Outrage as Indian judge calls alleged rape victim 'unbecoming'

[Figaro]

Outrage as Indian judge calls alleged rape victim 'unbecoming'
By Geeta Pandey
BBC News, Delhi

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 It's so Victorian, so outdated, it takes away from the seriousness of the issue, which is violence against women."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 judge's remarks in the Karnataka high court 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.

 

[Figaro]

Now you know why India cannot solve its rape problem ... if the courts are biased against rape victims, how do they get justice?

 

[ColonelSanders]

Now you know why India cannot solve its rape problem ... if the courts are biased against rape victims, how do they get justice?

Maybe the judge had first hand experience of raping women so he knew what they do after getting raped?

 

[sinait]

Now you know why India cannot solve its rape problem ... if the courts are biased against rape victims, how do they get justice?

Could also be this INDIAN JUDGE IS VERY EXPERIENCED and EXPERT AT RAPING.
So he is familiar with the typical events that happens in a rape.
He is suspicious of the woman because it dont tally with what happens with his numerous rape escapades.

Well he is also Indian, Judge or Not, could very well be inflicted with that WORLD INFAMOUS INDIAN URGE TO RAPE.
.

 

[Shantanu_Left]

Maybe the judge had first hand experience of raping women so he knew what they do after getting raped?

I don't see anything wrong with the judge's decision. The alleged rape victim's story is not very convincing. She stayed behind at the hotel with the man, and then they both fell asleep. She did not scream or resist the man. There were no injuries on her body, she was clearly a consenting adult. If it was out of fear of being killed (coercion), that could be a valid argument. But then that's a separate case. Yes, fornication outside marriage is frowned upon in conservative India but then it's a victim-less crime at the maximum.

If this frivolous case becomes a textbook example of rape, then I would be guilty myself of being a rapist so many times.

Why only India? No country in the world would entertain such a frivolous case. She's clearly using rape as a defence to settle scores with the man. Maybe she didn't get paid enough?

Could also be this INDIAN JUDGE IS VERY EXPERIENCED and EXPERT AT RAPING.
So he is familiar with the typical events that happens in a rape.
He is suspicious of the woman because it dont tally with what happens with his numerous rape escapades.

Well he is also Indian, Judge or Not, could very well be inflicted with that WORLD INFAMOUS INDIAN URGE TO RAPE.
.

This is a BS case and will not fly in any jurisdiction of the world except feminist hell-holes like Scandinavia maybe. The woman is crying wolf for no reason, maybe she wants to get paid by the man's family. Happens in India all the time, wealthy men are harassed by women who seduce them first and then cry rape to get something in return.

This woman stays behind in the hotel room for the whole night after the alleged rape. Why would a judge believer her story just because she's a woman. She's a consenting adult and the medical report did not return any injuries.

 

[jamahir]

is unbecoming of an Indian woman

I suppose the honorable judge wants all Indian women to be ideal RSS zombies :

 

[Joe Shearer]

I don't see anything wrong with the judge's decision. The alleged rape victim's story is not very convincing. She stayed behind at the hotel with the man, and then they both fell asleep. She did not scream or resist the man. There were no injuries on her body, she was clearly a consenting adult. If it was out of fear of being killed (coercion), that could be a valid argument. But then that's a separate case. Yes, fornication outside marriage is frowned upon in conservative India but then it's a victim-less crime at the maximum.

If this frivolous case becomes a textbook example of rape, then I would be guilty myself of being a rapist so many times.

Why only India? No country in the world would entertain such a frivolous case. She's clearly using rape as a defence to settle scores with the man. Maybe she didn't get paid enough?



This is a BS case and will not fly in any jurisdiction of the world except feminist hell-holes like Scandinavia maybe. The woman is crying wolf for no reason, maybe she wants to get paid by the man's family. Happens in India all the time, wealthy men are harassed by women who seduce them first and then cry rape to get something in return.

This woman stays behind in the hotel room for the whole night after the alleged rape. Why would a judge believer her story just because she's a woman. She's a consenting adult and the medical report did not return any injuries.

You didn't get the point. The judge has a perfect right to come to his own conclusions about the sufficiency of the evidence after examining the evidence made available to him. What people have objected to is that he made statements creating norms and limits on what is permissible and what is not permissible, and indicated that there was no need to seek further evidence.

As a judge, he might well decide that it is unusual behaviour to stay back after being raped, given that there was no restraint on leaving or on asking for help immediately, and he might proceed with his determination of the matter with a more searching scrutiny to find out the facts; if the behaviour had not been unusual, he might have taken much slighter evidence as convincing. That is his judicial weighing of the evidence and of the circumstances in which the evidence was discovered.

As a judge, however, he is not at liberty to make a final determination based on social norms. At the most, he can seek more evidence, he cannot say what is acceptable behaviour permissible in these circumstances and what is not. He cannot say this woman is telling us a lie. He may think that he needs to know more to be convinced, and he may say that he needs to know more.

@saiyan0321

Please clarify the matter.

 

[Naofumi]

@TheGreatMaratha The thing I as saying yesterday. Probability is stupid, court should work on evidence only.

Misogynist pigs that judge and this Shantanu who's defending him.

 

[saiyan0321]

You didn't get the point. The judge has a perfect right to come to his own conclusions about the sufficiency of the evidence after examining the evidence made available to him. What people have objected to is that he made statements creating norms and limits on what is permissible and what is not permissible, and indicated that there was no need to seek further evidence.

As a judge, he might well decide that it is unusual behaviour to stay back after being raped, given that there was no restraint on leaving or on asking for help immediately, and he might proceed with his determination of the matter with a more searching scrutiny to find out the facts; if the behaviour had not been unusual, he might have taken much slighter evidence as convincing. That is his judicial weighing of the evidence and of the circumstances in which the evidence was discovered.

As a judge, however, he is not at liberty to make a final determination based on social norms. At the most, he can seek more evidence, he cannot say what is acceptable behaviour permissible in these circumstances and what is not. He cannot say this woman is telling us a lie. He may think that he needs to know more to be convinced, and he may say that he needs to know more.

@saiyan0321

Please clarify the matter.

Orders are often divided into the following.

1. the facts of the case or in appeal, the facts of the case and the order under appeal

2. The arguments placed by the counsels and what citation they have used and a major summary of the arguments.
3. The remarks of the judges and these remarks are very important since they take into consideration the arguments in place and what the judge thinks about the case and the issue in question be it of law or fact.

This part is very important since it is in this part that precedents are made and it is here that the skill and judicious mind of a judge is revealed.

The Indian legal system has talked about this to an extent as to what form of judicious remarks should be made or not.

Now in this case the judge declares his doubt that the victim's story, basically her chief statement is not believable.

Firstly let me point out that such remarks were not made in a final judgement but at bail stage as in the quoted part.

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".

As in the above we can ascertain that the petition was for bail and the order was for bail and not the final order of the case.

Bail is granted during the continuation of the case so we can safely ascertain that the case by no means at its last stages.

Now It is considered a convention of sorts by judges to specifically write short orders for bail. I have seen one page orders in bails. The reason behind, as enumerated by various lawyers in pakistan and i am sure in India as well, that the bail order is not a judgment or an inspection of the trial case. It is but a mere assertion whether there exists enough doubt in the reference for the allotment of bail and if so, it is not the job of the bail granting courts to pass remarks on the doubts or evidence of the trial case, even if that case is within that very court. Doing so would impede the right of both parties since the judge has made up its mind before it has given careful examination to evidence (it is very rare to find a bail being petitioned post the evidence stage. they are normally dont before the evidence stage and if its bailable then lawyers dont even bother to write effective grounds for bail since the offence is bailable and if its not bailable then they write grounds like delay in FIR, no corroboration e.t.c e.t.c), and that would mean that is such remarks are recorded say by a higher court then the lower court will be bound to those remarks and if its done by that very judge then it means that the judge has made up its mind before evidence is even given due consideration or the final arguments or cross examinations are given due examination. So here we have two conventions.

1. Bail orders are naturally short by judges so that the rights of both parties are protected. Believe me. 9 pages judgments have 8.5 pages of arguments and half a page of remarks. very very very rarely in very very landmark cases do judges enter into long remarks and most of it is on question of law rather than on fact.

2. Judges avoid remarks to muddy the case since as i highlighted that if a high court or supreme court judge's remarks would basically end the trial case. It is very common to have ongoing trial cases where case is at evidence stage and bail is in appellate forum of supreme court. I have seen countless citations where courts have highlighted that granting and non-granting of bail has no effect on the perception of the innocence of guilt of the accused. They keep the orders short to avoid this. Remarks to single "bail allowed at 50,000 e.t.c amount."

So his very action goes against convention, legal ethos and the very handling of the bail case as a judge. Shocking judgment. Let me delve into it more. His view even on evidence at bail stage, was not his place. Many senior criminal lawyers have highlighted that judges in bail orders, dont write anything they feel isnt concrete like 5 day delay in FIR or medical ocular didnt match ( even here they avoid it). His remarks on evidence were not needed much less the story of the victim. This was not his final judgment.


Now lets say if it was his final judgment. Would his remarks be considered positive? NO

Even then the judge can only highlight where he found the evidence to be lacking and where he found the story to be unrealistic. It is not his job to determine whether a woman should scream rape after rape or sleep. Not his job to determine what a woman in society should or should not do and this is echoed by the Justices of Indian courts themselves which have repeatedly highlighted that judges should pass their remarks after careful consideration and through proper legal wording as was stated in Ishwari Prasad Mishra v. Mohammad Isa [(1963) 3 SCR 722]

where it was stated

“There is no doubt that judicial administration should be fearless; judges must have full freedom to express their conclusions in respect of the evidence given by the witnesses before them without any fear or favour; and so judicial power to express its appreciation about oral evidence is very wide. But the very width of the said power must inevitably impose some healthy restraints upon its exercise.”

They highlighted that fearless judgments do not mean that judges are free to say whatever they desire but infact such fearless and expansive powers create self restrictions. There are other cases as well where such is highlighted and it is without a shadow of a doubt that a judge cannot pass such remarks outside the ambit of evidence or law. He must remain within the confines of a case and not determine what should be the appropriate action.

Would he dismiss a case simply based on the SOP a victim didnt follow even if the DNA report came conjslusive, there was corroboration on ocular-medical and there was no delay? would he still follow the SOP that a victim should follow to determine the story. Whether the victim is telling a lie or truth is irrelevant.

The judges remarks were irresponsible for a bail petition and his remarks, even if placed on a final judgment, would still be irresponsible as highlighted by the Indian supreme court.

Hope this answers your query jor

 

[Joe Shearer]

I suppose the honorable judge wants all Indian women to be ideal RSS zombies :

I feel very sorry for these women. For all women who are brainwashed by their men into taking regressive social attitudes. I think you know what I mean.

Firstly let me point out that such remarks were not made in a final judgement but at bail stage as in the quoted part.

Quite so; I know that these were remarks made at a bail hearing and all the more objectionable; how dare he pre-judge the matter? This is a bail hearing, for heaven's sake; it is not a murder case, so bail is permissible; it is not a case of the accused being suspected of leaving to avoid further examination. It is just a case of setting an appropriate amount. And that is it. Where do these remarks come in? As you pointed out, it is not a judgement, just a bail hearing.

it is not the job of the bail granting courts to pass remarks on the doubts or evidence of the trial case, even if that case is within that very court. Doing so would impede the right of both parties since the judge has made up its mind before it has given careful examination to evidence (it is very rare to find a bail being petitioned post the evidence stage. they are normally dont before the evidence stage and if its bailable then lawyers dont even bother to write effective grounds for bail since the offence is bailable and if its not bailable then they write grounds like delay in FIR, no corroboration e.t.c e.t.c),

Exactly.

Who writes an elaborate bail application? it is either a bailable offence or it is not. Full stop.

So his very action goes against convention, legal ethos and the very handling of the bail case as a judge. Shocking judgment. Let me delve into it more. His view even on evidence at bail stage, was not his place. Many senior criminal lawyers have highlighted that judges in bail orders, dont write anything they feel isnt concrete like 5 day delay in FIR or medical ocular didnt match ( even here they avoid it). His remarks on evidence were not needed much less the story of the victim.

That is what I found most appalling. Why was he revealing his determination in his own mind of the probable outcome? What fair trial is possible after this?

Even then the judge can only highlight where he found the evidence to be lacking and where he found the story to be unrealistic.

In effect, I hope you agree that it would be a case for seeking further corroborative evidence, not for making judgemental statements.

 

[saiyan0321]

Quite so; I know that these were remarks made at a bail hearing and all the more objectionable; how dare he pre-judge the matter? This is a bail hearing, for heaven's sake; it is not a murder case, so bail is permissible; it is not a case of the accused being suspected of leaving to avoid further examination. It is just a case of setting an appropriate amount. And that is it. Where do these remarks come in? As you pointed out, it is not a judgement, just a bail hearing.

I am frankly surprised. About a few days ago, i was reading a bail judgment which went 20 pages long. It was a supreme court judgment. 19 pages were filled with the arguments of lawyers and the various citations they had presented. In the last page did the judge remark that bail is granted since the grounds of delay in FIr is a serious matter and the prosecution is unable to account for the delay and the matter in question needs more investigation ( not create doubt but needs more investigation. He cant use the word doubt since that would be a pre-judgment as well) and the accused is wiling to cooperate in the matter as he has cooperated in the remand and recovery of articles with the police. Bail granted.

This was the entire remark text give or take a sentence or change the wording a bit.

 

[Joe Shearer]

There are other cases as well where such is highlighted and it is without a shadow of a doubt that a judge cannot pass such remarks outside the ambit of evidence or law. He must remain within the confines of a case and not determine what should be the appropriate action.

His social dictation was the most highly objectionable part of the proceedings. If we delve further, whom was he referring to, in setting norms? The whole of Indian society? That part of Indian society within Karnataka? and if so, why the distinction? A sub-section of Indian society in Karnataka? You see where I am going with this; what you might not see, for obvious reasons, is that a Dikshit saying such things is the most objectionable part; a Dikshit is a Brahmin, and this smacks of Brahminical norm-setting.

 

[saiyan0321]

In effect, I hope you agree that it would be a case for seeking further corroborative evidence, not for making judgemental statements.

In a final judgment, there is no need for seeking anymore evidence and the wording is often stated as, The prosecution failed to prove their case since the matter in question xyz and then on and on about how evidence was insufficient. Before then the courts passes no judgment anywhere and such judgmental statements that the reaction of the victim is weird has no place in an order. This is an abstract opinion completely irrelevant to the facts of the case. He can say that the victim delayed the lodging of the FIR and the delay is not reasonably proven to be of concrete reason e.t.c e.t.c but not the SOP

 

[Joe Shearer]

I am frankly surprised. About a few days ago, i was reading a bail judgment which went 20 pages long. It was a supreme court judgment. 19 pages were filled with the arguments of lawyers and the various citations they had presented. In the last page did the judge remark that bail is granted since the grounds of delay in FIr is a serious matter and the prosecution is unable to account for the delay and the matter in question needs more investigation ( not create doubt but needs more investigation. He cant use the word doubt since that would be a pre-judgment as well) and the accused is wiling to cooperate in the matter as he has cooperated in the remand and recovery of articles with the police. Bail granted.

This was the entire remark text give or take a sentence or change the wording a bit.

And that's it, and that's how it should be, for Heaven's sakes.

Your point, highlighting that any doubt is not to be expressed, and is inappropriate as showing a predisposition in the mind of the judge, but that further investigation might be sought in all fairness and in keeping with the appropriate judicial outlook, is exactly what I wanted to hear.

 

[saiyan0321]

His social dictation was the most highly objectionable part of the proceedings. If we delve further, whom was he referring to, in setting norms? The whole of Indian society? That part of Indian society within Karnataka? and if so, why the distinction? A sub-section of Indian society in Karnataka? You see where I am going with this; what you might not see, for obvious reasons, is that a Dikshit saying such things is the most objectionable part; a Dikshit is a Brahmin, and this smacks of Brahminical norm-setting.

Absolutely foolish and mind boggling. it was not his job. guilty or not guilty. why is one guilty? and why is one not guilty? The focus is on innocence of the accused. Is he innocent? if not then why? if so then why? where did this victim blaming come from? and its frankly very very shocking his remarks. He cannot set norms. Thats not his job. He can say what he wants whilst drinking chai in a group but in a court room, he has showcased an unprofessional attitude that would disappoint any legal mind that would read the judgment

And that's it, and that's how it should be, for Heaven's sakes.

Your point, highlighting that any doubt is not to be expressed, and is inappropriate as showing a predisposition in the mind of the judge, but that further investigation might be sought in all fairness and in keeping with the appropriate judicial outlook, is exactly what I wanted to hear.

That is the iron convention. You know even when not allowing bail the judges use the heinousness of the crime or weakness in bail argument rather than say 'Case looks open and shut to me". If a supreme court judge would say that then what session judge would go in the contrary?