03/07/2015 12:19 PM IST | Updated 15/07/2016 8:25 AM IST

Why Do Judges Fail To Comprehend The Nuances Of Gender Discrimination?

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A security personel walks in front of the Indian Supreme court in New Delhi on August 27, 2014. India's top court said lawmakers with criminal backgrounds should not serve in government, with 13 ministers facing charges for attempted murder, rioting and other offences. The ruling is likely to put pressure on right-wing Prime Minister Narendra Modi, who swept to power this year pledging clean governance. AFP PHOTO/ SAJJAD HUSSAIN (Photo credit should read SAJJAD HUSSAIN/AFP/Getty Images)

While delivering a judgement on whether the Madhya Pradesh High Court was right in converting the sentence of a convict charged under Section 376 read with Section 511 ( attempted rape ) to Section 354 (outraging the modesty of a woman), the Supreme Court took the view that by reducing the sentence to little over one years, the High Court was being influenced by a suggestion that the parties had compromised. The sentence was accordingly reduced by the High Court to the sentence undergone, that is about one year.

The legal basis of the judgement is unclear. The incident is of 27.12.2008, at a time when Section 376(2)(f) did not exist on the statute book, having been inserted in 2013. In these circumstances, having regard to the fact that no such offence existed in 2008, how could a trial court convict under 376(2)(f)? Having regard to the fact that the girl was only 7 years of age and having further regard to the fact that there may not have been any "sexual intercourse", which is a precondition for conviction for rape, the High Court probably converted the conviction to one under Section 354, the only available section at that point. In that case, the High Court did not wrong. Since I have not read the two judgements, I cannot say so conclusively. The Supreme Court does not explain this mystery--it neither agrees nor disagrees with this part of the judgement.

Assuming this interpretation is correct, this leaves the question of sentence by the High Court which was a little over one year. The maximum sentence under section 354 at the relevant time was 2 years. Now comes the real issue in the case, namely the issue of a compromise. It was the case of the accused that there was a compromise. The Supreme Court records that the compromise was rejected on the ground that the offence is non-compoundable. The High Court imposed a sentence of one year, (as against two years minimum) and the Supreme Court seems to suggest that this was because of the suggested but rejected compromise.

What is not understandable is why, while disagreeing with the High Court did the Supreme Court send the matter back to the High Court for reconsideration. Was it not possible, in these days when we talk of fast-track justice for women facing sexual violence, to decide the matter by calling for the record of the case, something that the Appellate State is bound to do anyway. The remand would delay the decision by a few more years--the incident was of 2008. The woman would by the time the matter was finally decided, be a young adult. This would also have brought clarity to the questions whether Section 376(2)(f) is attracted at all.

While we welcome the observations that there can be no compromise in a rape case, the reasons for articulating this proposition seems misogynist.

If the "body of a women is a temple", so is that of a man. Why would a rape of a woman ruin her reputation and not that of the rapist?

"When the human frame is defiled, the purest treasure is lost". Would this not be true for man, woman, child and transgender?

"Dignity of a woman is part of her non-perishable and immortal self and no one should ever think of painting it in clay." Really?

Is this not equally applicable for any gender?

While the link between dignity and violation of bodily integrity and rape is welcome, I see no reason why dignity under our Constitution should be treated as a gendered concept. In other words, violation of bodily integrity of any living being must be a violation of the fundamental right to life under Article 21 of the Constitution of India and not a virtue confined to women.

Alas, we still do not have a jurisprudence of Article 21 when it comes to women in this country nor do we see sexual abuse of women as a constitutional wrong.

Well-meaning judges can end up going horribly wrong when their protectionist attitude towards women dictated their judgements.

Or perhaps were the judges addressing Justice Devadasan of the Madras High Court? if they were, it seems a very circuitous way of holding High Court judges accountable for their judgements. Moreover, that judgement of the High Court of Madras has been frustrated by the brave women who has said that she will not go for mediation and no force on earth can compel her to do so.

That leaves us with the question of dealing with the inability of judges to understand what gender discrimination is all about, a question for which at this stage I have no answer.

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