The recent remarks made in an anticipatory bail order passed by Justice Krishna Shripad Dixit of the Karnataka High Court have sparked a furore, with the legal fraternity and civil society alike expressing shock at the judge's observations.

Justice Dixit's comments that it was "unbecoming of an Indian woman" for a victim alleging rape to have fallen asleep after the act were termed as unacceptable and "misogyny at its worst".

The profile of Justice Dixit on the Karnataka High Court’s website simply says:

“Born on 20^th July 1964. Appointed as Additional Judge of the High Court of Karnataka and took oath on 14.02.2018 and Permanent Judge on 07.01.2020.”

Using this as a starting point, Bar & Bench decided to delve into the background of the judge and the how his peers in legal circles in Karnataka have reacted to the controversy.

In this edition of Debriefed, we also take a look at previous instances where judges have made similar remarks, Justice Dixit's previous role as Additional Solicitor General in the Karnataka High Court, and his other rulings as a judge of the Karnataka High Court, irrespective of whether the impugned remarks get eventually expunged.

But first, the controversy itself.

What is the controversy?

In Rakesh B. v State of Karnataka, decided on June 22, the question before Justice Dixit was whether the accused in an alleged rape case deserved to be granted anticipatory bail. Although the question did not require the judge to go into the merits of the case, he stated:

“…the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished.”

Besides, the judge found that her failure to explain why she did not alert the police or the public about the conduct of the accused when he got into her car, her letter seeking compromise with the accused as a condition for withdrawal of complaint, and her silence on why she did not approach the court at the earliest point of time when the accused was forcing her for sexual favours, curious.

In the order, the judge also asked why she went to her office at 11:00 PM and why she did not object to consuming drinks with the accused and allowed him to stay with her till the next morning.

These remarks were obviously unnecessary for consideration of the anticipatory bail to the accused, and invited stringent criticism from various quarters. The remarks tend to create doubts about the allegation of rape by the complainant, and suggest that her relationship with the accused could have been consensual. In a sense, the remarks injure her character, without giving her an opportunity to defend herself.

What does the JS Verma Committee Report on Amendments To Criminal Law (2013) say on the subject of stereotypes to be avoided during rape trials?

The report recommended the insertion of Section 53A in the Indian Evidence Act, as suggested by the 42nd Law Commission. Section 53, as it now stands, simply says that in criminal cases, previous good character is a relevant factor; in criminal proceedings, the fact that the person accused is of a good character, is relevant. The proposed Section 53A, according to the Verma Committee, should state as follows:

“In a prosecution for rape or attempt to commit rape where the question of consent for sexual intercourse or attempt to sexual intercourse is at issue, evidence of the character of the prosecutrix or a previous sexual experience with any person other than the accused shall not be on the issue of such consent or the quality of consent.”

Parliament has so far not enacted this amendment.

Also, the Report specifically seeks to deconstruct the woman’s inherent disability to report crimes of sexual offences against them. The report relies on the Supreme Court’s judgment in Shri Bodhisattwa Gautam v. Shubra Chakraborty to suggest that a large number of women still fail to report rapes to the police because they fear embarrassing and insensitive treatment by doctors, law enforcement personnel and cross-examining defence attorneys.

The remarks made by Justice Dixit may tend to misinterpret the delay in reporting the crime to the police in favour of the accused. The report is clear that the fundamental attitude, based on paternalism, must be discarded. Justice Shripad’s remarks envisage that an Indian woman, if ravished, would not behave like a normal human being, but exhibit a sense of shame or stigma. The Verma Committee report is categorical that we must snap the link between shame and honour, and the crime itself. The report exhorts civil society to support all such cases where people who are filing complaints genuinely are given massive support to bring perpetrators to book.

In considering “Indian women” as different from any other women, Justice Dixit has unwittingly subscribed to the honour-shame theory, against which the Verma committee report has argued.

More importantly, the Verma Committee Report wanted the woman complainant of rape to be viewed as a whole and not as a physical centre of sexual congress. It states,

“At the same time, it must not be viewed that a woman, while making a complaint, is in any way acting less honourably or in any way disturbing what is considered as the repository of honour of the family, community and others.”

Other judges have made similar controversial statements inviting public rebuke in the past

In a matrimonial dispute, Karnataka High Court Judge K Bhakthavatsala once told a woman lawyer that she should take up such cases only after getting married. He observed in Court,

“Family matters should be argued only by married people, not spinsters. You should only watch. Bachelors and spinsters watching family court proceedings will start thinking if there is any need to marry at all. Marriage is not like a public transport system. You better get married and you will get very good experience to argue such cases.”

He also reportedly told a survivor of physical abuse that "women suffer in all marriages". He reportedly asked a victim,

“Your husband is doing good business, he will take care of you. Why are you still talking about his beatings?”

Any such recent instance from the Supreme Court?

In Raja & Ors v. State of Karnataka, decided on October 4, 2016, Justice Amitava Roy made similar comments while disregarding the testimony of a gang rape survivor. Acquitting the accused, Justice Roy wrote in his judgment:

“Her (victim's) conduct during the alleged ordeal is also unlike a victim of forcible rape and betrays somewhat submissive disposition. From the nature of the exchanges between her and the accused persons as narrated by her, the same are not at all consistent with those of an unwilling, terrified and anguished victim of forcible intercourse, if judged by the normal human conduct. Her post-incident conduct and movements are also noticeably unusual. Instead of hurrying back home in a distressed, humiliated and a devastated state, she stayed back in an around the place of occurrence, enquired about the same from persons whom she claims to have met in the late hours of night, returned to the spot to identify the garage and even look at the broken glass bangles, discarded litter etc…

...Her confident movements alone past midnight, in that state are also out of the ordinary… The medical opinion that she was accustomed to sexual intercourse when admittedly she was living separately from her husband for one and a half years before the incident also has its own implication”.

Despite protests, the Supreme Court did not reconsider it.

Justice Dixit Krishna Shripad enjoys a good reputation within the Karnataka High Court. What has been the Bar's response to this controversy?

Most people in the Bar are surprised that he made the controversial statements in the bail order. He is not known as a progressive judge, but he is known to be extremely well-read in the law. He has great love for Constitutional Law and reads up all cases.

“It is not uncommon for many judges to make such comments concerning gender or religion, giving vent to their inherent prejudices. But they may not put it in their orders or judgments. In his case, it came out in the media because it is in his order”, said a Senior Advocate at the Karnataka High Court. According to her, most judges suggest that if the victim was in a relationship, it meant that she had given consent.

Many lawyers who know Justice Dixit personally are of the view that he should not have made the comments, and they have indicated it to him. One of the lawyers practising in the High Court said he should voluntarily expunge his remarks, without waiting for Chief Justice of India SA Bobde to intervene, as sought by Advocate Aparna Bhat.

Such remarks, the lawyers are clear, are obscurantist, and will alienate women litigants from seeking justice. As one lawyer put it:

“High court Judges need exposure to gender sensitisation. But their general response is they don’t need any training. If Justice Dixit expunges his remarks himself, that will make a positive response to women’s rights."

The remarks, it appears, will get expunged sooner rather than later.

What are some of the important cases argued by Justice Dixit when he was ASG?

As Additional Solicitor General for the Centre, Dixit argued vehemently for the rule requiring the tobacco products to carry pictorial warnings covering 85 per cent of the packaging space. The Karnataka High Court, however, struck down the amendment to the Cigarettes and other Tobacco Products (Packaging and Labelling Rules), 2008 as amended by the amending Rules of 2014, which mandated the 85 per cent rule.

The Supreme Court, which has stayed the High Court’s order, is yet to dispose of the appeals. Whatever the denouement in the case, Dixit’s arguments in favour of the amended rule before the High Court from the health point of view were lauded.

Dixit’s role as the ASG was also evident in the outcome of the case, Christian Chidieere Chukwu v. State of Karnataka on February 18, 2016. In this case, the High Court held that overstay of a foreign national in India amounts to illegal stay till he or she is deported. Further, if the foreign national is released and trial takes a lot of time, on the basis of the order of bail, he/she will be allowed to stay in India till the conclusion of the trial and this would be contrary to the provisions of Section 14 of the Foreigners Act, 1946.

The High Court found force in Dixit’s argument that if bail is granted in this case, it is as good as legalizing the illegal stay of the foreign national who has violated the stringent provisions of the Foreigners Act. Section 14 of the Foreigners Act does not expressly deny bail to those contravening it.

As a judge, what other noteworthy orders has he passed?

His order granting anticipatory bail to the accused in Appoji Reddy and others v. State of Karnataka on June 10 is controversial, although it did not make headlines. The accused in this case were alleged to have committed offences under Section 3(1)(r) & (s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

Section 3(1)(r) refers to intentionally insulting or intimidating with intent to humiliate a member of the Scheduled Caste or Scheduled Tribe communities in any place within public view. Section 3(1)(s) makes abusing any member of a SC or a ST by caste name in any place within public view.

Justice Dixit held that the expression in the above clauses namely “in any place within public view” presupposes the presence of a person other than the accused persons who are alleged to have committed the predicated offence with common intention. Reading the charging provisions otherwise would strain their text and context, he held.

The FIR alleged that the petitioners threatened the complainant against visiting their village. Justice Dixit then held that there is no material to presume that petitioners knew of the social status of the complainant, which is a sine qua non for invoking the charging provision of Atrocities Act. It was thus held that the right to advance bail otherwise available to a person under Section 438 of the Code of Criminal Procedure cannot be defeated by merely and mechanically invoking Section 18 and 18A of the Atrocities Act.

As in Rakesh B, in this case too, Justice Dixit appears to have prejudiced the trial by commenting about the merits of the allegations in the FIR while granting anticipatory bail.