It is likely that on March 1, as he was preparing for his day in court, the Chief Justice of India was expecting a rather relaxed Monday. There weren’t any high-profile matters on his board for the day — just a bunch of unremarkable petitions, mostly relating to pleas for anticipatory bail.
Little did he know that by the end of the week, there would be widespread outrage; even calls for his ouster, for comments he made during the day’s hearing. Perhaps some context is useful for those not familiar with the Supreme Court.
Special Leave Petitions are, in common parlance, appeals against orders passed by high courts. The ‘losing party’ at the high court approaches the Supreme Court which first decides whether to entertain the petition, based on whether there are prima facie merits.
At this point, the other side is rarely present. So, often the hearing takes the form of an argument between the Bench (group of two or three judges) and the petitioner. The Bench relies solely on the order of the high court being assailed, as well as other documents produced by the petitioner. In case the Bench is convinced the petition is worthy of its judicial time, it issues a ‘notice’ to the opposite side, who then can present its defence during subsequent hearings.
“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”, the CJI is said to have asked during arguments in one of the many cases listed that day. The case pertained to a couple who was allegedly living-in. According to the petitioner/accused, the rape charges were filed after the relationship between the parties had turned sour.
In a different case, the CJI reportedly asked another man who was accused of raping a minor if he was willing to marry her. The petitioner had submitted, falsely perhaps, that there was once an agreement between the parties to be married, and that the intercourse was consensual.
When viewed in this context, the statements from the Bench aren’t as problematic as it appears at first glance.
A judge is expected to rule on the law based on the facts in question, which would require them to ask questions for the purpose of ascertaining the facts as it pertains to the case at hand. Non-consensual sex between a husband and wife is not classified as rape under Indian law (it ought to be; but judges must rule on what is, not what ought to be). What about unmarried couples who are living together? Or unmarried couples who have consensual intercourse expecting to be married, but which does not culminate in wedlock? These are questions the answers to which still remain grey (and often, dependant on specific facts of that case).
The minor’s case was more complicated. As it turned out, the agreement to marry was procured by the man only to dissuade the woman from filing a police complaint. Sex with a minor under the age of 16 is rape, even if consensual.
In both cases, the Bench finally refused relief to the alleged offender. However, the damage was done, as real-time tweets from court reports led to immediate outrage on Twitter. What is perhaps unfortunate that much of the outrage was led by those who know better —at the very least, that marital rape is not an offence under current law.
The regrettable consequence of the controversy is the possibility of increased restrictions on court reporting. In the past, even small errors by journalists have been latched on by lawyers to push for restrictions, though the court has so far stopped short of laying down rules.
More than one legal luminary has wondered whether court reporters should be permitted to report on hearings real-time, or just restrict reportage to published orders/judgments. Others have mooted basic qualifications for reporters, and so on. All of this is ill-advised.
Reporters ought to report from court-rooms, as was most recently highlighted when the high court judge hearing comedian Munawar Faruqui’s bail plea made disparaging remarks which revealed the judge’s mindset that resulted in denial of bail. There was public interest in publishing these remarks.
The CJI could be accused of being tactless, or maybe even flippant. But nothing that transpired on that day justifies calls for his removal. In fact, we must be afraid of the day when judges aim for political correctness.
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