Smt. Brinda Karat, Member, Polit Bureau of Communist Party of India (Marxist) had written the following letter to the Chief Justice of India on the observations that the CJI made into different cases yesterday.
We are releasing the text of the letter for publication.
The Chief Justice of India
I write to you in connection with the comments reportedly made by you in two cases in open court.
The first is in in the case of a bail petition appeal by the rapist of a then minor girl student of Class 9, against the decision of the Aurangabad bench of the Maharashtra High Court which denied him bail, overturning the lower courts decision. It is reported by the site “Bar and Bench”, “.. CJI Bobde asked counsel for the petitioner, "Will you marry her?" To this, the advocate replied, "I will take instructions." .."You should have thought before seducing and raping the young girl. You knew you are a government servant," was CJI Bobde's response. "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. When the matter was heard again shortly thereafter, counsel for the petitioner said, "I wanted to marry her. But she refused. Now I cannot, as I am already married.”
The Court granted interim protection for four weeks to the rapist and asked him to apply for regular bail.
These questions, words and actions have serious implications in granting of bail in cases of rape of minors. Please reconsider and withdraw these comments and questions and the bail you have granted to the rapist. Please uphold the judgment of the Aurangabad High Court which rules that bail granted to him by the lower court was “atrocious.”
The girl was gagged and raped by this criminal, when she was just sixteen years old. He repeated his crime 10-12 times. The girl tried to commit suicide. Does this show consent? In any case, in the case of a minor, as this girl was, the law is clear that there is no issue of consent.
Chief Justice Sir, what about the victim, now 18 and what the effect such a question will have on her? Is her suffering, her trauma of no consequence, of no value? Rape victims are not robots whose thoughts and feelings are under remote control of others. Regardless of what her parents may have wanted the girl had reportedly refused the suggestion of marriage.
By such questions put to a rapist the message given is that a rapist can escape jail if after the crime he “agrees” to marry his victim whether she wants to or not. There is a prevailing retrograde social approach that the victim of rape is a “bad” woman and if the rapist marries her, she gains respectability in the eyes of society. Comments of the apex court should not give the impression of supporting such approaches.
In a crime of rape the processes of justice must keep the interests of the victim at the centre. Unfortunately in this case, the opposite has happened.
The second case relates to the comments reportedly made in the case of a bail petition hearing of a man who had sexual intercourse with a woman on the false promise that he would marry her. Under the law, this constitutes rape. However it is reported “The Supreme Court on Monday stayed the arrest of a man accused of rape by his former partner, asking `... however brutal the husband is... when two people (are) living as husband and wife... can sexual intercourse between them be called rape?’" Yes sir it can be called rape. Rape is determined not by a marriage certificate but whether or not the woman consented to have sexual intercourse. The comments reportedly made justify brutality and cause harm to the woman.
As one who has fought as part of women’s movements both outside and within Parliament for changes in laws and perceptions regarding rape victims and their rights, I believe that the comments made by the court, constitute a setback for the struggle for justice.
I appeal to you to consider this letter as a request to withdraw the comments and decisions. Women hope that the power and strength of the highest Court is used to help victims of sexual assault not the perpetrators, even more so when the victims are minors.