In the wake of the furore caused over Chief Justice of India SA Bobde’s recent comments on marital rape, the Bar Council of India has come out in strong defence of the Supreme Court judges.
In a statement released on Thursday, 4 March, the Bar Council criticised “a handful of politicians” and “so-called social activists” for casting personal aspersions on the Supreme Court judges.
It further added that immediate steps need to be taken to stop the practice of “malicious media attack”.
On 1 March, the Chief Justice had asked a government employee if he would marry the woman who had accused him of repeatedly raping her. On the same day, while hearing a sexual assault case, he had said:
“When two people are living as husband and wife, however brutal the husband is, can the act of sexual intercourse between them be called rape?”
However, the Bar Council’s own justification in defending the Chief Justice’s remarks is factually incorrect, with a misplaced understanding of the law.
Valorising the Judges, Disregarding Critical Voices
In its statement, the Bar Council advocates complete impunity to the judges for their comments. At the same time, it berates the media for doing its job.
It claims that there is “hue and cry” over remarks made by judges, which don’t even result in orders, indicating that the public can’t hold judicial officers accountable for their public remarks and behaviour. The statement notes:
“Why any comment (which is not part of the judicial order or judgment) should be allowed to be made the subject for attacking the judges/institutions without any basis? Comments made by the judges, not resulting in the orders, have no legal sanctity, why then to raise such a hue and cry and such comments?”
However, even if those actual words don’t make their way to the actual judicial order, such comments made by the senior-most judge of the country hold the potential of validating those who perpetuate similar views in society.
Also, the Bar Council makes an overarching assumption that the remarks made by the judges do not reflect in their orders. But, judicial reasoning is not immune to the personal sensibilities of the judges, and the latter often makes an appearance in judicial orders as well.
Another assumption that runs deep in the Bar Council’s statement is that the comments made in criticism of judges are “without any basis.”
This shows a complete disregard of the narratives and reasons of those who have taken the courage to speak up against their perceived sense of injustice in times when law students are moving contempt of court petitions against tweets and caricatures.
Fact Check: Bar Council’s Incorrect Understanding of Age of Consent
The Bar Council has gone to great lengths to prove the Chief Justice’s comments aren’t derogatory. The statement notes:
“The occurrence of the alleged sexual assault is of 2014. Both the alleged victim and alleged accused were of the same age group. The girl was 16 years old and was not a minor as per the existing law (under section 376 of IPC) at that time. She was very much able to give consent, which she gave, and they established sexual relationship. It continued for around 2 years and subsequently an agreement for marriage was signed between the parents of both the parties.”
The said statement is factually incorrect as it mentions the legal age of consent at the time of the alleged incident of sexual assault to be 16. The incident took place in 2014, two years after the passing of the Protection of Children From Sexual Offences (POCSO) Act, which clearly states that any person below the age of 18 can’t give valid consent for sexual intercourse.
In addition to this, the provision of rape under the Indian Penal Code (Section 375) was amended in 2013 to state that a girl below the age of 18 is legally incapable of giving valid consent for sexual intercourse. This amended provision came into force a year before the alleged incident referred to by the Bar Council took place.
Alienating Woman From Her Own Consent
The Bar Council’s narration of the alleged incident of sexual assault not only suffers from legal fallacy, but also commits the wrong of unilaterally assuming that the alleged victim had consented to the sexual act.
That takes the agency away from the woman, violating her procedural rights, the law on rape, and her fundamental right to fair trial.
Advocate Radhika Roy claims that the Bar Council’s narration of the incident passes the value judgment while missing out on key facts. She says:
The survivor alleges being repeatedly sexually exploited by the accused, which is something the Bombay High Court also acknowledged in its order cancelling his anticipatory bail. Further, the promise of marriage allegedly only came up after the survivor was stalked, raped, threatened with acid, attempted suicide, and was on the verge of filing an FIR against the accused.
Roy further questions the Bar Council on what basis it has “confidently concluded without a trial” that the survivor had given consent to the accused when she has categorically denied the same at every juncture. She believes that it’s an “atrocious statement” and “must be withdrawn at its earliest with an unconditional apology”.