but it normalises the torture that Indian women have been facing within marriages for years without any legal recourse.” The letter says that Justice Bobde’s remarks cannot be taken lightly – since coming from the chief justice of India, they can be used as precedents in other cases too. “From the towering heights of the post of the Chief Justice of India, it sends the message to other courts, judges, police and all other law enforcing agencies that justice is not a constitutional right of women in India,” the letter says, demanding that Justice Bobde step down from the post immediately.

However, there is more. Just 3 days later on March 4, while hearing the bail petition of an OTT platform executive in the case related to web series ‘Tandav’, Supreme Court called for stringent censorship of web content saying that ‘Screening Of OTT Content Needed’. While it is not our point that obscene content should be encouraged it cannot be used as an excuse by the Supreme Court to call for pre-screening and stringent censorship of web content and severe punishment as that can only be through thorough debate and following the process for legislation in the current constitutional mechanism of bourgeois parliamentary democracy. The case before SC was only for an anticipatory bail and had nothing to do with regulating OTT platforms. But of course, the SC has become the place where law and legal argument goes to die.

On next day, March 5, the hearing continued and the government presented its new IT Rules to the court. Supreme Court Bench headed by Justice Ashok Bhushan remarked that the new IT “Rules indicate that the Rules are more and more in the form of guidelines and have no effective mechanism for either screening or taking appropriate action for those who violates the guidelines”. The Solicitor General representing the government immediately agreed to present a fresh draft for the Court’s consideration. Lovely to see ‘the protector of citizens’ rights’ batting for stifling them even further.

Even by recent standards, the lawless way in which the SC has acted in this hearing is quite something. Without the IT Rules being the subject matter of the case before it, it has itself decided to express its views on them and started some kind of extra-legal negotiation with the government to bring in more “stringent” rules.  Apart from the fact that instead of defending civil liberties of the common citizens the SC is more eager to punish people than even the government (how did we get here?), all of this is completely outside the pale. The SC’s job is to adjudicate upon the validity of the law challenged before it, not egg the government on to make harsher laws. If SC pre-decides on merits of laws before even a challenge is raised, how can anyone expect independent application of mind if these Rules – whether in their present or “modified” form as demanded by the SC – are challenged as being unconstitutional?

Looks like SC judges have forgotten that their basic duty is to decide the validity of or interpret the laws on cases before it rather than being an advisor to Government on how to frame laws or make it harsher. There is no reason for a judge to be asking for stricter laws to be framed for censorship – which is completely outside his power, when hearing only a bail petition. It’s exactly what BJP wanted – to make stricter laws, but not be responsible for it. Why these ‘learned’ judges are behaving like this is a mystery we need to go deeper into.

On the other hand, in past years there have been many important cases where validity of laws or executive government orders has been challenged but the same court and judges have not been making time to hear those challenges timely. The Aadhaar case was heard after three long years and only after the government had already implemented it and the court then dealt with it as a fait accompli. Similar has been the fate of several other cases of high importance, for example, creation of secret channel of raising money by the political parties through Electoral Bonds, abrogation of Article 370 of constitution and converting Jammu & Kashmir from a state to Union Territory and many others. 

Let us also see this in the context of many bail hearings in recent past. In the case of Republic TV editor Arnab Goswami, Supreme Court declared itself the champion of ‘personal liberty’ and held a day long special hearing on Saturday to grant him bail under Article 142 jurisdiction though regular bail hearing was already scheduled before lower court in a case with serious charges saying that personal liberty cannot be trampled upon even for a single day. But just a couple of days later, while hearing bail petition of Kerala journalist Siddique Kappan, who was arrested in UAPA on the way to report on heinous Hathras Dalit teenager rape case and midnight ‘funeral’ by police, the same court said that it wanted to discourage petitions under Article 142. Siddique Kappan has still not been granted bail. Similar has been the fate of many a dissenting activists like Sudha Bhardwaj, Anand Teltumbde, Gautam Navlakha, Varavara Rao, Sudhir Dhavale, Shoma Sen, and so on, where SC has either refused to hear cases for months and years or has declined to grant the same personal liberty to them the encroachment of which it found so distressing in the case of Arnab Goswami.

Moreover, there has been many cases where some of the High Courts granted or were amenable to granting relief to citizens against government highhandedness and repression. But Supreme Court pounced upon those and ordered those cases to be brought before itself instead of those high courts and in some cases even transferred the High Court judges hearing those cases to prevent them pronouncing judgements. The cases related to Judge Loya and transfer of Justice Muralidhar hearing petitions on Delhi pogrom of Feb-March 2020 are worth mentioning here.

However, there is nothing mysterious in this. In a class divided society courts, like all other institutions of state, are but only a tool of the ruling class to suppress all voices of dissent and protest to protect rule of the exploiting class. The same is true of the present bourgeois democracy. However, there is usually a pretense of doing justice to create a make-believe scenario of the courts being above classes and a façade of courts acting as honest arbiters between all is constructed. But when the fascists take over the bourgeois state even this pretense is given up and the courts and judges instead of being the watchdogs on the executive start to behave like the hounds of the executive ready to not only bark but also to pounce upon the common people. This is happening now in India where many of the judges have now started to behave more like Swayam Sevaks.

[Originally published as Editorial in The Truth: Platform for Radical Voices of The Working Class (Issue 11 / March 2021)]

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