This article is written by Ansruta Debnath, from National Law University Odisha. This article talks about the need to employ uniform sentencing policies in rape cases.
Owing to a large number of cases of rape, a need for establishing uniform sentencing policy guidelines have been felt. Too often the punishment gets diluted because of ancient misogynistic influences on the judges. The unconscious prejudice against women that exists even today cannot be allowed to dictate the basic right of a rape survivor to get justice. This article mainly explores this issue and points out how rules are required to attain justice without bias.
Rape crimes : spiralling into worse
Regardless of whether one is a feminist or not, every person believes that rape is one of the most heinous crimes possible. Motivated with a need to assert dominance, a need exacerbated by the prevailing notions of patriarchy, toxic masculinity and misogyny, rapists violate the fundamental bodily autonomy of their victims, leaving long-lasting mental and physical repercussions.
According to Indiastat, the number of victims of rape in the year 2019 were more than 32,000 among which nearly 5000 were minors. 2017 had the same total number, but the percentage share of minors was much more. The year 2020 saw a dip with cases just upwards of 28,000. Yet the reason for such a low number of cases was probably because of the lockdown that was imposed nationwide for the pandemic and not because of any change in the state machinery.
The number of cases is still alarming. There might be so many cases that simply go unreported. Due to people being stuck indoors, the number of cases being reported is also reduced, especially when it comes to rape within the household or in the neighbourhood. Clearly, the present criminal justice system is not being able to effectively control the disconcerting and increasingly spiralling number of cases.
Existing legal provisions
The Indian Penal Code, 1860 and the Criminal Procedure Code, 1973 are two of the most comprehensive criminal laws of India. Legal provisions related to sexual crimes have found their backing here. According to Section 375 of the Indian Penal Code, rape is said to have been committed when any man penetrates a woman, or causes someone else to penetrate, either penal penetration or other, through the woman’s vagina, urethra, anus or mouth without her consent.
According to Section 90 of the IPC, consent under fear of injury is not considered free consent. Thus, consent in rape is not considered valid consent when it is given under fear of being hurt to the woman or to any other person. Moreover, consent by a minor and that given by a wife under 15 years of age to her husband is considered invalid consent. It is important to note that according to Section 114A of the Indian Evidence Act,1872, presumption of absence of consent will be there if it is so claimed by the victim of rape.
Over the years, the degree of punishment and scope of sexual offences recognized by the law has been increased.
Initially, for rape, the minimum jail term was set at 7 years of rigorous imprisonment. But the Criminal Law (Amendment) Act, 2018 made the current punishment for rape a minimum jail term of 10 years which might extend up to life imprisonment. The accused is also liable to pay a fine.
After the Nirbhaya gang-rape case, Section 376A was inserted by way of the Criminal Law (Amendment) Act, 2013 that introduced ‘death penalty’ as a punishment to the perpetrator who caused the woman to die or left her in a vegetative state.
Moreover, the Criminal Law (Amendment) Act 2018 put the minimum punishment for rape of a girl below 12 years of age at 20 years which could be increased up to capital punishment.
Trends in punishment
Certain crimes have fixed single punishments while others provide a range. Using the established legal text, the judge decides the punishment. Thus, even though law boasts of being unambiguous, in a certain sense, the punishments given are to some extent based on the judges’ sense of justice. Determining sentences is never a black and white affair. After the accused is convicted, the judge needs to decide based on the way the crime was committed, the degree of accountability the convict is accepting, the effect the crime had on the victim etc. Thus, they have a significant amount of discretion in this matter.
Now, the sense of justice is not the same in every person. In most cases, this sense of justice is heavily influenced by the cultural norms with which the person grew up. The same applies to judges. As a result, despite there being a uniform law regarding the matter, judgements pronounced, although echoing similar sentiments, might have great non-uniformity with regards to the degree of punishment.
A disturbing mentality
In cases of rape and other sexual offences, judgements are significantly marred by patriarchal notions that persist in the minds of judges. These societal influences are revealed throughout their comments in cases they are judging. The notion that rape is an attack on a woman’s ‘purity’ is widely prevalent. Losing this ‘purity’ makes a woman incomplete in the eyes of society because she is not ‘marriageable’ anymore. To rectify the situation, the judges give suggestions like asking the rapist to marry the victim and what not. The absolute fallacy of these types of judgements is glaring.
For starters, these judges fail to identify why rape survivors come to courts for remedy in the first place. The notion that women only care about getting married is ridiculous. Rape survivors approach the courts to get justice for the violation of their dignity and body. It is alarming to find that judges actually believe that women will be happy and satisfied being married to her rapist.
Secondly, the fact that rape ruins the ‘purity’ of someone is a very problematic idea in itself. Instead of the rapist, the victim feels the most shame. The taboo related to rape also prevents so many women from reporting what happened to them.
In a more recent case of Mohit Subhash Chavan vs. the State of Maharashtra and Anr.(2021), Chief Justice Bobde was reported to have asked the Accused whether he is willing to marry the victim. Facing backlash, Chief Justice Bobde defended his statement saying that “as an institution, they have the highest respect for womanhood” and that the statement was based on judicial records of the case. The facts of the case involved a man repeatedly raping a minor. However, before a complaint could be filed, the man’s mother made an agreement with the minor’s illiterate mother that upon reaching the age of majority, the two would get married. But upon reaching the age of majority, the victim filed a complaint instead. CJ Bobde claimed he was asking the question to the accused in relation to his promise and had no intention of implying that in case the accused agreed to marry the victim, it somehow diluted the severity of the crime.
In another case of outraging the modesty of a woman, the Accused was asked by a bench of Justices AM Khanwilkar and S Ravindra Bhat of the Madhya Pradesh High Court to present himself in front of the complainant so that she might tie a rakhi on him. Only then, the Court stated, will the Accused be eligible for bail. The Supreme Court later overturned this order.
According to Section 53A of the Indian Evidence Act, past sexual experiences of the victim are immaterial while deciding cases of rape. Thus, questions related to that cannot be asked to the victim. Yet a two-judge bench of the Punjab and Haryana High Court, in Vikas Garg v. State of Haryana (2019), while granting bail to three people charged with rape and other offences, observed that the victim apparently had a “promiscuous attitude” and her “narrative did not throw up gut-wrenching violence that normally precedes such incidents”. Thus, apart from bringing up the victim’s past history, the judges revealed an inherent mental image of an “ideal case of rape” which involves the woman fighting and resisting till she falls unconscious. Anything other than that signifies consent to a certain degree.
Similar observations have been made by the Delhi High Court in Mahmood Farooqi v. NCT of Delhi (2018), where the victim was sexually attacked by someone she knew. The Court commented that it is very “surprising” that she did not bring it up with the attacker the next day.
In another instance, the Karnataka High Court, while granting bail to the rape accused in Rakesh B v State of Karnataka (2020), commented on the fact that the victim fell asleep after she was raped and that the fact she fell asleep was not the way “Indian women react after getting ravished”.
These kinds of misogynistic comments and mindset affect the judgements by subtly blaming the victim and in effect reducing the sentence the accused would otherwise be awarded.
A lot of times, compromises between the accused and victim are encouraged to reach a solution without a trial. This seems acceptable in petty offences especially because of the large pendency of cases in Indian trial courts. Offences can be categorised into compoundable and non-compoundable offences. Compoundable offences are those offences on commission of which a compromise can be reached between the victim and accused. In that case, charges are dropped against the accused and the victim generally receives some kind of property or any other kind of consideration for the same. The Code of Criminal Procedure, 1973 enumerates in Section 320, the offences which are compoundable and offences that can be made compoundable with the permission of the court.
In the case of B.S. Joshi v. The State of Haryana (2003), the Court relied on the judgment of Surindra Nath Mohanty v. State of Orissa 1999 and declared that a non-compoundable offence cannot be compounded in any case, even with the permission of the Court. Thus rape, which is not a compoundable offence, cannot be compounded under any circumstance. In a case of rape, the opposing parties cannot bargain and make out-of-court settlements instead of going through the proper procedure of trial and conviction or acquittal as under the criminal justice system.
The Law Commission in its 237th report stated that in case the offence has a serious impact on the security of the state or society at large, in those cases, offences should not be compounded. “The interest of victims of crimes and the societal interest in the conviction of the offender often clash and this makes the job of law-makers more complex. No offence other than that specified in Section 320 can be compounded.”
In the case State of Madhya Pradesh v. Madanlal (2015), the Supreme Court held that in no way compromise can be allowed to happen because it would be extremely dangerous to assume that the victim made out the compromise-free of any external coercion or pressure.
The case of Balwinder Singh v. The State of Punjab, 2014 shows how the pressure of entering into a compromise adversely affects the victims. In that case, the police officers tried to force a compromise between the rapists and the victim. The victim later committed suicide and in her suicide note mentioned the harassment and pressure she faced to enter into a compromise.
Recently, a man was charged with the murder of his wife. The man had raped her before they got married. But the Court released him on bail when he signed an affidavit saying he would marry the victim. Thus, the dangerous consequences of this type of compromise are clearly evident.
A major problem that arises is the way certain provisions of law are interpreted. The varied interpretation results in dilution of penalties and a lot of confusion regarding the matter. A very recent example is the interpretation of what “skin-to-skin” contact meant under Protection of Children from Sexual Offences (POCSO) Act, 2012. Section 7 of the said Act defined sexual assault as physical contact, with sexual intent, with the vagina, penis, anus or breast of the child. The Bombay High Court, in its extremely controversial judgement held that “physical contact” implied “skin-to-skin” contact. The Accused, thus, would not be liable under this section because he groped the victim over her clothing. This interpretation was extremely dangerous as it diluted the ambit of sexual assault, leaving hundreds of victims vulnerable and devoid of adequate protection. The Supreme Court later in November 2021, set aside the Bombay HC order saying that “skin-to-skin” was not necessary to constitute an offence under Section 7.
Uniform sentencing policy : a necessity
In Shankar Kisanrao Khade v. the State of Maharashtra (2013), the Court held that awarding death penalty or commuting it should not be a matter of uncertainty but must be based on a uniform policy. The Court stated that the Law Commission might resolve the issue by framing appropriate laws and guidelines.
In Gopal Singh v. The State of Uttarakhand, (2013) it was held that “just punishment is the collective cry of the society. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence.”
As mentioned before, giving out judgements depends on a case-to-case basis. The Supreme Court observed in Soman v. State of Kerala (2013) that even though punishment to induce deterrence is at the heart of our criminal justice system, it is the weakest part due to the lack of guidelines.
The Supreme Court also held in State of M.P. v. Bablu Natt (2009) that any offence that affects the morale of our society to the core should be severely dealt with.
One of the most significant reports on this issue is the one made by the Committee on Reforms of the Criminal Justice System headed by Justice V.S.Malimath. The Committee was formed to give recommendations to re-haul the existing Indian criminal justice system. Among various other suggestions, the Committee also recommended that a statutory committee should be formed that would lay down guidelines in relation to sentencing offences of the Indian Penal Code.
Thus, even though provisions exist to prevent out of court settlements in cases of rape, they are still allowed in this country. The possible solution to this is to formulate a uniform sentencing policy that would be applicable to all rapists without bias. Strict emphasis should be given on sentencing without taking into account the sexual history of the victim.
A very important addition to uniform sentencing policy in rape cases is the inclusion of marital rape within its ambit. Till today, marital rape is not a crime in India, unless the victim is below 15 years of age. Because rape is an attack on a person’s bodily autonomy, whether the attacker is the victims husband must be considered immaterial. This idea that rape by husband is not rape reflects the archaic notion that marriage is the only thing that women care about. Thus, there is an immediate need of criminalizing marital rape.
A primary question that might arise is whether all rapists might be considered equal. This question arises if we need to take the rehabilitative goal of criminal law under consideration. But the fact is that rape survivors’ life gets altered forever after they undergo that traumatic ordeal. The state will never be able to restore the rape survivor back to where they were before. The only thing that might ease the pain is to see that the rapists are adequately punished. This can be ensured when convicted rapists are mandatorily punished with a set punishment. That punishment can be increased but cannot be decreased under any circumstance. However, exceptions can be made in cases where the rapist’s action was completely beyond their control due to mental illness.
From the above discussion, it is very clear why a uniform unbiased policy for sentencing convicts in cases of rape is required. That should be one of the primary aims of the lawmakers in this government. A long term aim of the government should be to take steps such that victim-blaming completely stops. Only when rape stops becoming a hush-hush topic will actual change be brought.
- Indian Penal Code, 1860
- Code of Criminal Procedure, 1973
- Explained: The laws on rape and sexual crimes
- India court blames ‘promiscuous’ rape survivor
- Courts’ Misogynistic Rules For Rape Survivors — Article 14
- Developing a Uniform Sentencing Policy for Rape with Special Reference to the issue of Compromise
- Madhya Pradesh High Court order directing accused to get Rakhi tied by the victim as a condition for bail set aside by Supreme Court
- As an institution, we have the highest respect for womanhood: CJI SA Bobde says Supreme Court never asked rape accused to marry the victim
- Epidemic of Injustice in Rape Law: Mandatory Sentencing as a Partial Remedy, The
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