Believe it or not, a woman is raped every 20 minutes in India. This is according to the National Crime Records Bureau. And, with the rise in number of rape cases across the country and the growing consciousness among people regarding the same, the Supreme Court has recently set a precedent in a bid to curb the menace.
In a landmark judgment, the apex court has ruled that a compromise between an accused and the rape victim cannot be a ground for reduction of sentence under the proviso to Section 376(2) of the Indian Penal Code (IPC).
The judgment was delivered by a three judge bench comprising Chief Justice P. Sathasivam along with Justices Ranjan Gogoi and Ranjana Prakash Desai in an appeal (Shimbu and Anr. v. State of Haryana, Crl. (A) 1278-1279/2013) filed against the decision of the Punjab and Haryana High Court. The judgment was delivered in the wake of an appeal from rape convicts.
In fact, advocate Rishi Malhotra, who represented the appellants, prayed for a reduction of sentence to the period of imprisonment already undergone on the ground that a settlement was arrived at between the accused and the victim, and that it was a fit case for the Court to exercise its discretion under proviso to Section 376(2) and reduce the sentence.
However, relying on a catena of previous decisions, the Supreme Court held that: “A compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurized by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. So, in the interest of justice and to avoid unnecessary pressure/ harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) of IPC.”
Regarding the issue of “special factors” to be taken into account, the Court also summarised the law to the effect that the “punishment should always be proportionate/commensurate to the gravity of offence. Religion, race, caste, economic or social status of the accused or victim or the long pendency of the criminal trial or offer of the rapist to marry the victim or the victim is married and settled in life cannot be construed as special factors for reducing the sentence prescribed by the statute. The power under the proviso should not be used indiscriminately in a routine, casual and cavalier manner for the reason that an exception clause requires strict interpretation”.
The apex court also cautioned the subordinate courts and high courts not to take a lenient view while awarding sentence for heinous crimes like rape, and stressed upon the need for “proportionate punishment to be imposed in such cases”.
In a patriarchal society like India, rape has always been a taboo and never a real issue to be discussed on a public platform. After the Delhi gangrape case in December last year, attempts were made to raise people’s consciousness about the plight of the victim and the justice that is often delayed on “frivolous grounds”.
The quest for justice is often marred by questions around the victim’s marriage or the lack of it that she may have to suffer due to the trauma undergone. “Who will marry her?” is the question that is of most concern in maximum cases instead of justice, if the victim is unmarried. They are seen as outcast, a burden on the family and therefore, if the rapist comes forward to marry their victim, most of the times legal justice and punishment is the last thing on anybody’s mind.
Gram panchayats (village bodies) are often seen as pressurising the victim to marry her rapist as a form of justice, irrespective of whether she is ready to marry the person who violated her or not. Insensitivity and ignorance have marked these irrational and inhuman judgments. However, the courts also have made such rulings lately.
In January 2012, a Delhi court held that as punishment, the rape accused would give 100 blankets to street dwellers as he had offered to marry the victim. In 2011, the Delhi High Court granted interim bail to the accused to get married to the victim. Same year, an army major, accused of rape, was acquitted after he married the victim. This made escaping punishment easier for the accused and an easy way out.
But the Supreme Court has been leading by example for a long time now. Recently, while directing the Madhya Pradesh government to pay Rs10 lakhs as compensation to two gangrape victims, the apex court had come down upon the government for disclosing the names of the victims in its affidavit.
Hailing the recent order, former IPS officer turned- civil society activist Kiran Bedi said: “The mindset of rapists is that everything will be fine if they make marriage proposal to the victim. With the Supreme Court giving a concrete order in this regard now, rapists will have to face the law for sure and cannot escape punishment for ruining a woman’s life.”
Delhi-based lawyer Jyotsna Parasher added: “There’s nothing in the law which stopped the accused from proposing marriage to the rape victim. Hence, such applications were moved in courts. The result was that in many such cases, the criminals used to walk free, making a mockery of the criminal justice system. But, not any more.”
The apex court’s judgment has come at the time when conviction in rape cases lacks due to compromise between the parties, despite the fact that it might create additional burden on the victim. It is also a reminder of the basic principle that punishment must be proportional to the gravity of the offence, and that there is no room for extraneous factors, much less something as invidious as a compromise, invariably arrived at under pressure.
As the Court itself has pointed out, rape is a crime not against an individual but the whole society. But as another bench of the Supreme Court noted last month, almost 90 per cent of rape cases in the country end in acquittal. While the factors for such a condition may differ from state to state, compromise is often the reason behind such acquittals, in the end serving as an encouragement, and not a deterrent, to the accused to attempt similar acts in future.
The present judgment can be hailed for it comes with hope that rape accused will no longer be shielded and will stand trial, that no mockery of the law will be made and victims, if not protected, can be given justice and a respectable future.
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