Combating Patriarchy in the Judiciary

“You can’t easily fit women into a structure that is already coded as male; you have to change the structure” says Britain’s best-known classicist Mary Beard in her famous book, ‘Women and Power – A Manifesto’. It could not be more relevant to the current scenario in India in light of the recent events associated with the Chief Justice of India (CJI) Bobde’s comment on a rape case where he had offered the rapist to marry the woman raped by the rapist. The contemporary zeitgeist was filled with prospering feminism and gender equality until it took a U-turn to regress recently. And it is indeed a big blow to the feminist movements in India as it came from the judiciary that we find reliable. To nail the coffin, the recent viral video of a rape victim being made to parade with her rapist in a small town in Madya Pradesh, shatters the hard-earned status of women.

The grand display of patriarchy by the CJI when he asked the man who faced the charges of penetrative sexual assault under the Protection Of Children from Sexual Offences Act, 2012, and under Sections 317, 417 and 507 of the Indian Penal Code, shows the abysmal state of gender equality in our country. Zooming in to the case, the accused had asked the victim’s hand in marriage and when she refused, he forced his interests on her and raped her. The accused has repeatedly raped the minor girl for three years. The rape involved gagging her and tying her arms and legs before the penetrative sexual assault. The victim was terrorised by the rapist which prevented her from divulging this to her parents. The accused also carried a bottle of petrol and stalked her and had threatened to immolate her if she dared to let out what he did to her. The emotional trauma led the victim to suicide attempts which made the incident come to light in her family. The attempts to file a complaint by her family were prevented by the rapist’s mother through the promise of marriage. And when he reneged on his word, the victim’s family approached the court.

Neither the victim’s family, nor the judge seemed to have any objection in marrying off the victim to her rapist. A simple thought of how can a woman who went through emotional and physical trauma, consistently (which led her to attempt suicide), could lead a married life with her rapist, would have prevented both the victim’s family and the judge from suggesting marriage to solve the case. A married life involves physical and emotional intimacy. Will the victim ever be able to feel the intimacy with her rapist? The audacity of both the victim’s family and the judge to suggest marriage comes from the patriarchal template that directs wedlock as a solution to reclaim the chastity of a woman.

One must appreciate the backlash that the judiciary received for the CJI Bobde’s comment. But, it was not just a reaction to this one incident. It is the incipient anger amongst the public in response to the consistent display of misogyny arising from patriarchal sentiments by the judiciary. A few weeks ago, CJI Bobde, while rebuking the Center’s handling of farmer’s protests against the recently proposed farm acts, remarked on the women’s participation in the protests as why they are “kept” in the protests. He also asked “why are women in the strike? They should be asked to go home”. This irked the public and he was subjected to pillory. While he might have tried to allay the protests, his choice of words showcase the parochial values being ingrained in the society. “These words effectively reposition women back into the domestic sphere”, as Mary Beard writes in her book Women and Power.

Who “kept” women in the protests? Do women not have the decision-making skills to decide on joining the protests? More importantly, the economic contribution of women in agriculture is consciously being ignored here, which resembles the trend of the contribution of women in domestic work getting neglected. Not all farmers are men. Women are farmers too. They are affected by the farm acts too and they have every right to take part in the protest to claim what they deserve. Moreover, the remark also brings about the popular notion that women are weak. It emphasises the idea that women should be “saved” and “kept” from trouble by men. It might not have been the best of CJI Bobde’s intentions to debilitate the abilities of women. But, his remarks show that his understanding of the role of women in agriculture and the strength of women is extremely lacking.

Similarly, the Madhya Pradesh High Court offered bail to a rapist on the condition that he ties rakhi to the victim, in a recent hearing of a rape case. How did the court expect the victim to accept her rapist as her brother who would protect her and would not be her rape threat anymore, just because he tied a rakhi? Or did the court assume that the mental and physical trauma the victim faced is nullified by tying of the rakhi?

In all the above cases, the grisly crime of rape is treated as merely a setback on a man’s reputation. The woman was raped and the court struggles to retain the dignity of the man by making him “grant” the option of association through marriage to “save” her from the ignominy and as a result be magnanimous and provide her a life further. In the other case, the rapist is given the option of establishing a brotherly relationship with the victim which ends up making the trial inconsequential.

The biggest concern of all is the precedent that the judiciary sets to the public through such handling of trails and making misogynist remarks. A layman might consider raping a woman if she does not concede to marrying him as the judiciary would facilitate the marriage in a court hearing.

Where do these verdicts, decisions and remarks of the judiciary leave women in the justice system? The outcomes of such rape cases are almost never favorable to women. To rub salt into the wound, they also face character shaming and lose their dignity for “letting” a man violate her physically. Blaming of the victim should also be added to the list. Thus, the life a rape victim becomes extremely hard to lead just because she was affected by an unforeseen gruesome crime of rape.

Getting back to the courtroom, the investigation of a rape case for the victim is ruthless and extremely judgemental. The expectation that a woman should resist rape with reactions like shouting, attacking the rapist and other violent resistance is baseless. In such a recent incident, the court acquitted the rapists just because the rape victim fell asleep after the accused raped her. And that, to the court, was inadequate to conclude the crime as rape. No one can predict the reaction of a person to a rape. Do the judges of Indian judicial system base their understanding of a rape victim’s state of mind on Indian cinema references where all women who gets raped invariably shout and resist aggressively?

Thus, even if she had resisted the rape with the society-expected reactions like screeching and resisting with force, would that guarantee a woman of an escape from the rape? No, but, it would buy her a ticket to be a chaste, good woman in society. Such impractical expectations of a pure, modest woman shows us that the society segregates women into good ones and the bad. The bad ones, according to the society, deserve to get raped and the good ones are simply unfortunate that they got raped. Both ways do not look into the truth. Or worse, it hides the fact that rape happens only when the rapist chooses to rape. The society frees the criminal of all charges and alienates the victim. It is unfortunate that we get to witness the judiciary following this parochialism.

It is indeed true what Sohaila Abdulali writes in her book, ‘What We Talk When We Talk About Rape’, “…the narrative that refuses to acknowledge that, no matter who you are, if someone forces you to have sex, it is rape! The narrative says: good girls don’t get raped; bad girls can’t get raped. In either case, the rapists are off the hook. We’ve created a narrative that says that either it didn’t happen to you, or you deserved it.”

The subsequent measures taken by the judiciary to save its face of the disgrace of CJI Bobde’s remark “if you want to marry, we can help you” are only squalid attempts. The rules, commandments and guidelines issued by the Supreme Court to be followed by the judges for the cases involving sexual assaults is a much-needed move and yet it should have already been present in the system.

What we know is that rape is a menace, whether in India or elsewhere. But, it comes as a shock that the guardian of fundamental rights – the judiciary – is imbued with patriarchy and misogyny that it consciously or unconsciously is aggravating rape culture. This devastates the great plan of gender equality and women safety. Plans to expunge these problems now seem chimerical. The question Mary Beard poses in her book, “If there is a cultural template that works to disempower women, what exactly is it and where do we get it from?” could be the starting point of progress. Stirring up the hornet’s nest of patriarchy and nuking it, is the only way to bring about a real progress in women safety, empowerment and gender equality.

-Subiksha Kumar (Freelancer)

Picture: Representational (Credits –

Most Popular

To Top