At the outset, I apologize that this cannot be conveyed in a 280 Character Tweet or a story on Instagram that we are more accustomed to when consuming information, this requires a careful reading.
To start this article, it is extremely pertinent to draw a wildly appropriate observation from The White Tiger by Aravind Adiga when his protagonist said “Me, and thousands of others in this country like me, are half-baked”, published in 2008, this is still true in 2021 and allow me to illustrate how.
On the 5th of February 2021, a journalist seated in the court room of the Hon’ble Chief Justice Sharad Bobde was quick to grasp and publish an article implying that the chief justice, someone entrusted by the government to uphold the law and deliver justice asked a man accused of rape under the Protection of Children from Sexual Offences Act if he would marry the complainant before granting him Anticipatory Bail. Soon, various news channels, websites and ‘instagram’ news reporters started sharing this on their own channels and I don’t blame them, they were trying to get viewers while the topic was still relevant. This did not stop at news mediums but the citizens of this country, specifically the younger populace on social media platforms started sharing this news and called for his removal from office, even went as far as launching a petition campaign.
At a plain reading, yes, this interaction of the court is outrageous and makes the CJI well deserving of all the hate targeted at him. However, if we pay even the slightest attention to the facts of the case through orders passed by the lower courts, which I felt compelled to do as a law student, we see a completely different narrative emerging. This is a crucial narrative to the basic understanding of this case.
The hearing before the Hon’ble Supreme Court was a SLP against the order of the Bombay High Court filed by the accused Mohit Chavan after the Bombay High Court cancelled the Anticipatory Bail granted to him by the Additional Sessions Judge after the FIR was lodged by the prosecutrix.
The prosecutrix alleges that when she was about 16 years of age and, the accused aged 20 who was a distant relative repeatedly forced himself upon her and eventually raped her on numerous occasions while also threatening her with grave consequences if she reported the incident. Soon after she apprised her mother of the situation and when they decided to file an FIR, the accused’s mother along with the accused suggested that he should get married to the prosecutrix when she turns 18. An agreement on a stamp paper of INR 500 was executed for the same. However, when the accused backed out of the agreement, the prosecutrix proceeded with the filing of the FIR.
But this is just one side of the story, Mohit Chavan has the right to a free trial and is an innocent man until he is proven guilty and has a completely different version of the story. As per the submissions of the accused, he was in a consensual relationship with the prosecutrix and the intercourse was also consensual on each occasion. This was a fact mentioned in the marriage agreement which was duly signed by the prosecutrix and her mother. The agreement was executed after the mother of the prosecutrix became aware of the situation and insisted on filing the case unless the accused married her as soon as she turned 18. In fact, even after she turned 18, he did not marry her and there was no behest for the same on the part of prosecutrix. What is interesting is that the FIR was lodged only days after the accused was selected for the Maharashtra State Public Service Commission and given a government job.
On the basis of the above, the Addl. Sessions Judge recognized that the consent of the prosecutrix held no significance since she was a minor but he also recognized that since the prosecutrix could not offer any reason to justify the inordinate delay in filing of the FIR, there was a high possibility of false implication of the accused who was now a public servant. Hence, without any prejudice to the final judgement of the case, he allowed for anticipatory bail while also directing him to cooperate with the investigating officer.
While all of the above is relevant, at the same time I would like to state that if the prosecutrix’s allegations are found to be true, then the accused deserves every bit of the rigorous punishment which will be awarded to him. However, if they are not true and this is in actuality a malicious litigation only filed to pressure him into marriage, then the prosecutrix should be punished for the same.
Given the above facts, circumstances and contradictions between the two sides of this case, it is vital to know the intention of the accused relating to marrying the victim, which even if he does, would not absolve him of his crime and that is all the CJI was attempting to do. Indian law itself does not provide for this marriage that absolves a rapist, then how does it work? in a way similar to compoundable offences, with reference to the judgement delivered by the Apex Court in Gian Singh V State of Punjab which provides that a High Court can quash any FIR of a non-compoundable offence on the basis of a compromise between the parties under the jurisdiction provided in S.482 of the Criminal Procedure Code when –
- the compromise/settlement between parties and/or other facts and the circumstances render possibility of conviction remote and bleak;
- not to quash would cause extreme injustice and would not serve ends of justice and
- not to quash would result in abuse of process of court.
The compromise in these cases is the marriage, on account of spousal privilege established under S.122 of the Evidence Act in Indian law the chances of conviction are rendered extremely bleak and hence rapists are able to get away. This is a flaw in our society where victims of sexual crimes have been conditioned into believing that marriage absolves the offender and a majority of the blame for that rests on the archaic ideas about the institution of marriage which are further perpetuated by cases like these and not to forget Exception 2 of S.375 of the Indian Penal Code which does not recognize marital rape as an offence. Sound legal reform is needed in this area of law and it is harrowing to see how little significance it receives.
Now, coming back to where we started, half baked, we as individuals in a highly polarised society feel compelled to go down as the ones on the right side of history. We compete on who is more ‘woke’ and those who choose not to voice any opinion are regarded as being part of the problem. In this world where the voicing of the woke opinion has gained far more importance than the truth, we need to be extremely careful as to what we base these opinions on. The internet created the information age but off late, agenda specific news channels, social media peer pressure and other mediums of information reporting have put us into the Misinformation Age, so much so that accurate information is now a privilege.
To conclude it would be grossly unfair to not quote the Hon’ble Justice O Chinappa Reddy from one [(1987) 1 SCC 424] of his many monumental judgements during his time at the Supreme Court where he emphasized the importance of context, “interpretation must depend on text and context. They are the bases of interpretation, one may well say that if the text is the texture, context is what gives the colour. Neither can be ignored”. Till the time we don’t have context, we are half baked, and true knowledge is that which recognizes the context of the text. And the toxicity of opinions formed by half baked individuals needs no emphasis.
This article is written by Akshaja Singh, IIIrd year.
