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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.
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:
However, the Bar Council’s own justification in defending the Chief Justice’s remarks is factually incorrect, with a misplaced understanding of the law.
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:
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.
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.
The Bar Council has gone to great lengths to prove the Chief Justice’s comments aren’t derogatory. The statement notes:
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.
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.
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:
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”.
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