Delhi High Court: Taking suo motu cognizance on the observations made by
the learned Judge in the order passed by him where he wrote that women
in the age group of 19-24 years voluntarily elope with their lovers to
explore the greener pastures of bodily pleasure and delivered a sermon
on how girls should conduct themselves in society, the Court held that
these observations were not based on any empirical data or on any
evidence on record, moreover, they were general in nature,
sweeping and encompassing females as a class. Thus, it was held that
the learned Judge had imparted his personal knowledge pertaining to
females in the decision making and hence the same must be expunged from
the certified copy of the decision, whenever the same is issued.
The Court laid down certain points which must be taken account of while
disposing of gender issues. These points inter-alia pertained to the
plight of women and girls in various areas of life, and acknowledged the
fact that women’s experiences as victims, witnesses and offenders are
in many respects different to those of men. It was further pointed out
by the Court that in order to secure justice to women, the Judges must
learn the language of equality and impartiality. Highlighting the
victimization of a female in the Indian society, the Court held that if
gender biased pronouncements will be made by the courts then this might
adversely affect the investigation and prosecution of such cases at the
police personnel and prosecutors. Pointing out that law must provide
shelter to such aggrieved women instead of ridiculing her, the Court
held that the observations of the learned Judge were prima-facie
insensitive and capable of influencing the police to take up women
harassment cases lightly, resulting in an insensitive investigation and
complete evidence not being brought before the Court. [Suo Motu
Cognizance, W.P.(C) 8066/2013, decided on 19 December, 2013]1
CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE V.
KAMESWAR RAO PRADEEP NANDRAJOG, J.
1. Assigned to this Bench by
Hon’ble the Chief Justice taking suo motu cognizance of certain
observations made by the learned Judge, Special Fast Track Court, in the
order dated October 07, 2013, in Sessions Case No.34/2013, the above
captioned writ petition was listed before us yesterday i.e. on December
18, 2013. We had appointed Ms.Zubeda Begum and Ms.Rameeza Hakeem,
Advocates who were present in Court as Amicus Curiae to assist us. We
had drawn attention of learned Amicus Curiae to two observations made in
paragraph 20 of the decision in question, which according to us were
prima-facie reflective of gender insensitivity, breaching judicial norms
relating to gender issues. Photocopy of the decision in question was
handed over to learned Amicus Curiae who have researched over-night, and
for which we place on record our gratitude.
2. The impugned
decision would reveal that Sushil Kumar was an accused of having
committed offences punishable under Section 376/493/506 IPC upon FIR
being registered on the statement made by the prosecutrix. The evidence
led, as discussed by the learned Judge, leaned towards an opinion being
formed that it was a case of consensual physical inter-action between
the prosecutrix and the accused. Evidence surfaced that the prosecutrix
was literate. Photograph Ex.PW-1/DD was proved. The decision would
reveal that as per the prosecutrix it was a case of consent for sex on
the false assurance of marriage. Ex.PW-1/DA, Ex.PW-1/DB and Ex.PW-1/DC
would reveal that the prosecutrix and the accused had visited a Court in
Jammu for a civil marriage to be registered between the two.
3.
The decision would reveal that the version of the prosecutrix that when
the accused applied vermilion on her forehead in a hotel room and
declared that they were a married couple, has been discussed by the
learned Judge with reference to the plea that she volunteered to a
physical relationship on the belief induced by the accused that by
applying vermilion on her forehead a marriage has been solemnized.
4.
In the backdrop facts : of the age of the prosecutrix being 24 years;
she being literate; documentary evidence of moving around with the
accused with free consent; their visits to Jammu etc. has led the
learned Judge to take the view that it was a case of physical
inter-action with consent and not the result of a false assurance of
marriage.
5. To this extent, we are not concerned with the view
taken by the learned Judge for which we are not to appraise the
evidence. If the victim or the State are aggrieved by the inferences
drawn by the learned Judge, the appellate remedy as per the Code of
Criminal Procedure has to be availed of. But, our concern is with two
observations made by the learned Judge, which read as under:
“(i)
The girls in such cases are mostly in the age group of 19-24 years, thus
mature enough to understand the consequences of their acts and not so
snub to get carried away with any representations of the boy. They
voluntarily elope with their lovers to explore the greener pastures of
bodily pleasure and on return to their homes, they conveniently
fabricate the story of kidnap and rape in order to escape scolds and
harsh treatment from the parents. (i) The girls are morally and socially
bound not to indulge in sexual intercourse before a proper marriage and
if they do so, it would be to their peril and they cannot be heard to
cry later on that it was rape”.
6. It is apparent that the two
observations are sweeping and encompass females as a class and the
sermon by the learned Judge is to the feminine gender as a class. It is
apparent that the remarks, which are general in nature, are not based on
the evidence on record; they appear to be the result of the experience
of the learned Judge which has transformed into his knowledge. It is
apparent that the learned Judge has imparted his personal knowledge
pertaining to females in the decision making.
7. In the decision
reported as (1963) 2 SCR363State of U.P. vs. Mohd.Naim, general and
sweeping observations made by a learned Court of Sessions against
members of the Indian Administrative Police Force, who were opined to be
the single most lawless group in the whole country, were expunged by
the Supreme Court in exercise of the revisional power the Court vested
under the Code of Criminal Procedure.
8. Section 401 of the Code
of Criminal Procedure, 1973 empowers a High Court, on an application
filed or on a suo motu cognizance, to pass such appropriate orders as
may be warranted in a given case.
9. Indubitably, a Judge is
supposed to decide the dispute brought before him. The dispute is to be
decided by applying the law of the land.
10. A Judge is supposed
to analyze the facts and evidence appearing before him in an impartial
and objective manner. While doing so, in the case of gender issues, a
Judge is supposed to be sensitive regarding key points, which
inter-alia, would be as under: (i) Though women and girls comprise more
than half the population, they remain disadvantaged in many areas of
life. (ii) Stereotypes and assumptions about women’s lives can unfairly
impede them and might frequently undermine equality. (iii) Care must be
taken to ensure that our experiences and aspirations as women or of
other women, are not taken as representative of the experiences of all
women. (iv) Factors such as ethnicity, social class, disability status
and age affect women’s experience and the types of disadvantage to which
they might be subject. (v) Women may have particular difficulties
participating in the Justice system, for example, because of child care
issues. (vi) Women’s experiences as victims, witnesses and offenders are
in many respects different to those of men.
11. For this, Judges
have to learn the language of equality and impartiality. The process of
learning the language of equality may be slow, but a Judge has to
encourage himself to learn the same. Otherwise, there will be no
equality and therefore no justice.
12. In the words of Chief
Justice Hilario G.Davide, Jr. in the foreword to the book ‘Gender
Sensitivity in the Court System‟ by Marcia Ruth Gabriela, it was noted :
“It
is disconcerting when the courts that are expected to be the paradigms
of equality, themselves display gender insensitivity or gender bias. The
effect is the same when the insensitive act is made not by a Judge or a
court employee but by a lawyer appearing in the Court but who,
nevertheless, receives no chastisement for the insensitivity. Often the
offensive acts are unconsciously committed, but there are times when
gender slurs are deliberately made. Culture may be the culprit in both
instances. (emphasis supplied) 13. The point which needs to be
highlighted is that judicial pronouncements which are gender biased may
be used as a standard by the police personnel and prosecutors in making
decisions how they should investigate and prosecute cases.
14. As
highlighted by the learned author Lynn Hecht Schafran in the seminal
article „Gender bias in the Courts and emerging focus for judicial
forms, gender bias has three aspects:(i) Stereotyping the nature and
rules of women and men; (ii) Society’s de-valuation of women and what is
perceived as women’s work; and (iii) Myths and misconceptions about the
social and economic realities of women’s and men’s lives.
15. In
the Indian society, the female is a victim of social and psycho flows.
But she can find shelter in the books of law. When she beseeches the
legal fraternity to hold her hand, she does so in the hope that she
would be taken out of darkness to light. Hopefully there may come a day
when we can all say proudly : Women rights are our rights because they
are human rights.
16. The observations by the learned Judge which
we have extracted hereinabove, are prima-facie insensitive observations
and are capable of influencing the police to take up women harassment
cases lightly, resulting in an insensitive investigation and complete
evidence not being brought before the Court. To write that women in the
age group of 19-24 years voluntarily elope with their lovers to explore
the greener pastures of bodily pleasure is not based on any empirical
data. The passage as a whole bring out the dilemma of the women in the
Indian society. Caught between her ambitions to chose a life partner and
the pull of the patriarchal society, the women is torn apart between
her personal ambition and the patriarchal society. So placed, she has to
be treated with sympathy and care and not made the object of ridicule
by styling her as a person who is in conflict with herself.
17.
The second observation to which we have adverted to, is a sermon as to
how girls should conduct themselves in society. Every individual is
entitled to choose the social life which one wants to lead, and if in
the process of choosing the social life which one wants to lead,
somebody causes harm, no Court can say that : You chose a way of life at
your peril and thus the system will not hear your cry.
18. We
note that on the administrative side a decision has been taken by this
Court to counsel the author of the impugned judgment, administrative
decision has been taken that at the State Judicial Academy whenever a
topic on Gender Sensitivity is discussed the learned Judge should be
nominated as a participant. Thus remedial action required has already
been taken by this Court in exercise of its power under Article 227 of
the Constitution of India.
19. On the judicial side we expunge the
observations in paragraph 20 of the impugned judgment, which we have
noted in paragraph 5 above.
20. The observations are expunged.
21.
Copy of this order be sent to the District & Sessions Judge, Dwarka
Court Complex, New Delhi who shall ensure that it is placed on the file
of Sessions Case No.34/2013. Whenever a certified copy of the decision
dated October 07, 2013 is issued, the observations shall be expunged and
it shall be indicated therein that the certified copy is being issued
after expunging the twin observations.
22. The petition stands disposed of. (PRADEEP NANDRAJOG) JUDGE (V. KAMESWAR RAO) JUDGE DECEMBER19 2013 SKB
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