We are herewith releasing response of Smt. Brinda Karat, Member, Polit Bureau of Communist Party of India (Marxist) to the Bar Council of India on her letter to CJI.
Chairman of the Bar Council of India Shri M.K. Mishra ji,
I have seen a press release dated March 4, of a resolution adopted by the Bar Council of India (with some of the sentences blacked out. copy enclosed). I am responding to this resolution not because my name has been mentioned in the said resolution several times in the most derogatory terms, but because the issues raised in the resolution have wider implications for the struggle for justice. I will therefore not respond to the petty, personal allegations made against me in the Resolution. I believe an individual’s record of work for women’s rights and justice for the oppressed should speak for itself. In this context the role of the Bar Council, a statutory body requires examination.
1. The resolution mentions my letter to the Chief Justice regarding certain comments he made in the open court which were widely reported in the Press. Nowhere does the resolution contradict the reports, in other words, there is no dispute that such comments were indeed made. Whether or not the comments form part of the judgement is immaterial. The fact that such comments were made and reported have their own impact on society at large. The Resolution asks a rhetorical question : “Comments made by the judges not resulting in their orders have no legal sanctity, why then raise a hue and cry on such comments?” Comments made by higher authorities such as those made in the present case asking a rape accused whether he would marry his victim, have a most damaging impact on victims of crimes and in this case tend to dilute the enormity of a crime against a minor. Comments may not have legal sanctity but certainly provide legitimacy to retrograde social approaches, which I have mentioned in my letter. In fact the Bar Council, if indeed it wanted to react, should have upheld the best judicial practices and standards and taken up the negative impact of such comments, with the Court concerned.
2. The Bar Council resolution speaks of a “written agreement” between the parents of the rapist and the minor girl. Is there anything legal about such an agreement? Under which law? Is the Bar Council not aware that the girl tried to commit suicide? Is the Bar Council not aware that the girl refused the marriage offer? And also most importantly if such an agreement was made on behalf of the girl when she was a minor, once she became an adult is it not the bounden duty of the Court to ask her opinion first, before asking the rapist if he would marry her? It is indeed distressing that the Bar Council resolution does not at all show any sensitivity whatsoever to the minor victim. It requires examination why a council of such senior lawyers should not see the necessity of judicial processes, more so in cases of rape of a minor, to put the interests of the victim, not the perpetrator, at the centre of the process for justice.
3. The Aurangabad High Court rejected the bail granted by the lower court. He would have been arrested but for his appeal. However the Supreme Court has given him protection for a month to apply for “regular bail”. The Bar Council resolution says this “should be appreciated.” I strongly believe giving time of one month constitutes protection against immediate arrest. The Council does not have the right to damn an opinion on this as being “motivated.”
4. In the second case referred to in my letter, the Council resolution has made defamatory comments against the petitioner in her appeal to the Supreme Court. You have attacked her reputation. I think this is objectionable. The issue here is not the merits of a specific case. The issue is the comments made by the Court which were of a general nature, regarding the relations between a husband and wife or those in a live in relationship. Here again it is not disputed by the Council that the comments made were “however brutal the husband is... etc.” In other words it is a general comment about husbands, which has the most grave implications for cases of domestic violence including marital rape. Rape is a coercive act of sexual intercourse without the woman’s consent. It is true that there is no law against marital rape at present in India. The petition is pending before the Courts. However, for the apex court to make comments such as “however brutal the husband is” gives licence to brutality.
The Bar Council has described my letter to the CJI and its reporting in the media as “acts of gross contempt.” The resolution also states that “immediate measures must be taken to stop this practice of malicious attack...” There is neither contempt nor malice in my letter and it’s reporting in the media. On the contrary some of the words in the Council’s resolution may be taken as intimidation. I doubt very much if such intimidation and threats against an individual/s are within the mandate of the Bar Council.
I reiterate the contents of my letter.