“As pointed out earlier, that both the parties crossed their limits and at this stage it is very difficult to adjudicate as to who exploited whom?? In fact, both of them used each other (sic).”
These are just two of the problematic lines from the Allahabad High Court’s order dated 3 February, granting bail to former Bharatiya Janata Party minister and self-styled godman Chinmayanand.
Unfortunately, there is a lot more to this order by Justice Rahul Chaturvedi, which not only runs the risk of pre-judging the case (despite some caveats by him) but also appears to endorse a number of regressive views concerning sexual abuse and how women who have been subjected to such abuse should conduct themselves.
For example, take the following statements, which are those recorded by the judge in the order, and not merely arguments by Chinmayanand’s legal team:
“What is mind boggling, disturbing and matter of concern is that a student of LL.M., i.e. Miss “A” comes into contact with the applicant, seeks and enjoys his ‘patronage’ and ‘benevolence’ as well as on her family members and in lieu of that she was said to be exploited physically by the applicant, keeps mum throughout the entire long period for almost 9-10 months. She never shared anything with anyone including her parents (sic).”
“The relationship between father and the daughter seems to be quite strange as they were having no direct contacts and were alien to each other and the father was taking stock of the situation of his daughter through her facebook account (sic).”
“A girl, whose virginity is at stake, not uttering a single word to her own parent or before the Court regarding the alleged incident, is an astonishing conduct which speak volumes about the ingeniousness of the prosecution story (sic).”
[Note: This line came after the judge reproduced some of the contentions of Chinmayanand’s lawyer, but is not specified to be an argument raised by the latter.]
All these statements find a way to cast doubt on the version of events put forward by the survivor in this case, and play into the decision of granting bail to Chinmayanand.
Now it is not wrong for a judge to grant bail if the prosecution case appears to be baseless (see the recent bail order for Chandrashekhar Azad, for instance), or if there is evidence that the complaint has been made in bad faith, and if it is clear that the accused is unlikely to tamper with evidence or witnesses.
At the end of the day, the Supreme Court has long held that bail is the rule, and remaining in jail the exception – unless the accused is likely to be a threat to the complainant or other witnesses and is likely to tamper with the evidence.
However, in this case what we see is a decision to grant bail based on a ‘conclusion’ that there was no sexual abuse, that the filing of the case was a result of ‘greed’ – a conclusion which is arrived at not on the basis of any solid evidence, but instead on a series of problematic assumptions and a skewed way of looking at the two key figures in this case.
Risk of Pre-Judging
Let’s begin with the ‘conclusion’ arrived at by the judge. In paragraph 31, it is written that:
“at this juncture, this Court draws its conclusion that it was a complete matter of quid pro quo but over a span of time the greed for extracting “more”, she along with her accomplices seems to have advanced for hatching a conspiracy against the applicant and tried to black mail him for ransom, through the obscenic video clips recorded by herself (sic).”
How did the judge arrive at this conclusion? As early as paragraph 13, based on Chinmayanand’s lawyer’s arguments about how there was an FIR against the girl for extortion, and some observations about how the girl didn’t tell anyone about being sexually exploited while it was going on, the judge notes that there may have been a quid pro quo between her and the accused.
By the time we reach paragraph 31, this is no longer a question in the judge’s mind, it’s something he seems certain of, on the basis that:
- Some of the girl’s relatives have also allegedly benefitted from the relationship between her and the accused (the girl’s mother was employed at an institution run by Chinmayanand’s ashram);
- There is nothing on record to show that during the time when the girl alleges she was sexually exploited by Chinmayanand, “she made any complaint or even any whisper to her family members against the accused applicant.”
This ignores all the evidence the girl submitted against Chinmayanand, and also fails to consider any of the reasoning provided by her for why she took her time to file the complaint or say anything to her family.
The possibility that she may have been able to extract certain favours from Chinmayanand in exchange for sex does not in any way condone his actions: Whether we look at it as rape under Section 376(2) of the Indian Penal Code or sexual exploitation by someone in a position of power under Section 376C (which is what the police included in the FIR, instead of a rape charge).
The court does not at any point note any reason to doubt that there was a sexual relationship between them, which immediately brings it within the bounds of at least Section 376C.
Again, one might ask why any of this should matter at this stage when it comes to granting bail. The reason it does is because the judge uses the finding in paragraph 31 as the crux of his decision to grant bail, and so if this finding is based on a flawed premise, then bail should not have been granted.
Moreover, the way the judge frames this as a ‘conclusion’ is a clear pre-judging of the case. It is ironic that he actually notes that the Supreme Court (in its P Chidambaram bail judgment) has warned against pre-judging the merits of a case at the stage of bail, and yet goes on to use language in the order which does just that.
“Contrary to all jurisprudence on bail, the order also pre-judges the case before it, calling it a "quid pro quo" where the ex-Union Minister and President of the law college and the Law student used each other’,” notes Supreme Court advocate Karuna Nundy.
Nundy, who helped draft the 2013 criminal law amendments that were meant to strengthen India’s laws on rape, also noted that the order didn’t just pass remarks about this case, but also “more egregiously, pre-judges a case not even before this court, one in which the complainant was accused of blackmail.”
The fact that the judge later writes that his observations should not affect the proceedings in the trial court does not help – these observations will now become key prongs of the arguments during the trial.
Is Delay in Complaining About Sexual Abuse a Problem?
A particularly glaring problem in the bail order – which played a key role in the conclusion of a quid pro quo by Justice Chaturvedi – is that the survivor didn’t complain to the police or her family about the abuse during the 9-10 months it is alleged to have gone on for.
The judge considers this to be “mind-boggling, disturbing and a matter of concern,” but is it really so?
The Supreme Court has long held that a delay in filing an FIR when it comes to a complaint of rape is not fatal to the case. In Tulshidas Kanolkar vs State of Goa in 2003, for instance, the apex court noted that:
“In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not.”
Note that this comes into play is at the stage of trial, where the competing claims can be properly assessed – not at a preliminary stage of bail. No consideration at all should be given to claims of delay at this stage, but if we assume that they can be considered at this point, then it becomes even more crucial for the judge to look at why there was such a delay.
The bail order dated 3 February does no such thing, and does not consider any reasons as to why the girl did not speak to anyone about her problems for so long. Not that it is even difficult to understand why this would be the case: The power imbalance between Chinmayanand and the survivor.
Nundy explains why this power imbalance is significant to this issue:
“First, Chinmayananda’s ability to threaten the girl and prevent her from testifying, also other witnesses. Second, a highly plausible reason she would say nothing about the continued assault, especially if her mother was employed by the college. And third, given that there is another rape trial against Chinmayanand – one that the government actually tried to withdraw – there is evidence that his power in Uttar Pradesh has served him well in the past.”
There are more than enough examples, the Kuldeep Sengar case being a perfect one, of just how difficult the complainant’s life could be made if she didn’t have some damning proof and evidence to use against him.
Deference for Chinmayanand, Disbelief for the Survivor
A consistent theme throughout the order is a marked difference between the manner in which the judge refers to Chinmayanand and the survivor.
“The rape accused is described as someone who ‘adorned’ the post of Union Minister – Chinmayananda has been a favourite of the ruling party at the State and Central levels,” notes Nundy, who also points out that “The case is also transferred as he is agreed to be an ‘affluent giant robust personality’.”
Instances where the language used for Chinmayanand is surprisingly deferential include
- When the judge describes the complainant’s actions as “mind-boggling” in paragraph 13, where he refers to the accused’s ‘patronage’ and ‘benevolence’;
- When the judge refers to Chinmayanand’s age and ailments, and that (as pointed out by Nundy), he “adorned” the post of minister, who “got himself involved in a most discreet incident” (paragraph 14).
When describing the allegations against Chinmayanand, the judge takes care never to use any definitive terms, but when referring to the survivor, he repeatedly refers to greed, extortion, blackmail, and of course, quid pro quo.
As already mentioned, this kind of language colours the way this case will be viewed going forward, with the girl’s conduct tarnished, even though she isn’t an accused in this particular case.
Other consequences also follow from such treatment: For instance, even though the court acknowledges there is some basis to concerns that Chinmayanand could tamper with evidence and influence witnesses if released, this doesn’t act as a deterrent to allowing him out on bail.
While the court does specify conditions with the aim of preventing this, and also orders the trial to be moved from Shahjahanpur to Lucknow, it is strange that more attention wasn’t paid to this issue, which is one of the key things to consider when granting bail.
All things considered, therefore, it certainly appears that the granting of bail to Chinmayanand on the basis of this order, with its flawed reasoning, is deeply problematic. It is hard, therefore, to disagree with Nundy when she says that “the bail order is a disaster of jurisprudence.”
(This is an opinion piece and the views expressed above are the author’s own.The Quint neither endorses nor is responsible for them.)
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