March 14, 2021

Neither Contempt nor Malice in the letter: Brinda Karat

ON March 5, 2021, Brinda Karat, Member Polit Bureau of the CPI(M) issued a response letter to the Bar Council of India. It may be mentioned here that Brinda Karat had written a letter to the chief justice of India regarding his remarks in open court in two cases pertaining to women. This letter was published in these columns in the previous issue. Later, the Bar Council of India adopted a resolution referring to the name of Brinda Karat and her letter written to the CJI.
In response to that, Brinda Karat wrote a letter, the contents of which are given below.

I have seen a press release dated March 4, of a resolution adopted by the Bar Council of India with some of the sentences blacked out.  I am responding to this resolution not because my name has been mentioned in the said resolution several times in the most derogatory terms, but because the issues raised in the resolution have wider implications for the struggle for justice. I will therefore not respond to the petty, personal allegations made against me in the resolution.  I believe an individual’s record of work for women’s rights and justice for the oppressed should speak for itself. In this context the role of the Bar Council, a statutory body requires examination.

1. The resolution mentions my letter to the Chief Justice regarding certain comments he made in the open court which were widely reported in the press. Nowhere does the resolution contradict the reports, in other words, there is no dispute that such comments were indeed made. Whether or not the comments form part of the judgement is immaterial. The fact that such comments were made and reported have their own impact on society at large. The resolution asks a rhetorical question : “Comments  made by the judges not resulting in their orders have no legal sanctity, why then raise a hue and cry on such comments?” Comments made by higher authorities such as those made in the present case asking a rape accused whether he would marry his victim have a most damaging impact on victims of crimes and in this case, tend to dilute the enormity of a crime against a minor.  Comments may not have legal sanctity but certainly provide legitimacy to retrograde social approaches, which I have mentioned in my letter. In fact, the Bar Council, if indeed it wanted to react, should have upheld the best judicial practices and standards and taken up the negative impact of such comments, with the court concerned.

2. The Bar Council resolution speaks of a “written agreement” between the parents of the rapist and the minor girl. Is there anything legal about such an agreement? Under which law?  Is the Bar Council not aware that the girl tried to commit suicide? Is the Bar Council not aware that the girl refused the marriage offer? And also, most importantly, if such an agreement was made on behalf of the girl when she was a minor, once she became an adult is it not the bounden duty of the court to ask her opinion first, before asking the rapist if he would marry her? It is indeed distressing that the Bar Council resolution does not at all show any sensitivity whatsoever to the minor victim. It requires examination why a council of such senior lawyers should not see the necessity of judicial processes, more so in cases of rape of a minor, to put the interests of the victim, not the perpetrator, at the centre of the process for justice.

3. The Aurangabad High Court rejected the bail granted by the lower court. He would have been arrested but for his appeal. However, the Supreme Court has given him protection for a month to apply for “regular bail”. The Bar Council resolution says this “should be appreciated.” I strongly believe giving time of one month constitutes protection against immediate arrest. The council does not have the right to damn an opinion on this as being “motivated.”

4. In the second case referred to in my letter, the Bar Council resolution has made defamatory comments against the petitioner in her appeal to the Supreme Court. You have attacked her reputation. I think this is objectionable. The issue here is not the merits of a specific case. The issue is the comments made by the court which were of a general nature,  regarding the relations between a husband and wife or those in a live-in relationship. Here again, it is not disputed by the council that the comments made were “however brutal the husband is... etc.” In other words, it is a general comment about husbands, which has the gravest implications for cases of domestic violence including marital rape. Rape is a coercive act of sexual intercourse without the woman’s consent. It is true that there is no law against marital rape at present in India. The petition is pending before the courts. However, for the apex court to make comments such as “however brutal the husband is” gives license to brutality.

The Bar Council has described my letter to the CJI and its reporting in the media as “acts of gross contempt.” The resolution also states that “immediate measures must be taken to stop this practice of malicious attack...” There is neither contempt nor malice in my letter and it’s reporting in the media. On the contrary, some of the words in the council’s resolution may be taken as intimidation. I doubt very much if such intimidation and threats against an individual/s are within the mandate of the Bar Council.

I reiterate the contents of my letter.

Desist from Issuing Intimidatory Statements: Women Organisations

ELEVEN women organisations comprising, AIAMS(All India Aragami Mahila Samiti), AIAMSS(All India Agragami Mahila Sanskritik Sangathan), AIDMAM(All India Dalit Mahila Adhikar Manch), AIDWA(All India Democratic Women’s Association), AIPWA(All India Progressive Women’s Association), CSW(Centre For Struggling Women), MWF(Muslim Women’s Forum), NFIW(National Federation Of Indian Women), PMS(Pragatisheel Mahila Sangathan), SAHELI and SMS(Swastik Mahila Samiti), issued a public statement on  March 6 against the resolution of the Bar Council of  India.

The statement said that they are shocked to see the press release issued by the Bar Council of India, dated March 4, 2021. The Bar Council had stated that “a handful of politicians and some so-called social activists” are feeling elevated by criticising and making reckless comments. The women organisations said that the Bar Council has accused thousands of women who have critiqued the CJI’s remarks as motivated people casting aspersions against the judges. They have termed the resolution as intimidating and threatening- “immediate measures will have to be taken to stop this practice of malicious attack”, read the Bar Council resolution.

The women organisations said: “Please note that the law of this country gives us the right to criticise the comments made by even the highest authorities when these comments are against gender justice for women. It is totally wrong to call our comments motivated or to say that these are malicious attacks through media. The independence of the judiciary is, in fact, strengthened by taking into consideration comments by women who have been fighting for gender justice and pointing out how sexual violence affects women and traumatizes them. To take the women’s perspective within its fold will strengthen the institution of justice.”

They said that the naming of Brinda Karat and some other individual is totally uncalled for. “We have also stated earlier that we do not agree with the Supreme Court giving four weeks’ protection to the accused in such matter.”

“…………women’s organizations have been struggling for decades to get recognition for sexual assault within marriage and live-in relationships and a case is pending before the Hon’ble Court to recognise marital rape as rape. Brutality within intimate relationships is unacceptable. You(Bar Council) have also falsely alleged that laws meant to protect women are being misused flagrantly.”
The women organisations asked the Bar Council to desist from issuing these intimidatory and threatening public statements against those who are fighting for gender equality and justice and showing sensitivity towards women’s issues.