24, Oct 2019 | Sanchita Kadam
Recently we saw two judgments, one from a district court and one from a High Court, both dealing with gender justice (the rights of women and crimes against women) and both resulting in contrasting outcomes. While the lower court, in a civil case, upheld and recognised a woman’s maternity benefit to be an integral right, the High Court –in a criminal appeal related to acquittal in a gang rape case–dismissed a leave to appeal against an acquittal order in a case of alleged gang rape.
India has a strictly hierarchical rungs in its judiciary. Crucial issues of both interpretation and access to courts and justice involve all these levels. Not enough debate and discussion, however, examines the verdicts from our different levels of courts especially around expanding the core issues of rights based jurisprudence. Is it always our higher courts that deliver substantial justice?
While the higher judiciary is face of the national judicial system in international circles, it is the “lower courts”, the district judiciary even, that is face of the judiciary for the common man of this country. It is the judges at the lowest tier in the judicial hierarchy who are the backbone of the judicial system and have to bear the burden of major bulk of litigation.”
The tendency to see breakthroughs in rights based interpretative jurisprudence coming from only the higher courts has severely limited the spread of a human rights consciousness and discourse in our lower courts. While there are a range of judgments on core issues, the rationales behind them are also varied. Although the higher courts do keep setting precedents for the lower courts to follow, there are often times when the lower courts give out judgments that actually become stepping stones for expansion in not just core constitutional values but the most evolved interpretation of these. As often, it is the “higher” courts that, in fact, regress from these breakthrough interpretations.
Two recent judgements, one of a district court in Delhi which upheld the maternity benefits of a woman to be within the mandate of law and the other of the Punjab and Haryana High Court which dismissed a survivor’s leave to appeal against acquittal in a gang rape case.
Although the first is a civil case and the latter involves criminal law, both cases relate to gender justice. In the latter, the Court let “no injury marks on victim’s private body parts” become a rationale for acquittal. In the first, the district court upheld a women’s right to maternity benefits and observed that these are mandated by law. The High Court –albeit in an appeal against acquittal in a gang rape case where the standards of evidence and proof need to be thorough — failed to take a cognitive approach and dismissed the Victim Survivor’s leave to appeal. In doing so, the Court deprived the Survivor’s case to even be heard for reconsideration of issues.
The Punjab and Haryana High Court judgement (Chandigarh v. Amit Kumar and ors.)
After the incidence of the Nirbhaya case in Delhi some core amendments were made to criminal law on the recommendations of the Justice Verma Committee. In cases where a serious accusation like gang rape is made, it is expected from the Court that it reconsiders evidence to ensure that no miscarriage of justice takes place.
In Gorle S. Naidu v. State of A.P., the apex court had held that in an appeal, the paramount consideration of the court is to ensure that the miscarriage of justice is prevented. It is a matter of unfortunate and wide practice all over India that investigations generally are unprofessional, especially when they involve gender, community/caste driven targeted crimes. Evidence gathered is insufficient or the prosecution (which in our system almost always means the state unless the Victim or Complainant has availed of amendments to the CRPC) fails to adequately represent the victim and hence these factors are ought to be borne in mind by the courts while considering cases of rape or of grievous hurt caused to a woman.
In this case, the High Court’s speaking order is based on certain assumptions: that since the victim was not intoxicated she should and must have raised an alarm or a hue and cry while being confined in a place for two days.
The contention of the main accused, that this was a false implication being made by the victim’s father as the case in fact related to a relationship between the prosecutrix and him, and that the family members of the prosecutrix, in order to teach him a lesson, have concocted a false case. The High Court has not only failed to evaluate whether there was any other reason why the Victim would not, or could not raise an alarm for two days. Besides, during trial, it appears that no evidence of any consequence was submitted by the accused in his defence; yet the prosecution was held to have given inadequate evidence.
The Court also observed, and erroneously concluded, that since, as per the medical examination, there were no injury marks on the private parts of the prosecutrix, this meant that “the doctor did not find any injury on the person of the prosecutrix, from which, it can be inferred that she was a consenting party to the sexual intercourse.”
Procedural duties of Court in a case of Gendered Violence
The trial court’s order may have had infirmities but in appeal the appellate court has the opportunity to right any wrong, to prevent miscarriage of justice or under appreciation of evidence. The High Court could have exercised its powers under section 386 of the Code of Criminal Procedure (CrPC) to direct that further inquiry be made or under section 391 of CrPC take additional evidence by itself or direct it to be taken by the trial court.
In Dila v. State of U.P. the trial court had, among other things, acquitted the accused because of absence of injury caused by the country made pistol and in this case the High Court in its appellate jurisdiction had reversed the acquittal since the trial court had taken a view opposed to the weight of evidence before it and the Supreme Court had upheld the High Court’s decision.
In Krishan v. State of Haryana the Supreme Court had held that it is not expected that every rape victim should have injuries on her body to prove her case and the High Court has failed to appreciate and take into account this precedent set by the apex court.
Besides as emphasized by Citizens for Justice and Peace, in all its legal interventions since its inception in 2002, sections in the CrPC, Section 311 with 165 of the Indian Evidence Act, give powers to the presiding judge to summon witnesses, and proactively intervene during trial. Section 173(8) empowers the court to ensure that the agencies investigating the case leave no stone unturned to tie up the loose knots in criminal cases.
“In the case of a defective investigation the Court has to be circumspect in evaluating the evidence and may have to adopt an active and analytical role to ensure that truth is found by having recourse to Section 311 or at a later stage also resorting to Section 391 instead of throwing hands in the air in despair. It would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.” — Karnel Singh v. State of M.P. [1995 (5) SCC 518]
“[I]f the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. The contaminated conduct of officials should not stand [in] the way of Courts getting at the truth by having recourse to Sections 311, 391 of the Code and Section 165 of the Evidence Act at the appropriate and relevant stages and evaluating the entire evidence… It is no doubt true that the accused persons have been acquitted by the trial Court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of law and no sanctity or credibility can be attached and given to the so-called findings. It seems to be nothing but a travesty of truth, fraud on legal process…” — Paras Yadav and Ors v. State of Bihar [1999 (2) SCC 126] as quoted in the Best Bakery case.
“Justice has no favourite, except truth. It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice.” — Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble: [(2003) 7 SCC 749]
In the famed Zahira Sheikh case especially, there are several serious observations on the role of the trial court: “[D]iscovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice… [I]n a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and [are] harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society [are] not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice — often referred to as the duty to vindicate and uphold the ‘majesty of the law’…
“The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court…
“If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.” — Zahira Habibulla Sheikh v. State of Gujarat [(2004) 3 SCC 158]
While acquittals in cases of accusations of rape due to lack of evidence are not uncommon, they point us to a fragile state of affairs. Often, they also show up the entrenched patriarchy of the judiciary. The argument that there are, in fact, some proven incidents of false reported rape cases, the number of such incidents remain insignificant. According to the NCRB (National Crime Records Bureau) data of 2016, in our country, there are four incidents of rape every hour and only 1 in 4 rape cases end up in conviction, making such acquittals even more worrisome.
Delhi District Court (Delhi Council for Child Welfare v. Navneet Kumari)
In this case the respondent, female employee, was terminated from employment without being given a show cause notice, as she failed to report to work after her maternity leave got over. The appellant was convicted by the trial court under section 21 of the Maternity Benefits Act but was let off after admonition and was directed to pay compensation of Rs. 2.5 lakhs to the female employee.
The Court made reference of Municipal Corporation of Delhi Vs. Female Workers (Muster Roll) and anr whereby the Supreme Court had held that
“Women who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the place where they work; they must be provided all the facilities to which they are entitled.”
The Court also stated that Grant of maternity benefit is not a matter of charity; it is a positive mandate of law as has been held by the Hon’ble Supreme Court. The Court also laid emphasis on the preamble of the Maternity Benefit Act and also pointed out that the appellant was a State agency and hence was also bound by the Directive Principles of State Policy as also Articles 14 and 15 of the Constitution of India.
The Court also relied upon a Delhi High Court judgment in Dr. Ankita Baidya vs Union of India & Ors wherein it was held thus,
“The ability of woman to create, nurture, and sustain, life, is celestially unique, and, even in the most conservative and puritanical of cultures, commands reverence and respect. The protection and preservation of this ability is central to the most basic human rights which govern existence, and any dispensation, customary or in statute, which derogates therefrom, is constitutional anathema. Adverse consequences can never be allowed to visit any woman, solely by virtue of the fact that she availed maternity leave, perhaps in excess of the maximum leave admissible..”
Two rationales from two different courts, one from the “higher” judiciary the other from our judiciary’s very first rung of our courts. Both involve interpretations of the law in cases of gender justice.
Although the nature of the two cases is substantially different, one being a civil offence and the other involving a violent crime, the underlying principle involved the evaluation of the standing of a woman when an offence is committed against her.
While, in criminal cases, courts must broadly follow the principles of presumptive innocence, this cannot come in the way of fair dispensation of justice, especially in cases where crimes involve inherently structural powers and hierarchies; in this instance patriarchy and its attendant view of, and violence against women.
CRM-A No. 1887-MA of 2017 decided by High Court of Punjab and Haryana on October 16, 2019
 AIR 2004 SC 1169
 https://cjp.org.in/victimology/ (By a 2009 amendment to the Code following the famed Best Bakery Case, Parliament amended Section 372 of the CRPC whereby Article 24(8)(2) was inserted to give the Complainant/Victim statutory right to intervene and assist the prosecution in a criminal trial.
 AIR 2002 SC 3387
Criminal Appeal No.1342 of 2012 decided by Supreme Court on May 16, 2014
C.A. No. 27/2019 decided by Tis Hazari Court, Delhi on July 3, 2019
 2000 (3) SCC 224
 W.P.(C) 8748/2018 decided by Delhi High Court on February 1, 2019