Habibur Rahaman
Image Source: https://www.mumbailive.com/images/news/images_1517817513248_rape.jpg?w=1080

In this Guest Post, Ratul Das (Assistant Professor, Heritage Law College, Kolkata) gives a critical analysis of the judicial trend exemplified in Habibur Rahaman v. State of West Bengal

You break it, you buy it.

Proposition A: Shoppers who have been unfortunate enough to have inadvertently broken or defaced items on display in a store are well wary of this maxim. Sounds fair enough. Even if you don’t do it intentionally, the consequence of the accident has the effect of destroying or diminishing value in the property violated, and the poor owner must be compensated for the lost value. Holds truer if you do it intentionally.

Proposition B: You commit rape on a woman. That is, you “defile” her in a manner whence her “purest treasure is lost”. What is more, you do that intentionally and therefore, must buy her, for her value is “lost” to all prospective buyers.

Sounds fair enough?

The recent judgment of the Honourable High Court at Calcutta in Habibur Rahaman @ Habai v. State of West Bengal, reducing the sentence of a rape convict for the “adequate and special reason” that he subsequently married the survivor, is only the latest in a series of judgments in the last few years where marriage between the perpetrator and survivor of a rape has been recorded as an extenuating factor in the measurement of just desserts. The present opinion has drawn from a 2015 Supreme Court decision (in Ravindra v. State of Madhya Pradesh) wherein the factum of marriage and compromise between the convict and the survivor was seen as an adequate ground to reduce the punishment of the former. Interestingly, it has been promptly noted that the said decision was rendered per incuriam, since the two-judge bench had based its opinion on a 2011 judgment (in Baldev Singh v. State of Punjab) which had already been held as “not a precedent” by a three-judge bench in 2012 (in Shimbhu v. State of Haryana).

The said opinion highlighted observations of the Supreme Court in State of Madhya Pradesh v. Bala @ Balaram (2005), where Justice P.K. Balasubramanyan had held that “the offer of the rapist to marry the victim” is not a “relevant” reason. On a parallel note, criticizing Madras High Court’s suggestion of mediation in rape cases, Justice Dipak Misra (currently Chief Justice of India), speaking for the Apex Court in State of Madhya Pradesh v. Madanlal (2015), emphasized the non-compoundable nature of the offence of rape and rejected the scope for “compromise or settlement” in such cases.

A strict reading of Bala and Madanlal may betray a slight leeway. While the observation in Bala regardinf offer of marriage was mere obiter, Madanlal would act as a precedent for the negation of compromises in rape cases. Ironically enough, then, the opinion in Ravindra may serve as a more direct Supreme Court precedent on the point decided by the Calcutta High Court in Habai. (In contrast, the 2015 Punjab and Haryana High Court verdict in Lovely v. State of Punjab had quashed proceedings based on a compromise, leading to the marriage between the accused and the prosecutrix, and went contrary to the ratio in Madanlal.) However, the intention of the Supreme Court in these two opinions appears quite clear to warrant a preclusion of the factum of marriage between the perpetrator and survivor as a relevant consideration for the exercise of judicial discretion in the determination of the quantum of punishment. If that is so, what explains the persistent judicial practice of leniency in such cases? Are these mere ‘errors’ that the courts keep falling prey to, or are we looking at a more insidious malady?

Are these judgments an expression of the indelible commodification of a woman’s sexuality? The opinion of Justice Asha Arora, like several others representative of this trend, must be read in distinction from the pragmatic considerations of Gauhati High Court in Jahirul Islam v. State of Assam (2016) about the difficulties of obtaining inculpatory evidence in cases where the perpetrator marries the victim. From a restorative point of view, an offer to marry the victim may accommodate an interpretation of remorse and expiation on the part of the perpetrator. But one does not find objective reflections in these judgments on the mental state of the perpetrator based on which a reasonable inference can be drawn about his post-fact attitudes of repentance and reformation, nor attempts to probe the state of recovery of the survivor from the trauma of sexual assault. In fact, summary presumptions as to the “happily” settled conjugal life of the perpetrator and the survivor have been taken to automatically satisfy the discretionary threshold for relaxation of sentences.

The progressions of the Hadiya case offer a differential landscape. On one hand, we see a deference that has been routinely accorded to claims of happy communion between a woman and a man whose relationship once believed the basic notions of consent and a wishful assumption that the predator suddenly turns respectful towards the sexual autonomy of the survivor by virtue of their marriage. On the other hand, we have seen such deference being denied to submissions by adult spouses as to the bona fides of the solemnization of their marriage, to the extent that the Supreme Court, as irony would have it, deemed it necessary to assess the “mental condition” of the wife for the purpose of deciding on the legitimacy of the said marriage.

It is a sad travesty of justice when law serves as a vehicle for the legitimization of rape through the institution of marriage. A straightforward appraisal of these opinions suggests that the perpetrator does the survivor a favour by offering to marry her in the same sense as the malfeasant shopper does in paying for a damaged item. The rot seems to be rather deep-rooted in the judicial consciousness, and very much present in Justice Misra’s observations in an opinion meant to allay these concerns. Certain parts of the Madanlal judgment indeed exhibited a practical understanding of sexual politics: “Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure (on the survivor) in an adroit manner…” (text between parentheses supplied) But the Court proceeded to place rape in almost the same bracket with offences relating to property when it used euphemisms such as “jewel” and “purest treasure” in an attempt to locate the essence of the loss inflicted on a rape survivor. In doing so, the Supreme Court perpetuated the construct of sexuality of a woman – her “reputation” and “honour” – as an aspect capable of being dissociated from her personality, and instrumental in preserving her “integrity”, robbed of which, she, like a broken teacup in a ceramic store, incurs substantial depreciation of her proprietary value. This perspective strips the offence of rape of the irreversible psychosexual trauma undergone by the survivor, paying mere lip service to the “dignity” of the woman.

These judgments were based on the old proviso to sub-section (1) of Section 376 of the Indian Penal Code, which conferred upon the court a discretion to impose upon a rape convict a sentence of less than the erstwhile maximum period of seven years, should there be “adequate and special reasons” in its opinion to justify so. While Section 376(1) was amended in 2013 to the effect of deleting the proviso, the court still retains the sentencing discretion in so far as the judge may award an imprisonment of a period not less than seven years, which may extend to an imprisonment for life. Hence, there is a good reason to apprehend that these judgments would continue to vie for persuasive attention, influencing judges in outlining their sentencing policies in rape cases.

Judicial attitudes towards female sexuality have far-reaching implications. How can we expect the judiciary bound by patriarchal schemas to engage in a consistent offensive on social evils like honour killings and moral policing that are largely products of objectifying a woman’s sexual agency? The same concern arises in deliberations on marital rape. One hopes that the judges are alive to the anomalies in the culture of liberty and egalitarianism they strive to nurture. Plugging the holes in the discourse of gender justice with a more nuanced treatment of sexual violence would be a welcome start.

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