The >remarks made by former High Court judge R. Basant, who was part of the division bench of the Kerala High Court that acquitted 35 of the 36 accused in the Suriyanelli case, have drawn flak from jurists and legal community.
Coming down heavily on Mr. Basant, former Supreme Court judge V.R. Krishna Iyer demanded a public apology from him. Mr. Iyer said he should withdraw his remarks and tender an apology to the public, especially to the women community in the state. Mr. Basant’s subsequent statement that he made the remarks during a private conversation and did not know that it was being recorded did not have any credibility, Mr. Iyer said.
In footage televised by a Malayalam TV channel on Saturday, Mr. Basant was shown as saying, “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.” He adds, “Here is a girl who is not normal, who is deviant. All this is there in the judgment.”
B. Rajendran, secretary of the State committee of All India Lawyers Union, termed Mr. Basant’s remarks an interference with the Supreme Court judgment, therefore amounting to contempt of court. He alleged that they might have been made with the “ulterior motive to influence the mindset of the present Division Bench of the Kerala High Court which is yet to begin hearing the case afresh” following the Supreme Court’s verdict.
The Supreme Court had recently set aside a January 2005 Kerala High Court judgment acquitting all 35 persons except the prime accused in the Suryanelli sex scandal case.
Attack on victim’s character
Besides his remarks were an attack on the character of the victim, Mr. Rajendran said. He said the Indian Penal Code made it amply clear that sexual intercourse with persons below 16 years with or without their consent amounted to an offence of rape. Therefore, it was really case of rape, he contended. How one could say that child prostitution was valid when prostitution itself had been banned, Mr. Rajendran asked.
Kaleeswaram Raj, High Court lawyer and legal commentator said while Mr. Basant was an upright judge who had the respect of the Bar, his remarks were “extremely unfortunate and unjustifiable on several counts”. Mr. Raj added that Mr. Basant should have kept in mind that the victim was a living person, “who is fighting with a past which was cruel, and with a future that is uncertain.
She is a victim who lives a life which no one else would desire to live”. Mr. Basant’s remarks about her “are unjust and unfair”.
Mr. Raj pointed out that the High Court judgment on the Suryanelli case “reflects a medieval concept on man-woman relation and child rights. The theory of presumed consent indicated in the judgment negates several Supreme Court judgments on the point.
“After the Supreme Court setting it aside, one of the authors of the judgment, Mr. Basant should not have justified it even in a private conversation. He was talking on an issue which is no longer private. He should have fairly acknowledged the reality that with the Supreme Court judgment, his judgment does not survive any longer”, he said.
He further said the jurisprudence of human rights in the context of violence on women had undergone radical changes in recent years.
“It is unfortunate that some of our judges live in captivities, where entry of new ideas and thoughts is strictly prohibited. This is probably why Mr. Basant is still strong on his arguments,” he said.
Sivan Madathil, High Court lawyer and legal commentator, termed Mr. Basant’s remarks as “absurd”.
He pointed out that it was wrong to say the victim was used for child prostitution, when the law itself had prohibited prostitution. If the former judge had found that she had been used for child prostitution when he wrote the judgment, he should have issued a directive to strictly implement the prohibition of prostitution in the State.
The court was not worried about the plight or rights of the victim, but was concerned only about the rights of the accused. Why did Mr. Basant not probe the antecedents of the accused who had assaulted the girl, he asked.
D.B. Binu, lawyer and human rights activist, said Mr. Basant should not have made such remarks either in a private or public conservation. A judge was supposed to keep his hands off his judgment once it was delivered, he said.
