Under no circumstances are courts expected to regress into religious morals to evaluate the conduct of free citizens in a secular democracy
Is it normal for courts to talk about morality? Possibly not. Is it advisable for judges to talk of religion and morals? Certainly not. Does such talk imply a fall from our admirable standards of law? Maybe. Or it may simply imply that individual failure that has nothing to do with the legal system. Except that such individual failures of judges, if reflected in their judgments, in our jury-less legal system, can be lethal for justice.
Let’s start with the word. The word that stalked us incessantly, silently. The word you could not utter. So you didn’t hear it much. Then we learnt to say it. Now you hear it all the time. We say the word. We encourage others to say it. Speak up, we urge, claim justice. Last year we spoke up so much, and so loudly, that the word buried deep by ages of social pressure
suddenly emerged like a supernatural creature surfacing out of the depths of the earth, shaking itself free of the dust and grime almost in slow motion, growing, growing, growing into a formidable giant and sauntering off, seeking vengeance.
The word is rape. The word that could not be uttered, could not be heard, could not be imagined without shame, embarrassment or a leer. It was a ‘bad word.’ And since good girls cannot utter bad words, it was impossible for raped girls and women to attempt to get justice without erasing their ‘family honour.’ Now, after the outrage following the horrifying sexual assault that killed the 23-year-old medical student in December 2012, there has been a change.
Rape is not unutterable anymore. It has, in fact, become a rather frequently uttered word. And thanks to the laudable efforts of civil society, activists and legal experts, especially the Justice Verma Committee, rape has been pulled out of the dark to be carefully inspected and legally reappraised.
Until now, that reappraisal was focussed mostly on identifying acts that were earlier not considered rape, and labeling it as rape under the new law. Now, there seems to be an attempt to also look at what was earlier considered rape, and to dismiss it as consensual sex. But there is more to it.
Recently a Delhi sessions court judge acquitted a man accused of raping a woman he had befriended on Facebook. That is fine. Courts do that. What was curious in this case, however, was the way the judge explained his verdict. He seemed intent on labelling the woman as immoral. “She must be taken to understand the consequences of her act and must know that there is no guarantee that the boy would fulfill his promise,” said Additional Sessions Judge Virender Bhat. And went on to say: “She must understand that she is
engaging in an act which not only is immoral, but also against the tenets of every religion. No religion in the world allows pre-marital sex.”
This is where things took a ridiculous turn. The woman was accused of an act so “immoral” that it was “against the tenets of every religion.” Phew! That sounds truly terrible. Was he talking about murder? No. The judge was only talking about pre-marital sex. He was talking of “sexual indulgence with the accused”, specifying that this was a universally unholy, immoral act because she “agreed to have sexual intercourse with him only on account
of her love and passion for him.” So much for love.
Anyway, legal justice is about following laws, upholding constitutional guarantees and guidelines, not blindly following social mores and religious custom. Secular laws exist to offer justice in a society where religion is not the supreme authority. They need to be prioritised over religious sentiment, especially in a multi-religious, multicultural country like ours.
Prioritising private morality over constitutional guarantees of individual freedom for adult citizens could be disastrous. Especially since we have a violent history of religious fundamentalism and moral policing. Judges in our secular democracy are supposed to stick to the facts, determine whether the acts in question fit the law and decide whether a crime has been committed or not. They are not supposed to turn towards religion to seek answers to their constitution-bound public duties.
And even apart from religious sentiment, public morality is not supposed to play a role in legal decisions. Once we fall into that trap – which I believe we have been for some years now – we start sliding dangerously into majoritarianism, moving away from democratic rights and freedoms. Courts are expected to follow the spirit of the law to deliver justice in a
society that may have progressed quite a bit since the laws were created. Under no circumstances are courts expected to regress into religious morals to evaluate the conduct of free citizens in a secular democracy.
Also, the statement, “No religion in the world allows pre-marital sex”, is not even factually correct. There are several religions and systems of belief that have no objection to premarital sex. In our own country, there are tribal customs where sex before marriage is perfectly acceptable, and often encouraged. It is particularly worrying to have a judge who has not
just a sexist bias, but also a majoritarian bias against minority religions and indigenous faiths.
But was there anything positive about the whole bizarre episode? Yes. It stepped away from the currently accepted definition of rape. “In my opinion, every act of sexual intercourse between two adults on the assurance of promise of marriage does not become rape, if the assurance or promise is not fulfilled later on by the boy,” the judge said. This is significant because the Indian Penal Code states that if someone had sex with a woman by getting her consent based on a false promise of marriage, it would be considered rape. This has led to many accusations of rape after love affairs end. This trivialises rape.
So one can agree with Justice Bhat’s sentiment – if not his words – when he objects to that assumption: “When a grown-up, educated and office-going woman subjects herself to sexual intercourse with a friend or colleague on the latter’s promise that he would marry her, she does so at her own peril.” Rape is a grave issue. And whether a woman’s conditional consent for sex makes it ‘consensual sex’ is perhaps best decided on a case-by-case
basis. The sweeping assumption of the law in its favour is as absurd as the sweeping generalisation of Justice Bhat against it. Today’s Indian woman very often does have the power to assess a situation and give or withhold consent to sex, she does not need the blanket protection meant for the thoroughly disempowered women of yesterday.
Antara Dev Sen is Editor, *The Little Magazine*.
Email: sen@littlemag.com
Antara Dev Sen
