Gender injustice: When Indian judges get it wrong

by Nita Bhalla | @nitabhalla | Thomson Reuters Foundation
Wednesday, 8 January 2014 13:25 GMT

Gay rights activists walk inside the premises of the Supreme Court in New Delhi, which has thrown out a 2009 ruling by a lower court that decriminalised gay sex. December 11, 2013 REUTERS/Anindito Mukherjee

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The Indian judiciary is a male-dominated club and the chauvinistic views of many of its members make it a difficult and daunting task for women who are victims of sex crimes to get justice

An Indian judge who called pre-marital sex "immoral" and against the tenets of every religion has been criticised by activists who say his remarks highlight gender insensitivity within the judiciary and the challenges faced by victims of sex crimes in seeking justice.

Judge Virender Bhat, who presides over a fast-track court which hears cases of sex crimes against women, made the remarks after ruling in one case that there was insufficient evidence that a man had duped a woman into having sex with him by promising marriage.

According to the Indian Penal Code, a man who has sexual intercourse with a woman after obtaining her consent on the false promise of marriage is committing rape.

"In my opinion, every act of sexual intercourse between two adults on the assurance of promise of marriage does not become rape, if the assurance or promise is not fulfilled later on by the boy," the judge said.

"He may or may not do so. She must understand that she is engaging in an act which not only is immoral but also against the tenets of every religion. No religion in the world allows pre-marital sex," he added, acquitting the accused of rape.

Activists and female lawyers have criticised Bhat's remarks, saying that such statements deter victims of sex crimes from coming forward with complaints.

"The religion of the court is the Constitution. The court is only required to appreciate the evidence and find out whether it is a crime or not," said human rights lawyer Vrinda Grover.

"Such statements have a serious impact on society as victims become scared of complaining by seeing the attitude of the courts," she said, adding that Bhat should not be allowed to preside over a court which deals specifically with sex crimes.


This is not the first time that Bhat has been criticised over the rulings he has given in sex crimes cases.

Last month, the Delhi High Court criticised him for making “gender biased" and "insensitive" comments when giving his verdict in a similar case in October.

The Times of India had quoted Bhat as saying that women in the 19 to 24 age group 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."

The Delhi High Court said his remarks were not based on any evidence on record but on his own personal knowledge of women. "Judicial pronouncements which are gender biased may be used as a standard by the police personnel and prosecutors in making decisions on how they should investigate and prosecute cases," the High Court said.


Activists and lawyers say Bhat's views reflect those of many male judges.

For example, the Bombay High Court said in May 2012 that married women should take a cue from the Hindu goddess Sita, who left everything to follow her husband Lord Rama to a forest for 14 years, while hearing a divorce petition filed by a man on ground that his wife was unwilling to relocate to his new place of work, according to a Times of India report.

 In another case, in which three men were found guilty of gang rape, the Supreme Court reduced their jail sentence to 3-1/2 years on appeal from the 10-year sentence imposed by a lower court, on condition that each of them paid their victim 50,000 rupees ($800) in compensation. The court heard that the three men and their victim were now happily married to different people and wanted to live peacefully, the Indian Express reported.

Activists say the Indian judiciary is stuck in a time warp over sex and gender issues, largely because the profession is dominated by men, and women find it difficult to join what is in effect an elite old boys’ club.

According to the Hindustan Times, India’s Supreme Court currently has two women out of 29 judges, while the country's high courts have 52 women judges out of a total of 650 - just eight percent, compared with 23 percent in England and Wales, according to the Guardian newspaper.

Indian Chief Justice P. Sathiasivam has admitted that much more needs to be done to boost the recruitment and promotion of women in the judiciary.

"High courts should be more proactive in designating women advocates as seniors. Even if there aren’t many applicants, the court should designate (women advocates) on its own," Sathiasivam said in an interview with the Hindustan Times.

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