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Lazy Analysis: The ignorance of crucial perspectives in judicial decision making

Criminal Law must just be based on a few principles which I have to memorize and apply so in order to derive the answer. - My thoughts when I first started studying the Indian Penal Code. However, I soon realized that there is much more to criminal law than the bare application of the law. It is one of the only branches of law which is deeply entwined and has a direct and lasting impact on the ground reality.

One of the first concepts which had caught my attention during the course was the perspective of Lazy Analysis. It was first deeply discussed in the case ofB. D. Khunte v Union of India, where the court had dismissed the accused’s plea for Grave and Sudden Provocation for shooting his senior who had sodomized him earlier in the day. The appeal was dismissed on the grounds that a sufficient amount of time had passed for a reasonable man to cool down and the although the provocation was grave, it was not sudden. In this case there was an application of the reasonable man test, as per which a reasonable who is provoked would be calmed down after a few hours after which the anger felt by the accused would only constitute to ‘motive’.

The judgement constitutes of a lazy analysis of this case, for through the facts of the case, the Accused had no intention to kill the decreased in the manner as it had taken place. He had only done so, when he had seen the decreased approaching him, seething in anger at the knowledge that no action would be taken against the decreased for his misdemeanor.

Furthermore, in the reasonable man test, the perspective of constructive provocation is not looked upon, in addition to the psychological fact that it does take sometime for the situation to sink into many reasonable men before they could act upon it.

We had discussed this perspective in class in the cases of homicide, but during the progress of the course, I realized that this perspective could be extended to sexual offenses as well. In this paper, I will try to elaborate on the perspective of a ‘lazy analysis’ through which had failed to serve a just reading of the law. I contend that the victim blaming attitude in the reading of such cases is because of a fallacious reading of the law rather than the societal prejudice of the jurists.

The first case which we think would be the famous Tukaram v State of Maharashtra (Mathura Rape Case), which had brought out a massive protest for legal reforms in the rape laws in India. There were many protests regarding the court’s reading of “Passive Submission” in this case and the ‘Victim blaming’ attitude hinted in the judgement, especially by Prof. Upendra Baxi.

In this case, looking at the fallacious interpretation of the law rather than looking at the highly hinted prejudice might be harder.

While overruling the High Court’s holding that there was passive submission, their Lordships, fail to mention what is ‘Passive Submission’. For, in the given facts of the case, there is without doubt submission by Mathura. Although the court had cited the case ofHarnarain Rao v The State, they do not seem to apply its holding which held that non-resistance and passive giving in does not amount to consent and consent requires a voluntary participation on the women’s part. The court in this case furthermore went on to say that although consent involves submission, the converse does not follow. Their lordships believed that it was preposterous to suggest that she did not resist due to her circumstances.

This is no doubt an indication of a fallacious application of the precedent. Furthermore, the court seemingly ignores the principle of ‘proving beyond reasonable doubt’ in this case, most of the facts, like the nightly discharges of Ganpat; Tukaram’s intoxicated state and the reasoning for the semen traces found in mathura’s clothes and why mathura was brought to the police station after sunset were brushed away in consideration of the assumption.

The Mathura case also saw large protests for the inclusion of rape laws in the LLB syllabus so as to facilitate the understanding of such sensitive issues. However, even after three decades, this goal of a sensitive understanding seems to have not been achieved.

For, such a lazy analysis of the cases seem to exist predominantly in the minds of the present day law students as well.

During my Internship, I had engaged in a random conversation with my colleagues on dress- code, some of them had argued that consent is presumed when one has a (so called) provocative ‘western’ lifestyle. Their main arguments were that the girls should be more alert and must take utmost care of herself and must not engage in immodest activities (i.e. dress up in short clothes and have love interests). Furthermore one of them had gone on to say that, she gets provoked when such she hears such people bragging to be feminist (They seemed to have a fallacious understanding of feminism and consent). However, when the conversation moved to the Mathura case, everyone sided with Prof. Baxi’s opinion. I am still unable understand the reason for this sudden shift in ideology. I think it is because of the stereotypical victim that we hope to see in the cases of sexual offenses - A helpless women fighting for justice, the image of Mathura portrayed by Prof. Baxi in his open letter.

The ‘lazy analysis’ perspective could also be applied in the High court bail of Hardik v State of Haryana. Although it is the mere opinion of the judges and it does not have any legal value, the opinion of the judges validates my contention of lazy analysis.

In their opinion, the judges talk of youthful misadventures and the immature but nefarious world of youngsters. The acceptance of the complainant, to comply with the wishes of the accused and the implication of a casual sex relationship due to the same.

In this Opinion, the concept of passive submission has not been applied. Although there might not be power dynamics like those in the Mathura case and the Rao Harnarain Singh case, there is no doubt the accused had levied power on the victim coercing her to submit. Another important factor which was ignored in the opinion was the constructive victimization by the accused and the continuous passive submission by the complainant.

Furthermore, the fact the victim was manipulated into sending her pictures which were later used to blackmail her into submission is merely taken for granted due to their voyeuristic adventures. Despite everything, the opinion strongly reflects the disapproval of the complainant’s lifestyle and goes as far as to categorize the entire ordeal as a tragic misadventure ignoring the fact that as per the Section 146 of the Indian Evidence Act, they are not supposed to look or judge the past (so called immoral) history of the victim.

At this point, I have come to believe that the facts of the case and the opinions generated are a mere result of the narrative. However, an active analysis of the cases and the accurate understanding of principles around them might help in serving a fair judgement.

References
1. Tukaram and Anr v State of Maharastra. 1979 AIR 185. Supreme Court of India. 1979. Print.
2. Baxi, Upendra, et al. "An Open Letter to the Chief Justice of India. "Supreme Court Cases4 (1979): 17-22.
3. B.D. Khunte v Union of India. 2015 1 SCC 286. Supreme Court of India.2015. Print.
4. Cr.M.No.23962 of 2017 in Criminal Appeal No. S-2396- SB of 2017

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