A cheeky witticism in litigators’ circle goes like this – if you have all the decks stacked against you, first try convincing the judge, if it doesn’t work, then confound, and if that fails, corrupt. Somnath Bharti, whose dogged determination to evade the law has earned him deserved notoriety, and whose estranged wife has levelled serious criminal charges against him, appears to have taken this irreverent joke with utter seriousness and deployed it as a legal strategy.
Litigants come in all hues and colours, and the roguish ones among them frequently resort to dishonest arguments. Well, that is their right, as every man is entitled to defend himself by all available legal means. But courts have a fundamental duty to exercise utmost caution so as not to be led up the garden path.
Unfortunately, the Supreme Court, which is hearing Bharti’s plea for bail, might be veering perilously close to abdicating this duty. Worse, it could well be condoning domestic violence, marital cruelty and egregious fraud. By issuing a notice to his wife Lipika Mitra, asking if she is agreeable to mediation, the court is conflating issues, mixing up civil law with criminal law – the requirements, substance and procedures of which are at wide variance with each other, and could well end up condoning actions, which, if proved, are simply despicable.
Of Grave Allegations and Muddled Judicial Thinking
On October 5, the court will hear Bharti again, and might decide whether he – presently in the custody of Delhi Police – deserves to be enlarged on bail while the allegations detailed in Mitra’s First Information Report (FIR) are probed. At the same time, the judges have found some credibility in Bharti’s repeated claim that the FIR is a culmination of “marital problems” only, which can easily be resolved through mediation. He has strenuously denied every allegation, and in turn has accused his wife of resorting to falsehood and strong-arm tactics (euphemism for blackmail). He has even gone so far as to claim that he’s a victim of political vendetta.
Undoubtedly, the case is a complex one with too many issues tangled together. This has been exacerbated by Bharti’s wild accusations hurled at almost everybody he could possibly think of, and some of which are indeed lugubrious but also reveal a crafty mind at work. After all, Bharti was a practising lawyer before he plunged into politics, and is well-versed with the ploys he can use to shield himself. The police’s bizarre and bone-headed obsession with his dog, which has generated a separate and inane media-circus, doesn’t help matters much.
Nonetheless, the court has little reason to lose track. It should be able to see through the fog and with appropriate judicial insight, segregate the serious from the banal, the urgent from the sly. There are two separate issues at stake here, and consequently, two different cases.
The first one – the FIR and its contents, is of much larger importance and merits attention and action. In that document, a copy of which has been reviewed by The Quint, Lipika Mitra has narrated in detail the cruelty Bharti inflicted upon her. She has also stated how he not only subjected her to fraud but also forged documents filed along with his nomination papers for the Delhi Assembly elections.
Significantly, there is the specific charge of attempt to murder – an offence under Section 307 of the Indian Penal Code (IPC) – because he allegedly tried to slit her wrists with a sharp knife. There are also charges of letting loose a dog upon her, and violently attacking her while she was pregnant and thereby endangering the life of the foetus as well as the mother. All these are serious, cognizable offences under various provisions of law and must be meticulously investigated and rigorously prosecuted.
The Delhi High Court, while turning down his bail plea on September 22, had judiciously recognised their import and significance.
The second one is the case for mediation. The stipulated guidelines for when matrimonial disputes are to be hopefully resolved through mediation have numerous shortcomings (sample this – they predominantly pertain to “educated couples” who are childless and are bickering over matrimonial property) and do not in any way accommodate cases of domestic violence or cruelty.
In this situation, should the court allow itself to be beguiled by Bharti’s wily tactics and lose sight of pressing matters?
Trivialising Violence, Aiding and Abetting Perpetrators
But this isn’t new. Domestic violence, in judicial discourse, is regularly, and almost habitually, made to fall prey to a sort of verbal inflation, whereby abusive behaviour, even if potentially life-threatening, is routinely whitewashed and passed off as either inconsequential, or trivial, or as the lies and half-truths peddled by mendacious or vituperative women.
In a patriarchal judiciary, overwhelmingly populated by men, there is a marked somnolescence towards reality – that battered women are not hyperventilating or paranoid beings crying wolf without solid reason. For instance, research reveals how judges, prosecutors and lawyers either by design, or because of implicit biases, marginalise and muzzle the voices of women victims. There is also research on how defence counsel, representing alleged perpetrators, try to pass off incidents of domestic violence as sporadic and jerky manifestations of “romantic love” and discredit victims’ testimonies in court.
Our apex court would be unable to escape criticism here. Only last year, it gutted the heart out of a penal provision which could rein in violent male partners from maiming, grievously injuring, or murdering their spouses. Reason? Apparently, hordes of “disgruntled women” were “misusing” the law. The problem becomes more acute in the absence of trained and sensitised judges who could possibly do justice to domestic violence cases, as is done in New York.
It is incumbent upon courts to not obstruct, even indirectly and/or subconsciously, investigations and resultant action in cases of domestic violence. Just in case the Supreme Court, for whatever reason, buys into the narrative of an accused whose proclivity towards violence is an established fact by now, it would only be setting itself up for trenchant criticism. And that would be a real pity for an institution beleaguered by all sorts of accusations, many of them mostly valid.
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