MONSOON SEMESTER 2018

LEGAL METHODS
TUTORIAL -1
(FINAL DRAFT)

SUBMITTED BY

SAMARTH SANSAR
218099 (SECTION- B)

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 PHUL SINGH v STATE OF HARYANA:
JUDGEMENT CRITIQUE

In the case of Phul Singh v. State of Haryana, Pushpa, a 24 year old lady, was raped by her
husband’s first cousin in broad daylight and was committed under overlapping sexual desire.
The accused Phul Singh was awarded a punishment of 4 years of rigorous imprisonment by
Sessions court and affirmed by the Honourable High Court of Punjab and Haryana. On
appeal to the Honourable Supreme Court, a bench headed by Justice Iyer remitted the
sentence to two years R.I. The age, criminal antecedents of the accused and corrective
measures to shape him into a balanced person were considered to remit the sentence which is
the matter of criticism of this judgement. Here, by this judgement Justice Iyer trivialized the
traumatic assault on woman by giving the male offender a pass. This depicts a patriarchal
mentality which is not at all expected from a learned justice. This judgement in its entirety
shows lack of compassion for victim by downplaying a crime as heinous as rape.
The judgement was based mainly on two aspects, first being the reliance on the affidavit filed
by victim’s Father-in law regarding the forgiveness of accused by the victim and her family.
This showed a patriarchal and familial dominance over the rights and justice of the victim. As
the families here seemed to be more willing to restore familial ties rather than ensuring
proper justice and remedies for the victim. The other aspect was the concept of Restorative
Justice owing to which Justice Iyer remitted the sentence awarded by the subordinate courts.
Throughout his verdict the learned Judge reiterated his stand on reformation of the ‘young
accused’ and the need of his transformation to a normal, balanced human being so that he can
look after his wife, family and get back to his work. Here the socialist ideology, which Justice
Iyer is known to have, seems to be the driving force. There are traces of sexist origin of
socialism. Socialism historically has resulted in the installation of hereditary systems of
entrenched privilege.1 He is focusing on the young age of the accused and how he can be
utilised as a productive resource for the society. In doing so the learned judge is de-
emphasizing the part of victim in the justice delivery mechanism. The victim cannot be
isolated from the process as the whole substance of this process is to alleviate her agony and
the long term effects of such abuse which the victims usually suffers. The judgement far from
providing justice seems to be a depiction of patriarchal and male- centric approach which is
highly prevalent in our society.
1
https://capx.co/the-anti-egalitarian-sexist-origins-of-socialism/

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To me it appears that the whole concept of Restorative justice is wrongly understood and
applied in the present case. It sounds pleasing but it is misleading to a large extent.
‘Restorative justice proclaims that victims are the forgotten entities in the current justice
system and should have a greater role in determining the outcome of their case’ 2 and not
merely seen as witnesses of crime done against them. The victims are central to the
restorative justice process and it emphasizes on repairing the harm caused by the criminal
behaviour and the attempt is to put right the harm done.3 Here in the present case, the process
has been applied wholly as offender- centric. Justice Iyer while advising various measures for
restoration of the accused, he not even once bothered to look for the rehabilitation of the
victim. He relied on the affidavit filed by victim’s father in law and her own consent was not
checked as there is high probability that such condonation can be procured from the unwilling
victim under family pressure. Family members may minimise the harm and support the
perpetrator. As a result, a restorative justice process in the area of sexual assault creates the
risk that the victim will be re-victimised. It goes against the standards of proportionality
(much needed in formal criminal justice). It ‘erodes legal rights, trivialises crimes
(particularly men’s violence against women) and fails to restore the victims’ as is the scenario
in the case in hand. The judgement of this case goes antithesis to what Restorative justice
propounds as victim was completely secluded from the process which was meant to deliver
justice to her and was treated merely as a witness of what she suffered.
The other thing which needs to be focused is the way in which rape was viewed by the
learned judge. The judge seems to be biased in dealing with a crime so grave and brutal. His
socialist background which is ‘certainly conservative, dominating, discriminatory against
women’4 was one of the major reasons behind his verdict which led to such uncompassionate
stand towards the victim. In the judgement, the victim was been described as ‘temptingly
lonely’ and the perpetrator as ‘hyper sexed’ which is absolutely chauvinistic and against the
spirit. Harm caused in such cases of sexual assault is very serious; victims suffer long term
effects of the abuse as it often involves a serious breach of trust, making it difficult for them
to engage in the process. Rape is not only a crime against body of women but completely
shatters her conscience and dignity. In this case also victim Pushpa was assaulted by her close
relative and such actions cannot be justified or excused on any grounds. In cases of such

2
https://rostrumlegal.com/journal/the-need-for-restorative-justice-approach-to-sexual-offences-in-india/
3
http://restorativejustice.org/restorative-justice/about-restorative-justice/tutorial-intro-to-restorative-
justice/lesson-1-what-is-restorative-justice/#sthash.4LntgT2W.dpbs
4
http://www-personal.umd.umich.edu/~delittle/Entry%20communism%20and%20marxism%20on%20gender
%20v2.htm

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seriousness the perpetrator needs to be punished both to deter him and others. The approach
taken by the learned judge can be seen as condoning the behaviour of accused, treating it less
serious and downplaying the quantum of agony which the victim was subjected to. Such
blatant display of force, dominance and mastery cannot be excused simply because of young
age and clean background of the accused. Justice Iyer who once batted for gender equality
and non-discrimination against women in C.B Muthamma v Union of India5 seems to be
deviated from his stand by giving such a discriminatory and illegitimate decision which
deprives the victim from her right to equality and is certainly discriminatory. This judgement
in some sense objectifies women by giving upper hand to the accused, who after committing
such heinous crime is treated with such leniency. The learned judge recognised women as
socially weak and sexually victimised in society yet he kept this reasoning aside and went on
to talk about the reform of accused. The concern for accused person’s self-respect, release of
stress, and restoration depicts that even Judges are biased towards the existing patriarchy and
male dominance in the society and chose to give the male victim an upper hand. It is
unfortunate that the learned judge was driven by certain personal ideologies and the crime of
rape was not dealt with the severity with which it should have been.
In my opinion, any civilised society will view rape as crime of highest degree which needs to
be condemned and dealt with heavy hands. The concept of restorative justice should be
restricted to the range of cases and offenders for which it appears appropriate and
proportionate. Its application in serious offences amounts to diversion from justice for the
victim. This concept has been highly misunderstood and mostly applied as offender- centred
when all it talks about is ‘healing for victims as well as personal accountability from
offenders’
. Hypotheses have to be tested against observations of the world. The practicality needs to be
inspected seriously, whether the victim-offender relationship, which is the basic idea behind
this rationale, can really be established. To me the answer in this context is ‘NO’. In the
society where rape victims are blamed for their sufferings and have to face backlashes, it is
upon the courts to safeguard the rights, interests and dignity of the victims. The society and
families which are highly dominated by male counterparts can do very less to alleviate the
mental discomfort of the victim. Also the Courts and judges are supposed to be most
unbiased and just, which did not happen in case of Pushpa. Justice Iyer biased by his own
socialist ideology failed to acknowledge the human rights, dignity and self-esteem of a
woman. He was greatly concerned about restoring the accused; instead he should have
5
C.B Muthamma v. Union of India (1979) 4 SCC 260

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viewed the whole case from victim’s view and directed all possible means to restore and
palliate her discomfort. Also in cases of such grave brutality against women strict measures
should be adopted to deter such happenings and the restoration of accused should be done
away with. Further, reforms should be made focusing on improving its effectiveness and
sensitivity to survivor’s needs by establishing what their needs are and what justice is for
them.