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Compromise in Rape Cases: Whither Constitutional Morality?: Kalpana Kannabiran

March 23, 2011

Guest post by KALPANA KANNABIRAN

The Supreme Court judgement reported in some newspapers on 24 February 2011, legitimizing compromise in rape cases, is cause for serious concern.  For thirty years now human rights groups and women’s groups have fought difficult battles to have rape recognised as a serious offence both in communities and by courts.  Rights advocates have been concerned by the fact that all too often the view of the judiciary converges with the view of the community in seeing women’s sexuality as communally owned property, thus removing any articulation of violence from the crime of rape.

Some years ago, at a workshop of judicial officers, we had one senior officer arguing that if a man found guilty of raping a woman offered to marry her, this offer should be considered as a “mitigating circumstance,” and his sentence reduced to the bare minimum.  That done, since his continuing in jail will be detrimental to his new family life, he should be set at liberty under the provisions of the Probation of Offenders Act.  Fortunately in that gathering, the majority of officers, most of them junior to the officer concerned, felt strongly that this is a gross misapplication of the law.  But the existence of the possibility that a judge might actually rationalize the gross misinterpretation of a law as critical to women as this, has far reaching consequences.

Compromises are not new to rape cases.  Experience and research has shown that ‘compromise’ is most often expressed through the law of evidence where witnesses turn hostile.  This ‘indirect’ expression is in fact part of a community consensus, of which the court is witness, but unable or even unwilling to act upon.  The argument is that victims of rape face an uphill battle securing redress and then social acceptance.  So, while it might be common knowledge that she has been assaulted, this is written over by a compromise that wipes out the violence and ‘restores’ her chastity in the public eye.  Her own trauma at the assault and her experience of violence, humiliation, injury and hurt find no place in the public imagination – she is after all an image to be viewed through a patriarchal, misogynist lens.  The saving grace so far has been that the court has been bound by the law that prohibits compounding of a rape case.  Being a non-compoundable offence, compromise in rape cases has been confined to the dark recesses of court corridors and bargains between community elders, victims’ kin (mostly male), local authorities, and the police, with judges turning the other way for the most part, when witnesses turn hostile.  Blood money changes hands and all is forgotten by all except the victim.  And she does not count anyway.

But the one source of strength for support groups working with victims of rape is the guarantee in the law that the judge cannot, under any circumstances, invoke extraordinary powers to compound a rape case.  Justice prescribed the limits of the law.  But now, in 2011, two judges of the Supreme Court of India, one of them the only woman judge in the highest court of the land, remove this one slim guarantee – not in the spirit of constitutional morality, but in the spirit of “public morality”.  This was a case where three men were found guilty and convicted to ten years rigorous imprisonment and a fine of Rs 1000 each for committing gang rape on a woman.  The case was decided by the Punjab and Haryana High Court. After three and a half years in jail, an application was filed before the Supreme Court “stating that the parties want to finish the dispute, have entered into a compromise, and that the accused may be acquitted as now there is no misunderstanding between them.”

There are other details of course – that all parties concerned had since got married and raised families; that the incident is 14 years old; and that the victim also had two children.  The Supreme Court in all its wisdom knows and acknowledges that rape is a non-compoundable offence.  But given that the parties have entered in a compromise, it reduced the sentence to the time already served and directed the guilty to pay Rs. 50,000 each to the victim within 3 months, failing which it would be recovered as arrears of land revenue and given to the victim.  Ironically, although Punjab and Haryana have not had the best record with respect to the status or freedoms guaranteed to women, there is an inversion that this case brings about, where the high court upholds the constitution through the conviction and sentence, while the apex court falls into the trap of public morality, setting aside any consideration of justice determined within the four corners of the constitution.

When a constitutional court implies that rape is a ‘dispute’ between the contending parties; that conviction need not result in punishment, that blood money is a good substitute; and that rape can be wished away as a misunderstanding  — it means that our struggle of decades to bring justice and a sense of constitutional morality in the public domain especially for women, have been ripped apart by this single judgement.

At a time when we are deliberating on and drafting a new law on sexual assault that will bring to bear a more comprehensive understanding of the offence of rape and its impact at various levels, what recourse do we have before us, given this judgement that violates the letter and spirit of the constitution?

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