To
The Hon'ble Chief Justice
High Court of Karnataka
Hon'ble Chief Justice Shri Vikramjit Sen,
We are writing to you in the context of the recent media reports regarding Hon'ble Justice Bhaktavatsala's verbal comments in open Court. We are bringing these comments to your notice because they do not seem to be in consonance with the oath Justice Bhaktavatsala has taken under Article 219 to 'bear true faith and allegiance to the Constitution of India and to duly and faithfully and to the best of my ability, knowledge, and judgment perform the duties of my office without fear and favour, affection or ill-will and to uphold the Constitution and the laws.' The comments attributed to J. Bhaktavatsala are deeply offensive to all right thinking people, lower the dignity and agency of women who constitute literally half the population of this country and betray animus towards women.
It has been reported that J. Bhaktavatsala in open court has observed as follwos:
1) According to media reports on August 31 2012 Justice Bhaktavatsala stated to a woman litigant in a divorce matter, "Women suffer in all marriages. You are married with two children, and know what it means to suffer as a woman. Yesterday, there was a techie couple who reconciled for the sake of their child. Your husband is doing good business, he will take care of you. Why are you still talking about his beatings? I know you have undergone pain. But that is nothing in front of what you undergo as a woman. I have not undergone such pain. But Madam (Justice BS Indrakala) has."
The Court asked the woman if her parents were present, at which her father walked up to the bench. The judge was reported to have remarked in open court, "Ask your father if he has never beaten your mother!" When the woman said her husband would beat her in the open, in front of everyone, Justice Bhaktavatsala remarked that it was she who was bringing it out in the open. The court was told that the husband would beat her in the middle of the night and had thrown her out of the house.
When the woman's advocate produced photographs showing her swollen face after the beatings, the court said, "You have to adjust. Are you just behind money? There is nothing in your case to argue on merits. You have to give him a divorce or go with him. Have you read about actor Darshan. He spent 30 days in jail after beating his wife. But they are living together now. What is on your mind and what is on your agenda?" The court directed the couple to go out and talk to each other. (Bangalore Mirror, August 31,2012)
2) In another case, a young female advocate was citing the allegations against the husband, Justice Bhaktavatsala stopped her midway and asked, "Are you married?" When she replied in the negative, the judge said, "You are unfit to argue this case. You do not know real life. Why are you arguing like this? He is your (client's) partner, not a stranger. 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."
(Bangalore Mirror, August 10, 2012)
Our concern is that these comments apart from lowering the dignity of the High Court of Karnataka are also indicative of a judicial mindset which leads to judicial pronouncements which are not in keeping with the Constitution. In particular, the Constitution protects intimate choices with respect to one's partner transcending barriers of caste, class and religion, regardless of parental opposition. In Writ Petition (HC) No.67/2011, Avinash v. State of Karnataka, J. Bhaktavatsala has expressed his strong opinion against love marriages and by extension the choices made by young women about whom to marry are summarily brushed aside as choices made because of 'hormonal imbalances'. To quote from the judgment;
"In our opinion, the girls below the age of 21 years are not capable of forming a rational judgment as to suitability of the boy, who is in love. It is relevant to mention that those girls, who are suffering from harmonal imbalance easily fall prey to the boys and fall in love, marry and repent at leisure. The parents of the girl are interested in selecting a suitable boy and see that the girl leads a happy married life. Since the Hindu Marriage Act does not deal with love marriages, in our view, it is a high time that the Parliament shall take note of the sufferings and turmoil of such girls and their parents and amend the law suitably. We perpetuate our memory as to the episode of the famous Telugu Cine actor Sri Chiranjivi's daughter's love marriage. Hence, we suggest that in the case of love affair of a girl, who is below the age of 21 years, there shall be a condition that the parents of the girl should approve the marriage, otherwise such marriages shall be declared void or voidable."
In particular, Justice Bhaktavatsala's above mentioned judicial pronouncement undermines the very idea of India as a nation in which all persons are free to form consensual intimate relationships with others of their choice regardless of narrow considerations of gender, caste, religion and class. If India is to indeed move beyond being a society riven by sharp divisions of caste and religion, the antidote lies in the choices made by young people to love across these narrow domestic walls, regardless of parental opposition.
As Dr. Ambedkar noted:
I am convinced that the real remedy is inter-marriage. Fusion of blood can alone create the feeling of being kith and kin, and unless this feeling of kinship, of being kindred, becomes paramount, the separatist feeling- the feeling of being aliens- created by Caste will not vanish.
(Annihilation of Caste)
The citizens of India look to the Court to protect their right to equality, dignity and liberty. Judges must keep this constitutional mandate in mind of being the protectors of the Constitution, even as they perform their duty to interpret the law. Thus judges do not have a free reign to give expression to their own private morality or even the morality of the wider public, but rather have a duty to interpret the law in the light of the Constitution. Judges are bound by what the Founding Father of the Indian Constitution, Dr. B.R. Ambedkar describes as constitutional morality. Dr. Ambedkar quoted Grote, the historian of Greece, who had said:
"The diffusion of constitutional morality, not merely among the majority of any community but throughout the whole, is an indispensable condition of government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable without being strong enough to conquer the ascendancy for themselves."
After quoting Grote, Dr. Ambedkar added:
"While everybody recognised the necessity of diffusion of constitutional morality for the peaceful working of the democratic constitution, there are two things interconnected with it which are not, unfortunately, generally recognised. One is that the form of administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing its form of administration and to make it inconsistent and opposed to the spirit of the Constitution. ......The question is, can we presume such a diffusion of constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic."
[Constitutional Assembly Debates: Official Reports Vol.VII: November 4, 1948, page 38],
J. Bhaktavatsala in making those above statements, has clearly overstepped the bounds and limits of constitutional morality as described by Dr. Ambedkar. We are extraordinarily disappointed and let down by the fact that a high constitutional functionary has through his reported comments and judicial pronouncements betrayed the enormous trust vested in him. There are serious apprehensions that in the constitutionally mandated area of non-discrimination on grounds of gender, J. Bhaktavatsala will not decide in accordance with the constitution but rather in accordance with his private morality.
We ask that you consider strong action in your capacity as a Chief Justice to send out the message that no Judge can so easily betray the mandate of the Constitution to ensure equality of gender. Judges have a duty to protect the mandate of Article 14 of the constitution which guarantees equality and non-discrimination and Article 15 which guarantees that there shall be no discrimination on the basis of gender. Justice Bhaktavatsala's comments and action in court in condoning violence against women, in requiring that unmarried women are not capable of arguing matrimonial cases and comments even about Justice Indrakala, his sister Judge are extremely gender biased and discriminating against women. This bias against women is reflected not only in his statements in court but also in his judgments. Gender bias is ordinarily defined as a tendency to think about people primarily on the basis of their sex. In the judicial system, gender bias results in decisions or actions that are based upon preconceived notions of sexual roles rather than on fair and impartial appraisals of any situation. Gender bias must be eliminated in the judicial system not only because it influences the perception of women in the courtroom, but also because it undermines the manner in which courts apply the law and thus affects the substantive rights of the parties.
In the interest of upholding the principles of our Constitution, we would request the following:
1. That J. Bhaktavatsala issue an unconditional public apology for his gender biased and offensive remarks.
2. That the all appeals from the judgments of the Family Court classified as MFA(FC) are removed from J. Bhaktavatsala's docket.
3. Set up a Commission to look at gender bias within the judiciary in Karnataka
We would also request you to take serious note of these comments and ensure that in your capacity as the Chief Justice, no judge of the Karnataka High Court again gives any room for such gross insensitivity to all forms of discrimination based on gender.
