On Monday, 1 March 2021, Chief Justice of India SA Bobde asked a government employee, who is seeking protection from arrest in a rape case, if he is willing to marry the survivor. The Supreme Court was hearing a petition by Mohit Subhash Chavan, a technician with the Maharashtra State Electric Production Company. He allegedly raped a schoolgirl and now faces charges under the POSCO (Protection of Children from Sexual Offences) Act, 2012. This column is a response by noted lawyer Vrinda Grover, which was originally shared to her Facebook page. It has been republished here with due permission.
Trigger warning: Sexual violence.
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I am deeply troubled and angry, though not shocked. All persons believing in equality and dignity of women, rights of women over their own bodies, sexual autonomy and right to self determination over their own lives and futures, will be enraged. Basically, anyone who considers women as human beings will oppose and challenge the observations made by the CJI during the hearing in Mohit Subhash Chavan vs. The State of Maharashtra & Anr. on 1 March 2021, as reported by the media. These words by the CJI, just days before we commemorate 8 March as International Women's Day, are a timely reminder of how much work remains to be done, and we need to start from the top.
The questions asked and observations made by His Lordship the CJI, while hearing a petition by a POCSO accused seeking protection from arrest, are unacceptable for they trivialise and condone severe sexual violence and denude the rape survivor of any rights and personhood. The facts of the case are that the accused repeatedly raped a 16-year-old, Class 9 minor girl after gagging her, tying her hands and legs, followed by intimidation, including threats to throw acid on her, burn her with petrol, eliminate her brother — all designed to silence her from complaining about the sexual assault.
Forcefully sexually assaulting a minor girl with her arms and legs tied, is a crime; it is called the offence of penetrative sexual assault under POCSO. The CJI is reported to have stated, "You should have thought before seducing and raping the young girl." Can the two verbs "seducing" and "raping" be part of the same act?
Once again the culture of compromise for the crime of rape, was offered as a mode of settlement, this time suggested by His Lordship the CJI himself: "Will you marry her? Supreme Court asks government servant charged with repeatedly raping minor girl".
Of course the CJI was very careful to not impose the will of the Court on the POCSO Rape accused man. It was only a query. Perhaps an attempt to find an amicable solution.
"We are not forcing you to marry. Let us know if you will. Otherwise you will say we are forcing you to marry her," the CJI went on to observe.
The Court's concern that the rape accused’s employment should not be jeopardised is quite touching. After all the POCSO rape accused man would suffer an immeasurable loss if he was arrested, as he would lose his hard-earned government job. And, nothing can be a more noble cause than getting a minor rape victim married. And well, who can she be married off to? The rape accused would be the obvious, or rather the only man available.
By granting protection against arrest to the POCSO rape accused, whose rights and interests are being respected, promoted and protected by the Supreme Court of India?
After all the rape victim survivor is on record before the Supreme court as having successfully challenged and got the "atrocious" Sessions Court Order granting anticipatory bail to the POCSO accused set aside by the High Court. The record therefore shows that the young victim-survivor of repeated rape was fighting for justice and wanted the accused to be prosecuted and punished.
It is also the case of the prosecution that after being repeatedly raped, the 16-year-old attempted suicide. This attempted suicide by the victim-survivor is an expression of despair to escape the accused. It is not exactly an indicator of love for the rapist.
Minor detail, that the young woman — who we are told the Puttaswamy judgment of nine Judges of the Supreme Court has endowed with decisional autonomy in all matters relating to her personhood — was not even asked in passing, whether she wanted to marry her rapist. After all, a woman's consent, whether for sex and/or marriage often does confuse, confound and bewilder the court, to the extent that at times the decibel level mysteriously drops and the court hears a "feeble no", even where the woman has said a perfectly audible "no", not once, but repeatedly.
Another minor fact, the SLP filed against the Delhi High Court "feeble no" judgment, was dismissed by a Bench headed by Justice SA Bobde (as his Lordship was then).
On another register, there is an ongoing discussion and legal challenge seeking to criminalise marital rape. Judgments of the Supreme Court in Navtej Johar, Joseph Shine lay the jurisprudential foundation to mount a challenge for the deletion of the Exception under Sec.375 IPC, which exempts forced sexual intercourse by husband from penal consequences.
The mind boggles. Perhaps a new category of legal exception is being carved out: rape, even of a minor, even repeated rape, even where her limbs are tied and she is threatened, if followed by marriage, would grant amnesty for all crimes of sexual violence, committed prior to marriage. Rape followed by marriage, of course if the rapist wishes to marry her, would lead to all sins being washed away.
Also being washed away in this stream of prejudice, misogyny, patriarchy, male entitlement, are the rights of all women. A few months ago, taking umbrage at a High Court Order in a sexual harassment case, directing the victim to tie a rakhi to the accused, it was stated in the CJI's court that gender sensitisation was required of the Judiciary.
Gender justice and gender equality is an assertion of freedom and equality by women. It is every woman’s basic human right, guaranteed by the constitution. Women don’t want to be rescued by the state or the court.
Marriage is not the institutional deliverance women are seeking from the court. Women are making a rightful claim to justice.
So will any Senior Law Officer of the Court, or Bar Association raise this as an issue of great public importance touching upon the Constitutional rights of women and girls?
Vrinda Grover is a leading lawyer, researcher, and human rights and women's rights activist.
from Firstpost India Latest News https://ift.tt/3q9etd9
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