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Jayna Kothari, a senior advocate in the Supreme Court of India, believes judges at all levels in India need to be regularly trained and sensitized.

Chandni Doulatramani/The Globe and Mail

When a 22-year-old woman in New Delhi accused national news anchor Varun Hiremath of rape and wrongful confinement this past February, she was hopeful her attacker would be brought to justice. But in India, it’s all too common for women to be blamed for sexual assault, leaving them feeling ashamed and disillusioned with a system that’s supposed to help them seek redress.

So it went in this case. After Mr. Hiremath – who fled after being charged – was granted interim protection from arrest by a judge, his alleged victim wrote a letter of complaint to the Chief Justice of India. In it, she claimed Mr. Hiremath’s counsel and the judge presiding over the case not only added to her trauma, but also shook her faith in the judiciary and made her regret pursuing justice through the courts.

“During the hearing, the counsel representing the accused, one Mr. Vijay Aggarwal, repeatedly made false, gravely humiliating and disparaging remarks against me and assassinated my character throughout the course of the hearing by slut-shaming me,” she wrote. “All this happened in the presence of the Judge, Sh. Sanjay Khanagwal, who to my shock, instead of reprimanding Mr. Aggarwal and restraining him from doing so, laughed with him, on multiple instances.”

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Indian women activists shout slogans during a protest against a court inquiry that cleared India's chief justice of sexual harassment allegations made by a former employee at his official residence, in New Delhi, India, May 10, 2019.

Manish Swarup/The Associated Press

A week after the victim wrote her letter, the Supreme Court of India issued unprecedented guidelines on how judges at all levels should handle sexual assault cases. They advise judges not to offer or mandate compromises between the victim and accused (such as suggesting marriage between the two parties) and to avoid using words that undermine or shake the victim’s confidence in the judicial process.

While the guidelines mark the start of a long-overdue legal and cultural shift in the midst of India’s #MeToo movement, getting judges to adhere to them poses a challenge.

Recently retired Chief Justice Sharad Arvind Bobde came under fire in March when he reportedly asked a rapist to marry his victim, who was a minor at the time of the assault. Those remarks sparked calls for the judge to apologize and retract his comments. An open letter signed by more than 5,000 women – including human rights activists and lawyers – demanded his resignation for justifying marital rape in India’s highest court. Since marital rape is not a punishable offence in India, marriage is often arranged between an attacker and the victim to head off a legal complaint. It’s also seen as a way to help save the “honour” of the victim’s family.

Justice Bobde also caused controversy when he led an inquiry panel into sexual assault allegations against his predecessor in 2019. That probe cleared Justice Ranjan Gogoi of sexual harassment on the basis that there was “no substance” to the claims, which were lodged by a former Supreme Court employee.

Ranjan Gogoi, a Supreme Court judge, addresses the media at a news conference in New Delhi on Jan. 12, 2018.

STRINGER/Reuters

The incident “was quietly buried,” Justice Madan B. Lokur, former Supreme Court judge, told The Globe and Mail, adding, “If those at the top – and I include top politicians – get away easily, it is not surprising that those lower in the hierarchy think it’s okay to make sexist remarks.”

There are plenty of examples of rulings that rely on rape myths, misunderstandings and patriarchal points of view. In the central Indian state of Madhya Pradesh, a High Court judge last year granted bail to a man accused of sexual harassment on the condition that he request his victim tie him a rakhi during Raksha Bandhan – a ceremony that would effectively turn her attacker into her brother and save him from further prosecution. The Hindu festival, which is usually celebrated between brothers and sisters, sees the sister tie a thread on her brother’s wrist as a symbol of his protection.

A High Court judge pinned the blame on the victim’s so-called “promiscuous attitude and voyeuristic mind” when suspending the sentences of three men accused of repeatedly raping her over the course of a year. Another judge said that if the victim does not return home after an assault in a “distressed, humiliated and devastated state,” that would be considered highly “unusual.” And in late May, a judge acquitted Tarun Tejpal, the former editor-in-chief of news magazine Tehelka, of sexual assault, saying the accuser “did not demonstrate any kind of normative behaviour” in the wake of the incident.

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These decrees aren’t limited to male judges. One female judge sitting in the High Court of Bombay recently ruled that groping a minor’s breast without “skin-to-skin” contact could not be labelled as sexual assault.

Indian social activists hold placards as they take part in a protest rally against Mr. Gogoi, demanding the reopening of a sexual harassment case against him, in New Delhi on May 9, 2019.

SAJJAD HUSSAIN/AFP/Getty Images

“This behaviour is prevalent in Indian courts because judges do not face any kind of disciplinary action or chastisement, and they get away with these remarks,” says activist Kavita Krishnan, who signed the letter demanding Justice Bobde’s resignation.

Critics of the new Supreme Court guidelines are already questioning whether they will have any impact on the way judges in India handle cases of rape and sexual assault.

“At the end of the day, Supreme Court guidelines mean nothing if there is no change in perceptions or a change in the mindset,” says Justice Lokur .

Jayna Kothari, a senior advocate in the Supreme Court, however, believes the guidelines will ensure that presiding judges don’t make inappropriate comments during trial or while passing verdicts. But she stresses they need to be trained on how to be sensitive to the perspective of survivors when handling sexual assault cases.

“Training needs to happen at multiple stages, and just one training initially is not enough,” says Ms. Kothari. “Whether they are district judges or high court judges, they need training and sensitization programs regularly.”

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Preferably this training would be delivered by civil society groups. “In state-run judicial academies, judges train other judges,” she says. “That is not enough.”

Indian social activists uses their mobile light as they take part in a solidarity rally in front of India Gate monument for the Unnao rape victim in New Delhi on July 29, 2019.

AFP Contributor#AFP/AFP/Getty Images

Justice Lokur believes all professionals working in the criminal justice system need similar help. “Judicial academies must chip in and make special efforts to sensitize lawyers and judges as part of continuing legal education,” he says.

Ms. Krishnan goes one step further: She believes all judges should be regularly examined and participate in mock trials to assess their performance, and recommends an independent or peer-reviewed body be established for this purpose. “If a judge gets promoted, his entire history of verdicts, patterns and quality of judgments needs to be assessed, and a decision needs to be made based on that,” she says.

Just as important is the notion of sparking a national conversation around the judicial process, adds Ms. Krishnan. Judges’ rulings carry weight, she says, and it’s important to not let their preconceived and prejudiced notions about sexual assault victims get in the way of their verdicts. “A judge is not just some neighbourhood uncle,” she says. “They have a lot of power, so their opinions should be a huge issue.”

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