Feminist Critique of Phul Singh v. State of Haryana

The judicial system is supposed to be the pillar of justice. Its aim should be to provide justice to every individual whenever his/her right has been breached so as to correct the wrong which has been perpetrated. Although it is expected of the judiciary to be impartial while adjudicating on any case, the judgments delivered are often found to be influenced by the morality of the judge and of the social conditions that surround the society during that period. This is even more evident in rape cases, where the circumstances are viewed from a dominant male-centric ideology, which often completely ignores the position and perspective of women. The need for redefining the word “women” and looking at such cases from the perspective of a “reasonable women” as has been advocated by feminists thus becomes crucial.

In Phul Singh v. the State of Haryana[1], Phul Singh, a man of 22 raped his cousin’s wife, Phushpa. Subsequently a sentence of 4 years rigorous imprisonment was awarded by the session court, which was further re-affirmed by the high court. On appeal to the supreme court, the conviction was upheld but the term was reduced to 2 years rigorous imprisonment. This is a critique of the Supreme Court judgment delivered by Justice V.R. Krishna Iyer.”

Justice Iyer has been identified as a realist judge, who draws from the restorative and rehabilitative forms of justice. He focuses on therapeutics and believed that long incarnation aggravates the malady, and destroys the chances of turning into a better person who is devoid of erotic aberrations. He wants “punitive deprivation of personal freedom to be goal-oriented.”[2] This ideology is also supported by the critical legal theory which believes “the life of the law is not logic but experience”[3] and focuses on delivering complete justice. It must be noted that Justice Iyer served as a minister of Kerala[4] and thus had personal knowledge of the conditions in the Indian Prisons. According to him, the prisons could not help in reformation of a person therefore not serve true justice.

The repetitive emphasis on the young age of the offender and how he did not want a “potentially good person to turn into hardened delinquent” reflects Iyer’s vision of a better India and the role that youngsters can play to help shape it. Therefore, he did not want the offender to turn into “an embittered enemy of the society.” Gandhian and Nehruvian ideology of transforming India influenced him. This ideology thus played a role in the delivering of the judgment.

Although the aforementioned vision is commendable, the judgment by Justice V.R. Krishna Iyer is problematic in many ways. It downplays the magnitude of a heinous crime like rape by attributing the act of the accused to him being a “philanderer” and “hyper-sexed” at the time of its commission. The court also emphasizes on him not being a habitual but a first-time offender.  This can be interpreted as the court trying to justify the act by removing the mental element of intention from it and attributing it solely to his behavioural conditions. Here the court was probably influenced by the western psychological theories that placed the cause of rape in the minds of the offenders.

Under this theory, rapists were treated as patients who had abnormal personalities. Thus, they needed a prescription rather than a punishment.[5] This is further substantiated when the court says “Hyper-sexed homo sapiens cannot be habilitated by humiliating or harsh treatment”[6]and therefore “In prison treatment must be geared to psychic healing, the release of stresses, restoration of self-respect and cultural normalisation, apart from training to adapt oneself to the life outside.”[7]

The words such as “overpowered by sex stress”, “fulfilled his erotic sortie”, “temptingly lonely prosecutrix” tend to objectify the women and treat them as sex objects that are used to satisfy and relieve that stress. This is against the whole concept of equality and treating women as of right bearing individuals, which the feminists have long been fighting for. The court further says that women are “often socially weak and sexually victimised” which again treats them as inferiors to men. Character, status and reputation should not be the relevant factors for consideration by the court while awarding sentence to a rapist.[8] Hence there is a clear need for “redefining the word women”[9]and how they are looked at by the society, as claimed by Christine Littleton and Mackinnon[10].

The judgment is a glaring example of the patriarchal nature of the legal system and society. The rationalisation was given for reducing the sentence, inter alia was that the victim and her parents have forgiven the molester, to prove this an affidavit from the father in law of the victim was filed and it was stated that if need be, victims statement could be recorded. But this statement was never recorded. The fact that the victim could have been forced to condone was although acknowledged, not accounted for while delivering the judgment. It should be noted from the person filing the affidavit to the person delivering the judgment are all males, which shows another problem in the legal system, “It is the men who make the laws, and often men, who execute them.”[11]

The biggest irony in the judgment is, even after acknowledging that “rape, is a violation, with violence, of the private person of a woman-an outrage by all cannons”[12] familial compromise is prioritized. The family tie and the social compromise is considered as a mitigating factor but it neglects the fact that the familial setup is itself patriarchal-The men are the one who would have a final say on such matters, especially considering the time period when the judgment was delivered. The prosecutrix could be one of the victims of routine subjugation of women that occurs within the families.[13]Thus, the court fails to deliver justice to the women, as the feminists rightly claim: “law and legal system fail to intrude into the home to address the exploitation of women that routinely occur in the private domain.”[14]

The court further lays down the blame on “Modern Indian Conditions” which are prone to “lascivious dating and mating by the unwed students” and where the “corrupt morals are reaching a new high”, and hence says that the government needs to protect “Indian Womanhood” by devising a policy on “female flesh and sex sanity.” This reflects the male view of the female sexuality deployed in rape cases and the bias embedded in the entire system and how judges can act as an agent of this biased system and promote the bias further.”

Moreover, the judgment only focuses on reforming the convict and pays no heed towards the reformation that the victim might need. The attitude that the court adopts towards the female victim is abhorrent. The fact that the offender had a young wife and a farm to look after, shows the tendency of the court to sympathize with the accused and take notice of the repercussions of the offence on him and his family. It does not even try to find out what happened to the victim and there is no mention of the physical and mental agony that the victim had undergone and other consequences the offence had on her.[15] This undue leniency adopted by the court encourages such violence against women. This flaw has been pointed out by Christine Littleton – “The world is phallocentric and oppressive in the manner in which it encourages or allows violence against women.”[16]

Thus, as much as the reformative approach adopted by the court towards the oppressor is commendable, the attitude of the court toward the “female victim”, the gender bias, the embedded patriarchy and the routine subjugation of women and their voices, and the undue leniency adopted by the court cannot be justified on any ground. The judgment is proof that women are treated as irrational, emotional, passive, sensitive, subjective, contextualised, inferior, socially and physically weak. Thus, there is a clear need to redefine the word women and view the judgment from a “reasonable woman” perspective rather than a “reasonable man” perspective.


[1] (1979) 4 SCC 413.

[2] Supra note, 1.

[3] Oliver Wendell Holmes, the Common Law I: Little, Brown and Company.

[4] PP Rao, A rare judge, 5 JILS (2013-14) 157.

[5] Enforcement of rape laws in India: Gender Justice or Gender-sensitive, [2011] 1.1 NULJ 145.

[6] Supra, note 1.

[7] Supra, note 1.

[8] Macdonald. M. John, Rape Offenders & Their Victims, Charles C. Thomas Publishers.

[9] Gary Minda, Feminist and Critical Race theory in Postmodern Legal Movements, NYU Press. (1995). Available at https://www.jstor.org/stable/j.ctt9qg2gf.14.

[10]  Extracts from both works may be found in Lloyd’s introduction to jurisprudence, 8th ed.

[11] Supra, note 9.

[12] Supra, note 1.

[13] Supra note, 6.

[14] Supra, note 9.

[15] Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204: 1992 SCC (Cri) 598 is one of the very few cases wherein, the Apex Court tried to find out the consequences of the offence on the victim.

[16] Christine Littleton, Feminist and Critical Race theory.

Sanya Zehra Rizvi from The West Bengal National University of Juridical Sciences, Kolkata

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