There is no doubt that a living law has to be adaptive and flexible so as to assimilate new thinking and emerging trends. The interpretation of most of the currently applicable laws cannot be performed truthfully in the context of the original framework of its creation or mindset. This is particularly true of laws that govern social behaviour and constantly evolving technologies. So, the courage shown by the Chief Justice to break away from what would have been a perfect response from a person in his authority and stature deserves and applause because such an approach can help resolve many issues of contemporary politics and life in general.

But the in the present instance, the solution suggested only adds to trouble and creates more problems than it can solve. Hypothetically, if the accused man did consider the court’s offer and agreed to marry the victim, the most important question is whether the court would be responsible for what can happen to the legally-wedded wife of the man. The Chief Justice seems to have considered the implications of the man alleging coercion from the court to marry someone. But he has clearly failed to consider what would be his own contribution in ruining the marriage of the accused man’s wife, as the law of the land does not allow him to keep both in his family.

That would be tantamount to a selective approach, which is certainly not good in jurisprudence. In fact, this is what is agitating the minds of the liberal opinion. An open letter to the Chief Justice, endorsed by a number of women right activists and other thought leaders, sees a certain consistency in Chief Justice Bobde’s remarks on various occasions. It quotes at least two cases where the CJI has expressed what they consider as ‘scandalising’ remarks about women’s rights. The first one was about the CJI’s question as to why women farmers were being ‘kept’ in the farmers protests in Delhi and his advice for their being ‘sent back home’. The activists see a certain macho angle in the suggestion, the one that implies that women lack the autonomy and personhood that men do. The letter also refers to the CJI’s observation in another case to the effect that “If a couple is living together as man and wife, the husband may be a brutal man, but can you call the act of sexual intercourse between a lawfully wedded man and wife as rape.”

The letter, which calls for the resignation of Chief Justice Bobde for his ‘offer’ to the rape accused, is critical not just about the incumbent chief justice, but also the approach of the judiciary. It also refers to the instance of his predecessor Ranjan Gogoi sitting in judgement over an accusation of sexual harassment against himself, and a Supreme Court bench lobbing ‘false, defamatory attacks on the complainant and her family’.

The open letter says that CJI Bobde’s words‘ scandalise and lower the authority of the Court’ and points out that these amount to a message from the towering heights of the post of CJI to other courts, judges, police and all other law enforcing agencies that justice is not a constitutional right of women in India. “This will only lead to the further silencing of girls and women, a process that took decades to break. To the rapists, it sends the message that marriage is a licence to rape; and that by obtaining such a licence, the rapist can post facto decriminalise and legalise his act,” asserts the letter.

It is apparent that the controversy over Bobde’s remarks is unlikely to die down any time soon as there is a growing clamour for the resignation of the incumbent CJI. Social media is on fire over the remarks, with netizens describing Supreme Court as a patriarchal institution, which sees marriage as a ‘nullifier’ of rape and even talking about a ‘arranged-rape-marriages’ as the new matrimonial fashion fad. (IPA Service)