In a country where we are developing and enlarging the scope of fundamental rights with each passing phase, we are having to see marriage as a solution to rapes. It is a bizzare view that the Apex Court which passes the Hadiya judgement declaring �Right to choose a life partner� as a fundamental right is the same Court which passes a judgment saying a rape accused can be granted bail if he promises to marry the victim. Sadly, this is broadening the scope of patriarchy and encouraging criminals because in either of the situations, the victim has no say.

When we talk about Judicial Discretion, we refer to the discretion of the judges whereby the Courts take a step beyond the written law to provide justice to the aggrieved party. However, such demeaning patriarchal judgments seem to be moving in the direction of Judicial Over-reach because they do not even consider the plight and despair of the aggrieved party. In the year 2011, a man accused of raping a woman for nearly three years was granted temporary bail by the Bombay high court so that he could marry his victim.[1]

Instead of diving into the true interpretation of the remarks made by the Chief Justice of India, it is pertinent to focus on the difference between judicial activism and judicial overreach of which this situation can be considered as an example. The making of such an appalling and disheartening remark by the Apex Court is a clear case of crossing the boundaries of judicial activism because it clearly disregards the penal provisions meant to punish a rape accused.

Judicial activism is where the judiciary decides in the favour of justice in the absence of a legal provision. In this case, there is an existing legal provision which seems to have been wantonly disregarded by the Court in favour of an archaic and barbaric view. This kind of response depicted by the Chief Justice is also a violation of fundamental right to life with dignity of the rape victim as it takes away her right to choose her life partner and instead punishes her for life by making her spend her life with a person who abused her in the first place.

Apart from violating the fundamental rights of the victim, it also tends to legitimize the grave issue of marital rape by justifying marriage as a remedy to rape. It not only demeans the sanctity of marriage which is supposed to be a sacrament, but also forces the victim to a lifetime of torment wrongful confinement where she is bound to live with her abuser in the constant fear of being raped again. Marriage may bring a social recognition and acceptance to the victim within a society of limited diameter but, that does not act as a compensation to what she has suffered and to the violation of her fundamental right to live with dignity.

Hence, such a remark made by the Apex Court brings out a clear example of judicial overreach where the judiciary has stepped beyond the circumscribed limits of justice. It also illustrates the gross insensitivity and the complete absence of any compassionate and humane approach towards the survivor of a sexual assault. Judicial Overreach refers to an extreme form of judicial activism where arbitrary, unreasonable and frequent interventions are made by judiciary into the legislature's domain, often with the intention of disrupting the balance of powers between executive, legislature and judiciary

Judicial activism is construed to be a reverse of judicial restraint in order to transform the society through judicial decisions. The mixed Civil as well as Common Law system in India enable the free activity of the judiciary in framing new laws or improvising the previous laws. According to Article 141 of the Indian constitution, the law declared by the Supreme Court is binding on all the courts within the territory of India and indirectly binds the citizens.

However, some recent judgments seem to have crossed the line to arrive at judicial overreach. The same judiciary which brings out death sentences in a Nirbhaya case and amends the POCSO Act to protect women and children, also shows a negative transition in bringing out ideas of marriage between the rape accused and the victim. The nation still lacks a legal provision penalizing marital rape and now getting the rapists married may make it even more difficult to penalize people for marital rapes.

Judicial activism of the Supreme Court took place in case of the Visakha judgment where the absence of policy of sexual harassment at workplace was filled in by the judiciary. On July 15, 2020, it was reported in The Print that[2]:

A Civil Court in Araria district of Bihar had sent a gang rape survivor to jail on grounds of disrupting court proceedings. Her only crime was having an emotional outburst and a nervous breakdown that emanated from the Court�s request to repeat her trauma over and over again. What seems to be a natural reaction for any rape survivor was misconstrued as contempt of court.

The utter dismay of the democracy lies in the fact that even after the 2005 Criminal Law Amendment Act and judgments like Nirbhaya, Visakha and Mathura, today�s judiciary still considers the female or the rape victim to be an inferior being. The fact that it makes statements suggesting marriage to the rape accused, is a clear indication that the judiciary is still of the thought that marriage is an end goal for a female and that is the only way by which the victim can seek protection from the society.
 
End-Notes:

1. https://www.hindustantimes.com/mumbai/man-accused-of-rape-gets-bail-to-marry-victim/story-41ugEYcStxcowaTroeDMkN.html
2. https://theprint.in/india/bihar-court-sends-gang-rape-survivor-to-jail-for-contempt-while-recording-statement/461368/

Written By:

1. Dr Farrukh Khan is an Advocate and Managing Partner of Law Firm- Diwan Advocates.
2. Somya Mishra working with Diwan Advocates &
3. Abhigyan Choudhary working with Diwan Advocates.