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Updated: February 10, 2013 03:09 IST

Former judge’s remarks on Suryanelli victim create a furore

C. Gouridasan Nair
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A file picture of Justice Basant. Photo: S. Ramesh Kurup
The Hindu A file picture of Justice Basant. Photo: S. Ramesh Kurup

Remarks made by former Kerala High Court Judge R. Basant and captured by a Malayalam TV channel, where he describes the Suryanelli sex scandal victim as one who was “used for child prostitution,” have created a furore.

In footage televised on Saturday, the former judge, who delivered the January 2005 High Court judgment in the case acquitting 35 out of the 36 accused, says: “She was used for child prostitution. Child prostitution is not rape. It is immoral. I am not blaming her... It is all there in my judgment.”

Referring to the victim, Mr. Basant adds: “This girl is said to be in captivity. [Yet] she is taken to a doctor for a sore throat. How can her captors do such a thing? Everything is there in the judgment. Please read the judgment.”

Mr. Basant, who currently practises in the Supreme Court, was caught on camera while engaged in a personal conversation with two guests before delivering an address at a national seminar on ‘Whither India’ at Thunchan Paramba in Tirur. The comments seem to have been caught on a camera that was held at a low angle, possibly not in full view of its subjects.

“Here is a girl who is not normal, who is deviant. All this is there in the judgment,” he held forth.

He says the Supreme Court had not read the High Court judgment and that was why it had expressed shock over the 2005 judgment.

On January 31, 2013, the Supreme Court ordered the High Court to hear the appeal afresh. Mr. Basant had delivered the verdict along with fellow judge K.A. Abdul Ghafoor.

Mr. Basant had earlier declined to comment about the case when mediapersons corralled him with questions.

“You read the judgment. Everything is in it,” he had told reporters.

‘Unethical’

He later described the television broadcast of his remarks “unethical and shameful.”

Prostitution: Done individually and voluntarily, a woman (male
prostitution is not recognized in any law in India) can use her body's
attributes in exchange for material benefit. In particular, the law
forbids a sex worker to carry on her profession within 200 yards of a
public place.

Here the keywords are 'individually','voluntarily' and 'public place'.
None fit.

Indian Penal Code (IPC), Section 361. Kidnapping from lawful
guardianship

Whoever takes or entices any minor under sixteen years of age if a
male, or under eighteen years of age if a female, or any person of
unsound mind, out of the keeping of the lawful guardian of such minor
or person of unsound mind, without the consent of such guardian, is
said to kidnap such minor or person from lawful guardianship.

Key-line is "without consent of such guardian".

In the judgement all of the above have been tactfully ignored.

The writing style of the judgement, pussyfoots belying its strength.

It's oddly very soft on the accused.

from:  Narayan Das Raman
Posted on: Feb 12, 2013 at 11:40 IST

Judges like Basant is a shame to the society and to the judiciary especially…. describing the media “unethical and shameful” will not change what you have commented.

The Indian Penal Code, 1860 375- Rape.-- A man is said to commit" rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First.- Against her will. Secondly.- Without her consent. Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.- With or without her consent, when she is under sixteen years of age. Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

from:  payal
Posted on: Feb 11, 2013 at 14:28 IST

I think the question is whether the judge has said anything illegal. If
he has said anything illegal, then anyone can take legal route to get
him punishment. I think we cannot question his morale. The comment by
the judge was taken by the media by a hidden camera as per the
knowledge.

from:  garlin vincent
Posted on: Feb 11, 2013 at 00:37 IST

It is very difficult to believe the comment came a former chief justice!ghosh!I think it all go this way.He was the person who aquited all the 35 involved in the suryanelli case.I am highly skeptical that he is trying to raise cloud and smoke to cover the facts as the controversial case is taken to the supreme court now.he must have thought to defame the girl by blaming her as a child prostitute so that the recent hues and cries over the case may be vanished.
The truth always uncovers itself somehow.No his involvement in the case to save faces of big guns invoved is crystal clear.
His remarks are completely against of public opinion and quite immature whatever his motives might be .
Let there be again fresh investigation into the case and bring the miscreants to law.Even if the judge is found corrupted ,he should be punished along with the convicts.
I salute the brave reporter,who secretely got the uncivilised comments of Basanth.Let there be some positive follow ups.

from:  pallikunnil Divakaran
Posted on: Feb 10, 2013 at 16:14 IST

these days the media is present everywhere. we can otherwise say that they are omnipresent. at least the people in responsible positions needs to restrain themselves otherwise we will be moving towards a castrphic situation. we do not know whom to believe. when a former judge says ' --- the s c did not read my judgement ---'. it is a bigger issue it should not told like this. you had been a responsible judge you must respect the office you had been there at a point of time. it looks as if you ar making an allegation against an institution so high on which, looking to the present day situations , is the only institutions who is taking care of the governence at large. poltical class is not coming of age. so this must be avoided.

from:  mahesh kumar
Posted on: Feb 10, 2013 at 15:59 IST

Even granting that it was a case of child prostitution as the learned
(former) judge wishes to claim, is it not possible for the judiciary to
take a suo moto case when they have the knowledge as to what had been
happening? Are they not the guardians of the rule of law, leave alone
that every citizen has the right and duty as far as the rule of law is
concerned. Which way is this country going?

from:  Ramakrishnan
Posted on: Feb 10, 2013 at 13:03 IST

All that the judge has done is to add insult to injury and this should further aggravate the trauma of the victim and her kith and kin. Having passed a flawed judgment that allowed all the rapists to go free the judge should have been remorseful rather than appear prejudiced.

from:  C V ARAVIND
Posted on: Feb 10, 2013 at 06:25 IST

Section 375 of IPC states that sexual intercourse of any girl less than or equal to 16 years is considered rape with or without consent. How could he call a 16 year old being forced into sex 'not normal' and 'deviant'. And we are talking about a former High court judge!!

from:  krishna chaitanya
Posted on: Feb 9, 2013 at 22:55 IST

Does he mean to say that Judge in supreme court have not read the
judgement he passed and rejected without understanding? In child
prostitution, child is the culprit? Supreme Court have already issued
decision that this Judge did not do his job properly.
He forgot the basic principles that after passing judgment a judge
becomes functus officio and cannot comment not only on his judgment
but also on the judgement of the higher court (SC). The case must be
reexamined.

from:  SThomas
Posted on: Feb 9, 2013 at 22:28 IST

This is like blaming the victim for the rape. Extremely shameful comment
from the judge himself. All right thinking people must condemn it.

from:  Bhaskar Chatterjee
Posted on: Feb 9, 2013 at 21:14 IST

I would request The Hindu to post the judgement if possible in order to get a better insight at it.

from:  Amit
Posted on: Feb 9, 2013 at 20:35 IST

I live in the UK, and it is a serious crime punishable by many years of imprisonment if someone had sexual intercourse with a girl or boy under 16 years old, even with one's consent (RE:CHILD SEX ACT). The girl in question was at liberty to do what ever she likes, and I think under Indian Laws, no one can violate her wishes as far as sex is concerned. This judge wrote the judgement under the illusion that the girl was 'deviant', a vestige of the hollow pride of male specimen.

from:  c j george
Posted on: Feb 9, 2013 at 20:27 IST

Most of the Indians and Pakistanis ridicule western civilization where rapes are minimal in comparison to India/Pakistan in spite of the fact that girls/ladies wear minimal clothes and are out all over the town in late nights.

Having sex with a child, prostitute or not, should be punishable by law and the society. How can the judges let the criminals go free?

Those judges, Basant..., should be punished harder than the ones who committed the crime.

Indians have big mouth but do not follow their own preachings.

from:  G M Patra
Posted on: Feb 9, 2013 at 20:16 IST

Basant like Judges are shame to the cultured society. If law and order
system have nothing to do; People should do something!

from:  Prathiba
Posted on: Feb 9, 2013 at 20:02 IST
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