A recent order by the Punjab and Haryana High Court suspending the jail sentences of three students of the OP Jindal Global University, accused of repeatedly raping a fellow student, has caused uproar in the University’s campus. As a part of the OP Jindal Global student community, I thought it was imperative to examine this order and understand the link between Indian understanding of morality and justice.Asserting MoralityIn the order, reference has been made to the prosecutrix smoking cigarettes and agreeing to drink beer. The order also refers to a “perverse streak” that the victim supposedly displayed because she agreed to purchase a “sex toy” as suggested by the accused.How does the possession of a sex toy change the nature of the inhumane mental and physical assault meted on her? It is ludicrous. The order not only assassinates the victim’s character but assumes a parens patriae character and almost paints the accused as the victims. It says that if these young minds are confined to jail for an inordinate amount of time, it would deprive them of their education and an opportunity to redeem themselves.The court in this order also grants the accused leave to go abroad in case they want to pursue higher studies.Also Read: A Case for ‘Pink’: Where Does a Woman Stand in a Real Courtroom?Constitutional MoralityIt is almost as if after examining the case, the character of the victim has served as a mitigating factor in the punishment that has been awarded to the perpetrators of the crime. The court cites the lack of gut-wrenching violence that usually accompanies or precedes such an act of rape.The victim was subjected to a year of non-consensual sexual acts and was forced to be a slave to the whims and fancies of the accused. The reference made to her buying condoms is not a sign of assent by the victim, but blatant coercion. It only adds to the atrocity she has suffered.\n\nIn the Triple Talaq judgment, the Supreme Court of India held that religious practice cannot trump modern constitutional morality. Hence, it is incumbent upon us to examine what constitutes this “modern constitutional morality”. Dr BR Ambedkar said: “The principle of constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to sustain the value of such a morality”.Perceiving Women through the ‘Traditional’ PrismPart III of the Indian Constitution grants citizens various important rights, such as freedom of speech and expression. It prohibits discrimination on the basis of sex or religion. The right to life under the Constitution of India also encompasses the right to live with dignity.The term dignity, as interpreted in an Andhra Pradesh High Court judgment (1998), examining the constitutionality of beauty contests, said that such contests which are organised in a manner which offends dress norms or exposes the female body in a manner which offends its modesty and ends up subjugating social and moral values are legally prohibited. The idea of social and moral values is too wide in its ambit. India is a vast country with diverse cultures with people belonging to different socio-economic backgrounds.Even while the Supreme Court upholds the equality of women, it finds it necessary to find a basis in Indian culture. In the case of Shabnam and Ors vs. State of UP, the court said:\n\nIndian culture has been witness to for centuries, that daughters dutifully bear the burden of being the caregivers for her parents, even more than a son. Our experience has reflected that an adult daughter places greater emphasis on their relationships with their parents, and when those relationships go awry, it takes a worse toll on the adult daughters than the adult sons.Taking a Realistic View of SocietyEven in cases of rape, whenever the prosecutrix’s honesty has been questioned, the Supreme Court repeats the statement that in Indian culture, a woman-victim of sexual aggression would rather suffer silently than falsely implicate somebody. Rape is an extremely humiliating experience for a woman, and until she is a victim of a sex crime, she will not blame anyone but the real culprit. This idea only strengthens the moralistic view that women are and must be ashamed of sexual crimes committed against them.The judiciary must take a realistic view of society in its decision, but repeating such statements goes against the progressive nature imagined for, and expected from, the justice system.Also Read: Scarlett Keeling & the ‘Pink’ Girls Could’ve Been More CarefulIn the Name of CultureInstead of focusing on the nature of crime committed, more emphasis is given to a “ghost culture” which cannot be pinned down. A woman must not be made a goddess. She is human and has flaws like everyone else.In the case of Amit Beri and Anr vs Smt Sheetal Beri, the Allahabad High Court, while deciding the custody of a child, paid undue attention to the fact that the mother frequented nightclubs. It is a known fact that nightclubs exist, and that people visit them. The court acknowledged that the mother was earning and was financially secure to take care of the child, but ruled against her. In her defence, the mother said she only attended “family parties”. It is absurd to imagine that a grown woman has to give reasons for her independent decisions. This is an example of internalising misogyny.In another case, the court emphasised on the value of joint family and brotherly harmony as a part of Indian culture. In a case against a Tamil film asking for the removal of U/A certificate granted to it, the counsel for petitioner argued against a particular scene, featuring two women dressed in towels, with one smoking a cigarette and advising the other about how to win over a man. The petitioner called the scene a degradation of culture and said it reeked of moral depravity which would prove dangerous for the female audience.Such arguments continuously being made by advocates who must be beacons of social change and justice in society is abhorrent, to say the least.Also Read: Have You Heard This Story Before?: Varnika Kundu Case and Pink(The writer is a third year law student at OP Jindal Global University. Her interests range from cultural and societal behaviour to politics and wants to uncover the gaps in the legal system. This is a personal blog and the views expressed above are the author’s own.The Quint neither endorses nor is responsible for the same.) We'll get through this! Meanwhile, here's all you need to know about the Coronavirus outbreak to keep yourself safe, informed, and updated. The Quint is now available on Telegram & WhatsApp too, Click here to join.