A Bombay High Court judge expunges her comments on a minor rape victim, but the damage is done

On February 9, a senior judge of the Bombay High Court, Justice Sadhana Jadhav, passed an order expunging the comments she herself had made last month while granting bail to a man accused of sexually abusing his minor adopted daughter. The order read:

“The last four lines of paragraph [4] of the order passed on January 16, 2017, which stand expunged with the above clarification are as follows:

She has admitted that she used to do all dirty things. It appears that she was inherently abnormal and had sexual instinct from her childhood, in all probabilities because of the environment and atmosphere in which she lived and because of the conduct of her mother.”

The matter was taken up for hearing on an urgent application made by the police to expunge the comments passed by the judge. Beneath this short order lies the history of humiliation a rape victim is constantly subjected to during court proceedings, despite the vibrant anti-rape movement in the country in the last three-and-a-half decades.

The accused was represented by a reputed criminal lawyer and it is quite obvious that documents – including a letter written by the child to the supervisor of her shelter home at the time of her adoption – that formed the chargesheet were brought to the notice of the judge by him. It is also likely that the additional public prosecutor did not strongly object that the document had no bearing on the case and was incriminatory. What is shocking is that the judge made her comments in an open court, which were then reported in newspapers.

The victim, who has just turned 18, is a student. As a result of the multiple trauma she has suffered, she has had to undergo counselling and is barely recovering. What might have been the impact on this child when she read the judge’s comments calling her abnormal and saying she had sexual tendencies since childhood? Did the judge have the right to make such a statement when she had not even bothered to interview the child in her chamber and verify the facts before passing such derogatory comments about a minor victim?

It appears that the dignity and protection awarded to juvenile offenders is not available to a rape victim. Some measure of protection is awarded during the trial in sessions courts as they are held in-camera and the law forbids defence lawyers from relying on the victim’s past sexual history to prove the innocence of the accused. But it appears that High Court judges hearing bail appeals are not bound by these protective measures.

Multiple trauma

The High Court granted bail to the accused as he “has been in jail for almost 15 months, the investigation is completed and chargesheet is filed”, according to media reports. While noting that the chargesheet has been filed, it did not occur to the judge to pass directions to the trial court to complete the trial expeditiously, as per the mandate of the Protection of Children from Sexual Offences Act. Instead, the benefit of the delay was given to the accused to grant him bail. That the accused happens to be the adoptive father of an orphan child does not seem to have been a matter of concern for the judge.

The child was in Class 6 when she lost her biological mother to AIDS. She was thereafter taken in by a shelter home and put up for adoption by its supervisor. At this time she was asked to write her story. When she did, she wrote that she does “dirty things”. This itself should have alerted the judge, but in her anxiety to grant bail to the accused, all she did was to rely upon those writings to justify her decision. The marginalised existence turns the child into a suspect in the eyes of the court.

The reporting of the crime itself, which went on for two years according to the victim’s complaint, was traumatic for the girl. Her adoptive mother was aware of her suffering, but did not pay heed to her pleas for help. When the abuse, which started with inappropriate touching, escalated into penetrative sex, the child, in desperation, called the helpline of the social work organisation Childline Foundation in August 2015. Initially, she was hesitant to reveal the entire story and stated that her father had been molesting her. Later, during counselling, she opened up about the acts of penetrative sex. Does the trauma she suffered make her a liar and the accused an innocent who has been framed, especially when the abuse has taken place within a fiduciary relationship?

The judge seems to have awarded a child of such tender age the agency to determine what is dirty and then indulge in acts that are vulgar, obscene or immoral, which are socially constructed notions, all of her own volition. The only concern for the judge while granting bail in cases of child sexual abuse ought to be the safety of the child, which this judge ignored completely. At the stage of granting bail, the judge cannot go into the merits of the case.

Cause for concern

This case is a throwback to the Mathura case (Tukaram versus the State of Maharashtra, 1979), where judges had used lack of injury on the victim to acquit the accused, and the Suman Rani case (Prem Chand versus Haryana, 1989), where they had used the character and conduct of the victim to award less than the mandated minimum sentence to the accused. In both cases, the accused were policemen and the rapes took place in custody. The situation of the victim in the present case is even worse, an orphan child in the custody of the abuser.

The newspaper report turned out to be a blessing in disguise. Credit must be given to the police for moving the High Court to get the judge’s comments expunged. But this did not happen without bringing the matter to the notice of the highest police authority, through our victim support programme Rahat.

However, it is a matter of grave concern that the police continue to include documents in the chargesheet that are totally irrelevant to the facts of the case, leaving the door wide open for the defence lawyer to exploit this. How is the victim’s letter to the supervisor of the shelter home that gave her up for adoption relevant to the case of sexual abuse by the adoptive father several years later? And further, how did this document come into the hands of the investigating officers? The fact that it was included in the chargesheet gave the judge a handle to rely upon while granting bail to the accused.

It appears that every stakeholder who was supposed to protect this child let her down.

The author is a women’s rights lawyer and director of Majlis, which has a survivor support programme, Rahat.