Imagine being a judge who is tasked with delivering a verdict in a case involving sexual harassment. Let’s say, a case of groping by a boss. The alleged offence has happened in private, and by its very nature, in the absence of eye-witnesses. There is no physical scar that the judge can at least hark back to substantiate the allegation. So, as far as the judge is concerned, it is just the accuser’s word against the accused.
While we say that we should believe all victims, almost everybody will agree that justice delivery should be on a higher footing than that. Then there are the consequences of a judgment to reckon with. Sexual offences carry typically harsher sentences. It is easy for keyboard warriors to outrage that a judge has pronounced in a certain way — but the judge has to bear a tremendous weight of conscience in cases where there is no tangible evidence to go by (as opposed to a case like murder, or fraud, where there is a body, or some proceeds of crime, to base a judgment on). Perhaps this is the reason why so often, we are left wondering why even women judges often give the benefit of the doubt to the accused in cases where the evidence is scant.
To be sure, it is not that the Indian judiciary does not convict based on the uncorroborated testimony of a complainant in cases of sexual offences — even if the complaint was made with extreme delay. It does. But in these cases, the circumstances around the alleged offence, and how convincing the witness sounds, become important.
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If this is how a judge reasons through a conviction (assuming the judgment is a product of thorough reasoning), imagine how much more difficult it would be to decide on grant of bail. In last week’s controversial judgment, where a Sessions Judge in Kerala granted bail to accused in sexual assault cases, it might be useful to consider the scenario in which the judge did not give the reasons he did (that is, that the complainant was wearing provocative clothing, or in another case where he felt that the accused being a disabled caste activist, could not harass a Scheduled Caste woman).
What we have then is a case of groping, in layman’s language. The offences are punishable with sentences of up to three years (Section 354, if it is established, carries sentence of between one and five years), which in normal circumstances, would afford an accused a reasonable chance of bail. To argue that in sexual offences bail must not be granted, irrespective of these factors, is no different from the government legislating that in cases involving a threat to national security (under UAPA, for instance) bail should not be granted until innocence is proven. As Supreme Court Justice Sanjay Kishan Kaul said recently, bail cannot be denied merely because it is perceived that ultimate conviction is uncertain and might take far too long.
Meanwhile, in England, a Premier League footballer who is accused of rape is still playing football (presumably, as his identity cannot be revealed) because of the protections afforded under English law.
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Pronouncements in cases involving sexual offences have yielded to controversy more often than not in recent times — for good reason. ‘Provocative clothing’ or ‘[scroll.in/latest/1010860/skin-to-skin-judgement-sc-quashes-bombay-hc-ruling-says-sexual-intent-most-important-ingredient]skin-to-skin touch’ were absolutely irrelevant considerations to the matters at hand. It is not for want of guidance. Last year, the Supreme Court laid down detailed guidelines for courts to follow in sexual offence cases. These include that “discussion about the dress, behaviour, or past “conduct” or “morals” of the prosecutrix, should not enter the verdict granting bail”.
This judgment concludes saying that “Judges play – at all levels – a vital role as teachers and thought leaders. It is their role to be impartial in words and action, at all times. If they falter, especially in gender-related crimes, they imperil fairness and inflict great cruelty in the casual blindness to the despair of the survivors”.
So it is not that judges don’t have bright-lines they are forbidden from crossing. But moralistic notions are perhaps imprinted so deeply that mere diktats of law, or common sense, pale. Remember, these attitudes affect not only cases involving sexual offences. The Supreme Court judgment calls for the National Judicial Academy to speedily devise inputs for judges’ training so as to avoid stereotyping and unconscious biases that can creep into judicial reasoning.
However, it is foolish to assume that these values will be adopted by the judicial hierarchy smoothly. A society that is deeply patriarchal should not expect its judges to be suddenly egalitarian. In fact, the more the outrage machinery reduces issues of gender justice to black and white boxes of woke sensitivities, judges will feel obliged to take a conservative view to ensure they are not being misled.