Manasvi Singh week 13

(1979) 4 SCC (Jour) 17 An Open Letter to the Chief Justice of India

According to National Crime Records Bureau (NRCB), an average of 91 rapes are recorded every day. This number is and should be unavoidable. The Law exists because society exists, if the societal conditions are not considered, then the argument becomes false. In the case of Tukaram V State of Maharashtra (1979), the circumstances were ignored and therefore the court could not do Justice and hence the Open Letter. Circumstances included what the HC mentioned 1) Mathura being a part of an FIR 2) She was called at dead night 3) The accused were POLICE OFFICERS 4) Traces of semen 5) One 14 -16 year old girl against 2 well-built men (as their position requires well-built physique). My question here is, do circumstances not put people in different positions against each other? The Bench held against the victim as her resistance and injuries were not enough. The answer to this was in the circumstances but again those were not enough. The question again is what is an ideal way of resistance? Is resistance a way of mind or action? I highly find this argument circumstantial- Someone’s advantage can be another’s disadvantage, and therefore Mathura (Supra) was at a disadvantage in 5 different ways. If Section 375 is entirely argued based on ignorance of what is passive submission, therefore court is at fault. There have been many instances in the past and today where the courts have in fact relied on the meaning and intent behind the law and not on ‘Law is what it is’. For me, it becomes more a matter of convenience and morality when the law is interpreted this way. The argument in favor of Mathura (human rights) are well explained in the Open Letter that I completely agree with. But the Judicial hypocrisy is another hidden argument that I tried to point out. Passive submission is and was the key to the questions put forth in the court, Mathura had no choice other than submission before the two well- built men, in the executive, late at night, where she was a part of an FIR. Therefore, it is not wrong to say that there was passive submission if traces of semen were found. Another aspect where the courts exceed their limits is where they create stories to show a woman’s incompetence at court while digging out the competence of the male ‘officers’. Therefore, if there is a biased mind towards siding with one gender for its competence then I see justice a long way to go.