We will make an exception, and put this article out in an unconventional format. We will begin with a conversation and urge the reader to guess whether it is imaginary or real. If the reader can guess it correctly, we will leave it to the conscience of the reader to take steps accordingly. If the reader fails to guess correctly, we would urge him/her to read it a few more times and carry out this exercise with three more people.
Before the excerpt of the conversation, it would be only fair to provide a setting and context (the reader is free to imagine it was real or hypothetical).
Location: Supreme Court
Context: A man booked under the POSCO Act, who had raped a girl multiple times when she was in Class 9 is pleading for bail, which if not granted could cost him his job.
Chief Justice of India: “If you want to marry her, we will help you. If not, you lose your job and go to jail. Will you marry her?”
Accused’s lawyer: “Will take instructions.” (pleads for a pass over)
Chief Justice of India: “You should have thought before seducing and raping the young girl. You knew you were a government employee. We are not forcing you to marry. Let us know if you will. Otherwise, you will say we are forcing you to marry.”
Accused: “Initially I wanted to marry her. But she refused. Now I cannot as I am already married.”
Chief Justice of India: ” That’s why we have given you this indulgence. We will stay the arrest for four weeks. After that, you apply for regular bail.”
And that’s the end of the exchange. If the reader is thinking this is out of some terribly misogynistic movie and is purely a work of fiction, then he is as far from the truth as possible. This is a real, exact exchange that happened in the Supreme Court, while a bench headed by the Chief Justice of India was hearing a special leave petition by a man who is now a government servant in Maharashtra, against an order of the Bombay High Court(Aurangabad Bench) which canceled his anticipatory bail.
At The Indian Feed, we have covered issues while maintaining the scope for perspective and neutrality in incidents that deserve the benefit of doubt or debate. However, that has never been our excuse to forgot Journalism 101 by Jonathan Foster who said, “If someone says it’s raining & another person says it’s dry. It’s not your job to quote them both. Your job is to look out the f**king window and find out which is true.”
There are no two ways to go about the incident or allow various perspectives to germinate about the court’s statements. The matter of the facts is: The Supreme Court has given protection from arrest to a rapist and it has implied rape is fine as long as the accused promises to marry the victim. It is plain wrong.
The incident allegedly dates back to 2014-15, when the complainant was in Class 9. She claimed that Chavan, who was her distant relative, raped her multiple times until she was in Class 12. According to a police complaint filed by the girl in 2019, she had allegedly attempted suicide in June 2018, after which her mother took her to the police station to file a complaint against Chavan. However, the parents of both parties executed an undertaking, instead, agreeing to get them married once the girl turned 18 and accepting that they were both in a consensual sexual relationship.
But once the girl turned 18, Chavan’s mother allegedly refused to agree to their marriage, prompting her to file the complaint against Chavan on 17 December 2019. Five days later, on 23 December 2019, Chavan filed for anticipatory bail, before the session’s court. He was granted bail on 6 January 2020. A month later, on 5 February, the girl challenged this order in the Bombay High Court, demanding cancellation of his anticipatory bail. The HC on 5 February canceled the anticipatory bail granted to Chavan, who then challenged this order in the Supreme Court.
As reported by The Indian Express according to Chavan’s petition, the minor girl had alleged that he used to follow her on her way to school. Chavan is also alleged to have repeatedly raped the girl, almost a dozen times since she was in Class 9. He allegedly threatened her with acid attack and injury to her family members if she disclosed the incident to anybody.
Chavan’s petition also claimed that they had entered into a notarised undertaking in June 2018 claiming that their sexual relations were consensual and agreeing to get married when she turns 18. However, when she reached the age, the petition alleged that Chavan’s mother refused to get the two married, prompting the girl to lodge the complaint against him. The complaint by the girl also noted that she and her mother had asked the accused to marry her but they refused and hence she filed the complaint because he allegedly forcibly had sexual relations with her repeatedly when she was a minor.
The FIR against him was filed under sections 376 (punishment for rape), 417 (punishment for cheating), 506 (punishment for criminal intimidation) of the Indian Penal Code, and sections 4 (punishment for penetrative sexual assault) and 12 (punishment for sexual harassment) of the Protection of Children from Sexual Offences (POCSO) Act 2012.
The lower court had, however, granted him anticipatory bail, observing that the “possibility of false implication of the Applicant who is now a public servant cannot be ruled out”. The judge concluded that the girl had “sufficient maturity” about the incident, because “she has with meticulous details mentioned about the use of contraceptive by the Applicant”.
After the accused was granted anticipatory bail by the Sessions Court, the girl approached the Bombay High Court seeking its cancellation. In the order canceling his anticipatory bail, the Bombay High Court observed that the accused had sexually exploited the girl for a sufficiently long period.
“One can easily conclude that going by the allegations respondent No.2(the accused) has sexually exploited the applicant for a sufficiently long period, since she was around 16 years of age. The papers of investigation would further corroborate the applicant’s version about execution of a writing on a stamp paper of Rs.500/-. Respondent No.2 and his family seem to be so influential that they could get executed this writing from the applicant and her widowed mother. The very fact that they could get such writing executed is indicative and is sufficient to infer that respondent No.2 had indulged in sex with the applicant even when she was merely 16 years of age. Pertinently, this writing also bears his signature and signature of his mother”.
The High Court even went to the extent of saying that the Sessions Court’s order granting bail was “atrocious”. The Sessions Court observed though the girl was a minor, she was of “sufficient maturity” as she “has with meticulous details mentioned about the use of contraceptive” by the accused.
Taking strong exception to the “lack of sensitivity” shown by the Sessions Court, Justice Mangesh S Patil of the High Court observed:
“The approach of the learned Judge from such a reasoning clearly shows his utter lack of sensitivity in such serious matters. Inspite of having noted that the applicant was still a minor when respondent No.2 had sexually exploited her and inspite of observing that her consent would be immaterial,he has concluded that it was a consensual relation. Astonishingly, merely because she has mentioned in the FIR about use of contraceptive by respondent No.2, the learned Judge has jumped to the conclusion that she was having sufficient maturity. The height is committed by the learned Additional Sessions Judge even to record an observation that there is a possibility of false implication of respondent No.2. Such an approach is a clear indication that the learned Judge utterly lacks competence. It is indeed a matter which deserves a serious consideration“
The observation and judgment by the Supreme Court are sick and sets a dangerous precedent, undoing the damage control by the Bombay High Court. In a country where crime against women is on the rise, the Supreme Court itself considering marriage as a solution for rape indicates that the Court does not consider rape to be a serious enough crime and is ready to show leniency. Exposing the patriarchal mindest embedded in the roots of institutions of justice such statements (about marrying victims) not only trivialize rape offenses but shows how crimes against women in general, are seen by society. It is very disturbing indeed when judges, especially the Chief Justice of India makes such a statement. It is the need of the hour that the Apex Court walk away from the journey of normalizing rape that it has embarked on.