Bishop’s case raises queries over trial procedure

A woman cannot be herself in the  society of the present day which is an exclusively masculine society with laws framed by men, with a judicial system that judges feminine conduct with a masculine point of view — Henrik Ibsen, Norwegian playwright

This quote sums up what has happened in the judgment of the rape case against Bishop Franco Mulakkal. This misogynist judgment has taken the Indian judiciary 40 years back as it threw out the testimony of the rape victim and other supporting evidences. In fact, the affected here is not the nun-victim alone, but the marginalised, powerless, voiceless, destitute and the downtrodden women in India. It was not a battle between the nun and the bishop, but a battle between the power and the powerless. 

On January 14, 2022, after 105 days of trial, the Catholic Bishop of the Jalandhar diocese, was set free by the first additional sessions court, Kottayam, Kerala. The rape case against the Bishop was registered in 2018. The victim nun was subjected to rape multiple times by Bishop Franco whom she considered as her spiritual father till then. The rape occurred for the period between 2014 and 2016. The judgment pronounced by the Sessions Court of Kottayam, Kerala, completely exonerated the Bishop. Law experts opine that the judgment is a fabricated thesis deliberately made to disbelieve the victim. More, the judgment itself is self-contradictory on its remarks to disprove the witness of the prosecution without ample evidence. 

One of the main contentions in the judgment is that the delay happened in lodging the complaint by the victim nun. As alleged, there occurs a delay. When the rape has happened, the victim was not in a position to reveal herself neither to the other fellow nuns nor to the kith and kin. Once a person joins the nunnery, that person undergoes a ‘civil death’. In their formative years, a nun is being trained scrupulously by her superiors to be obedient to priesthood, especially to the bishops. So, a nun is absolutely not in a position to question the supreme authority of the bishop. 

In the beginning, the victim never intended to go public. Instead, she was trying to find a solution from within. She approached many in the Church hierarchy. She wrote numerous letters, from the Pope to Mother Superior, regarding her ordeal. All the letters and complaints fell on deaf ears. At the same time, Bishop Franco allegedly started taking vengeance on the victim and fellow nuns, lodging fake complaints against them. They reached a dead end and decided to complain to the civil authorities. 

The finding by the trial court that there is an inordinate delay in filing the FIR is against the standard laid down by the Supreme Court in a plethora of judgments, especially in sexual assault cases.  In Swaran Singh and others vs State of Punjab, the Supreme Court categorically stated: “It is well settled that mere delay in filing of FIR is not a circumstance which can throw out the prosecution case in its entirety.” The court hasn’t considered the context and background of the victim and failed to scrutinise the Bishop’s discretionary power over the nun. 

In these circumstances, the judgment of the Supreme Court in State of Karnataka vs Manjanna becomes significant. It says: “Other reasons behind the delay in lodging FIR include social context of the victim, community pressure imposed on her, her dependence on the accused…” Again, in a landmark judgment in State of Himachal Pradesh vs Gian Chand, the SC directed that “delay of filing of FIR cannot be used as ritualistic formula to doubt the authenticity of the prosecution evidence…” Unfortunately, none of these decisions found their way into the judgment.

The present case has some unique features as the victim nun came out in public. The state’s ruling Left and the Congress-led Opposition maintained silence. It is at this juncture that the fellow nuns with the support of civil right activists came out and began the historic protest at Vanchi square near the High Court of Kerala. As a result, the state was forced to arrest and jail the accused. Paradoxically, the agitation was viewed in the judgment as a malicious act to implicate the accused. The judgment completely forgets the fundamental right guaranteed by the Constitution to agitate and register dissent. 

The entire trial procedure is a harrowing experience. In this case, 

the trial of the victim alone lasted for 13 days. Even after this, the judgment rejected her witness statement as not credible. 

From 1983 till date, there is an array of judgments which shed light on criminal law jurisprudence. These judgments have increased faith in the judicial system though there has to be a radical change in the perception of the victim and procedure of the trial. But this particular judgment took us back to the 70s. The judgment has spent a lot of space for the character assassination of the victim, unheard of in recent legal history, especially after the Nirbhaya case. One may wonder from the judgment that the court has put the rape victim on trial instead of the accused. 

The response of the Church to the Bishop Franco case has been disappointing. When the nun came out with a complaint, instead of appointing a commission of inquiry and asking the accused to step down from his post, the hierarchy kept supporting the accused through silence. 

The effort to paint the assault as a case of consensual sex was also not a pleasant scenario for the church. 

The existence of the Church is not constitutional, but moral and ethical. It has meaning only as long as it acts as the conscience of the society. But the response of the Church authorities to the case has been a disappointment. 

Pope Francis, in his speech at the historic Vatican summit on sexual abuse, said: “Here again, I would state clearly: if in the Church, there should emerge even a single case of abuse — which already in itself represents an atrocity — that case will be faced with 

the utmost seriousness… Brothers and Sisters, in people’s justified anger, the Church sees the reflection of the wrath of God, betrayed and insulted by these deceitful consecrated persons.”