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Lead/ Swami Chinmayanand’s Bail Order

Power Play
Court acknowledged the “word of cau- single word to her own parent or before
tion” provided by the Supreme Court in the Court regarding the alleged incident,
its recent judgment, Shri P. Chidam- is an astonishing conduct which speaks
baram v. Central Bureau of Investiga- volumes about the ingeniousness of the
tion, where disapproval was expressed prosecution story.” The Court assumed
about the practice of giving any finding that the girl was a willing party because

An Allahabad High Court judgment which released the powerful politician accused of rape has
on the merits while deciding bail appli- she did not speak up, completely ignor-
cations. This, however, has not been ing the possibility of mental or psycho-

brought into question the rules to be considered while deciding bail applications
applied in this case because the order logical trauma that she may have under-

By Srishti Ojha
focuses mainly on the merits of the gone when the accused was in a position
case, placing doubt on the victim of power. This was acknowledged by the
and her story. Court in the bail order. It’s true that not
The Court acknowledged the judg- every rape allegation is true and not
ment of the apex court in State of UP every accused in such cases is guilty.
through CBI vs Amarmani Tripathi While looking at a case, the courts need
(2005), laying down factors to be con- DEBATABLE ORDER to form a balance between the concerns
Justice Rahul Chaturvedi (above), made so-
me unusual statements while granting bail to
sidered in a bail application such as of the survivors, demands of society,
Swami Chinmayanand in Allahabad HC
“character, behaviour, means, position rights of the accused, and reformatory
and standing of the accused” but failed and rehabilitative justice.
to apply it in the current order. The Co- Orders based on stereotypes and
urt not only ignored the superior posi- order granting bail to three law students assumptions take away the hard-won
tion held by the accused, but analysed from Jindal Global Law School who victories of women’s rights and legal
the character of the complainant. were accused of rape. This order was equality and harm rape survivors. In a
heavily criticised not just for granting society where patriarchy is deep-rooted,

T
he Court was also supposed to bail to those with serious rape allega- and rape and sexual harassment stigma-
consider the likelihood or reason- tions against them, but because it was tised, even talking about them is taboo.
able apprehension of evidence peppered with statements seen as some Until 2003, Section 155(4) of the
being tampered with. Even after ac- of the worst examples of victim sham- Indian Evidence Law allowed victim
knowledging that the accused was an ing. The victim was reprimanded for shaming in a way by letting the accused
important personality and in a position drinking, smoking and not confiding in go scot-free by proving that the victim

T
to tamper with the evidence, the Court her parents that she was being abused. was of immoral character. It states that
decided to release him on bail. People had taken to social media to if a man is prosecuted for rape or
In India, cases of rape, sexual harass- express their anger and dissatisfaction attempt to ravish, “it may be shown
ment and exploitation are common, and at this order and filed online petitions that the prosecuterix was of generally
have often taken uncommon and unex- condemning it. Some high courts have immoral character”. This could be used
pected turns. Besides the reluctance of also assumed that the absence of in- to infer that her testimony was false.
the police to register such cases, society juries on the body of the survivors This was deleted on the recommenda-
is judgemental about the victim and implies consent and is a ground to tion of the Law Commission which said
often shames her. The current bail order release the accused. it was detrimental to a survivor’s reputa-
HE Allahabad High Court result of conspiracy hatched with greed is yet another example of what a rape or In the current bail order, the Court tion and self-respect.
recently granted bail to fo- for extracting more. sexual harassment case can turn into. relied on a common rape myth—of the Even though sensitivity in dealing
rmer Union minister and The order grabbed eyeballs not only The same day that the bail order was survivor not speaking up or complaining with allegations of rape and sexual
BJP leader Swami Chin- because the person accused was power- passed, a 16-year-old rape survivor suf- when she was sexually exploited. They assault has often been demanded, it is
mayanand who was accus- ful but due to the unusual nature of the fered an acid attack, allegedly by the also called the relationship a matter of not being adhered to. In the current
ed of sexually exploiting a bail order, especially in a case of serious family members of the accused in Uttar complete quid pro quo and said: “A girl, order, the accused was not charged with
23-year-old LLM student of SS Law allegations of rape and sexual exploita- Pradesh’s Hapur after she refused to whose virginity is at stake, not uttering a rape even after the survivor stated that
QUID PRO QUO
The Court relied on a common rape
College, Shahjahanpur, where he was a tion. In a country where so many accus- withdraw her rape complaint against she had been raped numerous times.
While granting bail to
myth—of the victim not speaking up
director. The order by Justice Rahul ed spend decades in prison for minor the accused. The order has not only ignored the rules
Chinmayanand, the Chaturvedi came after dismissal of his misdemeanour, granting bail to a person In August last year, a JNU student to be considered while deciding bail
when sexually exploited. It completely
court not only said that
“both had used each
bail application by the district and ses- accused of a serious offence is bound to had accused the police of refusing to applications, but stuck to stereotypes
other” but also called
ignored the trauma she might have faced
sions judge of Shahjahanpur. Justice be criticised. register an FIR when she went to report and gender prejudices.
the case a conspiracy
due to accused’s position of power.
Chaturvedi in his order said “both had The nature of the bail order can be rape and seek help. In 2017, the Punjab A gender-equal and progressive soci-
to extract more used each other” and the case was the questioned on various grounds. The and Haryana High Court passed an ety is still a long way off.

18 February 17, 2020 | INDIA LEGAL | February 17, 2020 19

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