Delhi High Court
Suo Motu Cognizance vs Suo Motu Cognizance on 19 December, 2013
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, V. Kameswar Rao
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: December 19, 2013
+ W.P.(C) 8066/2013
IN THE MATTER OF:
Suo Motu Cognizance
In Re: Order dated October 07, 2013 in SC No.34/2013
Represented by: Ms.Zubeda Beguma, Amicus Curiae
and Ms.Rameeza Hakeem, Amicus
Curiae
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 W.P.(C) 8066/2013 Page 1 of 7 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 W.P.(C) 8066/2013 Page 2 of 7 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 SCR 363 State 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.
W.P.(C) 8066/2013 Page 3 of 78. 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 W.P.(C) 8066/2013 Page 4 of 7 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 W.P.(C) 8066/2013 Page 5 of 7 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 W.P.(C) 8066/2013 Page 6 of 7 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 DECEMBER 19, 2013 SKB W.P.(C) 8066/2013 Page 7 of 7