Once Charles Fourier said “One could judge the degree of civilization of a country by social and political position of its women.”
Rightly said but outlook of judiciary for women cannot be ignored. The judges presiding over a bench for dealing cases are not only lamp bearer of a society or are not there just to prevent justice from any harm but also reflects the mindset of the whole society to which they belong. The situation of a woman in society depends upon sociocultural perception of society towards women. We have been very fortunate to born on a land where ideology like “YATRA NARYASTU PUJANTE RAMNTE TATRA DEVTA” used to prevail but the contradiction between ideology and reality is not oblivious. In pre-vedic and vedic era women were used to be defied. The offence of any kind was regarded as an intrusion to her bodily integrity – a violation of her self-esteem, dignity and chastity (in case of rape). However, this ideology faded away as the years rolled by and status of equality gave way to the establishment of male chauvinistic and dominant society.
A greater decline in the position of women in society owe much to foreign invasion. Before independence every Indian was a victim in some way or the other but in the period just after independence till seventies or eighties judicial system was much conservative and narrow minded for women.
There are thousand of women in our country crimes against whom go unreported. Those who raise their voice against an offence and try to feel the light of day land themselves into woeful predicaments. The insensible and pachydermatous conduct of investigation, prosecution and then the judiciary further more traumatize and victimize the one whose honor has been killed brutally.
CASES JUST AFTER INDEPENDENCE WHEN JUDICIARY WAS CONSERVATIVE
There are few cases, the judicial pronouncement in which destroy the faith one has in the power of justice. Be it the case of Tukaram & Ors. v. State of Maharashtra in which the court refused to accept the statement of the tribal girl was raped in Police custody. No matter how many amendments were made in the Criminal Laws later on but the insensitivity of judiciary is clearly visible. The case of Pratap Mishra v. State of Orrisa in which the Supreme Court construed rape of a woman by 3 NCC cadets as a consensual sexual intercourse. The consent was obtained from her husband held hostage to whom she was not legally wedded. The court also stressed upon the fact that she was a midwife and therefore experienced of sex and not even the strongest man on earth could ever dare to rape her. Shocking and disgraceful but the reality stands out abrasive and nude.
Again in Raju v. State of Karnataka the human rights of a victim were violated. In this case the Supreme Court forfeited all the morality and reinvented the theory of provocation pertaining to rape cases because of young age and youthful passion. The court stated “…the prosecutrix had voluntarily allowed the accused person to have a merry time and sexual intercourse with her…the prosecutrix herself caused inducement to the accused who was a young man and only on such inducement ad under a grave provocation he had lost the mental frame and in a fit of passion which was natural in that age committed the offence of rape. This prosecutrix was a nurse who while travelling befriended with two youths who promised her to safely take her to destination and raped her while staying in a lodge.
EMERGENCE OF JUDICIAL ACTIVISM – A MILESTONE
The late eighties and nineties have witnessed the emergence of judicial activism. The victim-centric approach of justice gained momentum in the recent past which focuses on restitution and compensation to victims and their dependents. The very pertinent question- why should the evidence of a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? was raised in the case of State of Punjab v. Gurmeet Singh. This was for the first time when evidence forwarded by a victim of sexual assault were considered to be standing at par with the evidences of an injured victim.
RECENT JUDICIAL PRONOUNCEMENTS DEPICTING A MODERN AND SYNTHESIZED PERCEPTION
The judicial activism reached its heights in the case of Saakshi v. Union of India in which an NGO named SAAKSHI filed a petition seeking a declaration that all sorts of penetration would be included in sexual intercourse in section 375 of IPC and special provisions for sexually abused children should be made. Though the court declined to amend definition of rape but provisions for children victims of sexual offences were made such as special arrangements to be made so that victim or witness does not see the face or body of accused, a clear and not embarrassing language to be used in interrogation and adequate breaks would be given to such children. Since then judiciary has shown a humane and gentle perspective for women and broke its age old image of accused oriented and male chauvinistic. In the last year only, landmark judgments were made in myriad number of cases pending for a long time.
In Independent Thought v. Union of India, the Supreme Court held that sex with a minor wife (below the age of 18 years) is a rape. It is also the first judgment which provided a judicial support for making child marriage void ab initio. In this case constitutional validity of Exception 2 of Section 375 of Indian penal Code was challenged by a society named Independent Thought by filing a writ petition in the apex court. The discrimination between married girls of age 15-18 years and those who are not married was tried to removed.
In Mukesh and Ors. v. Union of India case , the pseudonym for which is Nirbhaya case the most brutal and inhuman rape case reported in the history of Indian judiciary wherein an adult girl was gang raped in a moving bus by 6 men including the driver and one of the culprits was a minor. The court pronounced death penalty to the 4 accused and age of minority in case of committing rarest of rare case was reduced to 16 years (one committed suicide in judicial custody) in a tribute to that innocent girl who lost her life for being a girl.
The judiciary has positively changed its out look for women over the years and positive change is expected to be inherited by our society. Indian judiciary is showing feminization and try to protect the interest of both men and women with equality.