Wednesday, February 15, 2017

Rape, pre-marital sex and disproportionate assets! Our egotistical Courts





They say that one of the pillars of Democracy is the Judiciary. They say that in India we have a vibrant, free and courageous Judiciary. They say that these qualities of our Judiciary are what differentiates us from China, and, I guess, Russia and a whole lot of African Nations. All these statements are not entirely wrong.

Over the past few weeks I have been getting extremely disturbed and agitated at how our honorable Judiciary has been going about doing its job. The trigger for this post has been the massive 570 page Supreme Court judgment in the Shashikala/J Jayalalitha disproportionate assets case.

But first a quotation.

“There are two circumstances that lead to arrogance: one is when you're wrong and you can't face it; the other is when you're right and nobody else can face it.” 

A few days ago I came across a Judgment passed by the Her Ladyship Sadhna Jadhav of Bombay High Court on 16th January 2017. The facts, as I can understand them after reading the extremely poorly worded Judgment run along these lines. An abandoned orphaned girl aged 9 was placed in a protective home. Subsequently, Dominic Rodrigues and his wife adopted the child. The girl alleged that she was sexually abused by her adoptive father Dominic Rodrigues and in 2015 the child, still a minor, was being looked after by an NGO. The NGO filed a complaint against Dominic Rodrigues who was arrested. An application was made for bail. Various evidence was presented, one of which was a report by the supervisor of the protective home. The supervisor had asked the child to write her life story which the child did. The Judge, records in her judgment

“Perused the statement written in the handwriting of the prosecutrix [that is the child]. She has admitted that she used to do all dirty things. It appears that she was inherently abnormal and had sexual instincts right from her childhood, in all probabilities, because of the environment and atmosphere where she lived and the conduct of her deceased mother.”

Please do note the pathetic language from purely an “English” perspective. Please do now note the absolutely depraved mind of the Judge dictating the order. Could not this have been better worded? This is a Lady Judge of the Bombay High Court in 2017. This is a Judge sitting in Mumbai, not a Judge of the Bombay High Court sitting in Nagpur or other town. “Dirty things”! Is this what a High Court Judge should be recording in a Judgment?

Do you know the tragedy that follows? This is the next sentence of the Judgment

“Be that as it may, on the date of lodging of the report, the victim was about 17 years old. She had not disclosed the act of the applicant to the Supervisor of the protective home and has complained about it after a considerable lapse of time. The statement of the victim on the basis of which crime is registered, does not appear to be truthful and therefore, does not inspire confidence of this Court. The applicant has been in jail for almost 15 months.”

“Be that as it may.” The Judge has the audacity to write that? If that was so unimportant i.e. the “dirty things” that the child did, then why record them. Dominic Rodrigues the accused was set free on bail. He was freed not because the child “did dirty things” but because the complaint was lodged late, and the victim i.e. the child did not appear to be truthful.

So dear readers, I ask, if Dominic Rodrigues was to be released on bail, why bring on record a handwritten note by a child, a minor child? Is this the quality of justice we have to expect? Just thoughtless, cruel and egotistical are the words that come to mind. Why does the child have to painted with such a terrible brush?

Does it not make your blood boil?

You could read the entire Judgement here.

Then there is this other gem from the Kerala High Court. This is a Judgment dated 13th January 2017 by His Honor Justice P Ubaid. The facts here are as simple and uncomplicated. Frankly, this Judgment is important as it follows the new trend of recognizing that pre-marital sex between two consenting adults does not amount to rape if a promise to marry is broken.

Following the amendment to the Indian Penal Code, the definition of rape has been expanded by widening the definition of “consent” as an ingredient in rape. Lack of consent tantamounts to rape. A slew of cases came to be filed alleging that consent was obtained by promising marriage and by reneging on the promise, the consent was obtained fraudulently. Hence, in these circumstances pre-marital sex was without consent and therefore rape.

31 year old Ratheesh had pre-marital sex on several occasions at several places with 27 year old Ms. X - who has mercifully not been named in the Judgment. None of this is disputed. After perusing several emails and letters brought on record the Judge holds that

“Even a common lady or an uneducated lady cannot be deceived more than once or twice on a promise of marriage. Ms. X is a well-educated lady having a degree in Engineering. It is quite unbelievable that she could be easily deceived on a marriage promise on many occasions.”

Honestly, I applaud His Honor in using that logic to acquit Ratheesh. However, the Judge could not stop there. This is what he says twice in his Judgment

“I am well satisfied by the Ext.D1 and D4 documents that if at all the prosecutrix had any sexual union with the accused once, or more than once, it was with her full consent, as part of her unholy union with him.”

“Unholy union”? Really? Are you serious? Is His Honour a Judge, or a Priest or a parent? Folks, please remember we are in 2017! Why do Judges have to record such things, use such words and regress to antediluvian standards? Is it just ego, to place a mark on everything you do? To express an opinion on everything?

You could read the entire Judgement here.

Now coming to the Supreme Court Judgment on J Jayalalitha’s case. This is a 570 page Judgment. Even here ego is hard at work Both Judges delivered separate thought thankfully concurring Judgments. If the Judgment ran for 570 pages, did one Judge still have something more to possibly say that he could not say in 570 pages that he passed a separate Judgment?

Leave that matter aside for the moment. Frankly, I believe that it is time the corrupt are put in jail. But that is not the point. What bothers me most is the conclusion. I will tell you why.

The Trial Court convicted the Accused. The Court in Appeal, overturned the conviction and acquitted the accused. Fine, I could sort of understand that, Lower Courts are corrupt and/or incompetent and/or susceptible to pressure. One could say that the Judge hearing the Appeal did not suffer from any of these handicaps. After all, he was chosen and appointed by the Supreme Court to hear this case. Of course, he passed an 1100 page Judgment acquitting the accused. This acquittal caused huge uproar in all quarters.

Now we have the Supreme Court throwing the Appeal Court Judgment in the proverbial waste paper basket. The entire Judgment is set aside. Nothing was upheld. You have three different verdics on the same body of evidence. In all three Courts the accused had the best lawyers arguing. I am not questioning the correctness of any of the three Judgments. I am asking one simple question. Is there any competency in any Court? Is any Court expected to have a Judgment that is upheld? Is it all ego? Did the Appeal Court have an ego and overturned the conviction? Did the Supreme Court have a supreme ego and overturn the acquittal? Can anyone make any predictions on the merits of his case? Is there any consistency in Court precedents? Is this a shining example of vibrancy of Judiciary? I really have no answer.

To my mind this is all the more disturbing as the Judge to hear the Appeal was specially chosen by the Supreme Court. Were they such poor judges of competence that they never thought that this man would go so wrong and acquit the accused? I leave it to you to decide.

Now that you have read thru this post, do read my quotation again.





No comments:

Post a Comment