An Indian judge is under pressure to delete comments from a court order that questioned the behaviour of a woman who alleged she was raped.
Granting bail to the rape accused last week, Justice Krishna S Dixit of the Karnataka High Court said he found the woman’s statement “a bit difficult to believe”.
Justice Dixit went on to ask why the woman had gone “to her office at night – at 11pm”; why had she “not objected to consuming drinks with him”; and why she had allowed him “to stay with her till morning”.
“The explanation offered by her that after the perpetration of the act she was tired and fell asleep is unbecoming of an Indian woman,” the judge said, adding that it was “not the way our women react when they are ravished”.
His remarks set off a storm of protest. Outraged Indians asked if there was a “rulebook” or a “guide” to being a rape victim. An illustration was widely shared online which, drawing on several recent court rulings, mocked up “An Indian judge’s guide to being the ideal rape survivor”.
Aparna Bhat, a senior Delhi-based lawyer, wrote an open letter to the chief justice of India and the three female judges of the Supreme Court in response to the ruling.
“Is there a protocol for rape victims to follow post the incident which is written in the law that I am not aware of?” she wrote. “Are ‘Indian women’ an exclusive class who have unmatched standards post being violated?”
Appealing to the Supreme Court judges to intervene, Ms Bhat said the judge’s remarks showed “misogyny at its worst”, adding that not condemning them would “amount to condoning”.
Madhu Bhushan, a women’s rights activist in Bangalore, where the Karnataka high court is located, described the language used by the judge as “shocking” and “absolutely uncalled for”.
“His comments are objectionable at several levels,” she told the BBC. “What does he mean by ‘our women’? And ‘ravished’? It’s so Victorian, so outdated, it takes away from the seriousness of the issue, which is violence against women.”
Ms Bhushan said she was not questioning the order itself, but asked “why did he have to pass these comments on her conduct?”
“It’s preposterous to say women don’t behave like this. It has nothing to do with law, it’s judging her behaviour,” she said.
Ms Bhushan is among dozens of civil liberties activists, writers, actors, singers and journalists who wrote an open letter to Justice Dixit saying his ruling had “deeply disturbed and disappointed” activists and demanding that he expunge the comments.
“Women who make decisions to live independently and make choices regarding their own lives, including their intimate/ sexual lives are still viewed as women with loose morals and character,” the letter said.
Ms Bhushan said the language in the court order normalised sexual violence and enforced the idea that rape was a woman’s fault.
“If it proves that the allegation of rape is false, so be it, but why pre-judge it? Why put the woman on trial? It is not expected of a high court judge,” she said.
Rape and sexual crimes have been in the spotlight in India since December 2012, when the brutal gang rape – and the subsequent death – of a young woman on a bus in Delhi sparked days of protests and made global headlines.
According to government data, thousands of rapes take place every year in the country and the numbers have been rising over the years.
Latest figures from the National Crime Records Bureau show police registered 33,977 cases of rape in 2018 – an average of a rape every 15 minutes.
And campaigners say the actual number is much higher, because cases of sexual violence are grossly under reported.
Ms Bhat, who has worked on hundreds of cases of sexual assault over the years, said research showed that survivors of sexual assault generally do not seek justice, “primarily to avoid the secondary trauma” of a criminal trial.
“Sexual violence is associated with stigma, and when a woman goes to testify, there’s the feeling that most people in the room will not believe her,” she said.
And she said the remarks made by Justice Dixit could further deter women from coming forward.
This is not the first time the Indian judiciary has been criticised for court orders seen as patriarchal and misogynistic.
In a a 2017 ruling, judges castigated a gang-rape victim for drinking beer, smoking, taking drugs and keeping condoms in her room, and called her “promiscuous”. Speaking to the BBC at the time, Supreme Court lawyer Karuna Nundy said the ruling implied the woman “had no right not to be raped”.
And in a 2016 order, a woman who had alleged abduction and gang-rape was questioned about her “noticeably unusual conduct and movements post the assault”.
“Instead of hurrying back home in a distressed, humiliated and a devastated state, she stayed back in and around the place of occurrence,” the judge said, adding that the fact that “she was accustomed to sexual intercourse… before the incident also has its own implication”.
They are just two examples from a long list of cases in which the judiciary has shamed the victims of rape and sexual assault.
“A judge is not supposed to make such remarks, no matter what the provocation,” Professor Upendra Baxi, emeritus professor of law at University of Warwick and Delhi, told the BBC. “As a judge, you ought to think about it before you speak. You might hold those views but you should not articulate them.”
The judges remarks in the Karnataka high court judge reflected a bias against women and stereotyped them, Prof Baxi said.
“Women are equal citizens and you cannot do anything to undermine her dignity. Doing your job as a judge doesn’t include passing remarks on a large group of people, stigmatising them,” he said.
Decades ago, Prof Baxi and three of his lawyer colleagues fought a similar battle to ensure personal biases of judges did not find their way into court orders.
In 1979, they wrote an open letter to the then-chief justice of India, after the Supreme Court overturned the conviction of two policemen who were found guilty of raping Mathura, a “14-16-year-old” tribal girl, in a police station.
In his ruling, the Surpreme Court judge said that Mathura was used to sex because she was in a relationship, and that her medical report showed she had no injuries and she had “invented” the story of rape.
“In our letter, we said we saw patriarchal tendencies in the Supreme Court and we pushed for it to change,” Prof Baxi said.
In the wake of the Mathura case, violence against women became a matter of national debate and new rape laws were passed in India.
In 1983, the parliament amended the rape law – shifting the burden of proof from the victim to the accused and stating that the past sexual history of the victim should not be a factor.
But 40 years later, the comments of Justice Dixit and other judges finding fault with the behaviour of victims show that the past sexual history of a woman is still a factor in many courts adjudicating rape cases.
“The judicial process needs to exorcise itself of these beliefs. These prejudices have to be dismantled from the outside or cleaned out from within,” said Ms Bhushan.
“We have asked Justice Dixit to expunge his remarks. If he does that, it will be a great service to egalitarian gender-just jurisprudence,” she said.
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