The trouble with our rape law

On 16 December 2012, a young physiotherapist was raped in Delhi and died due to medical complications a few days later. The brutal crime became an inflexion point in India. Following public outrage and widespread protests, amendments were made to the rape law in 2013, which expanded the scope of the crime. Earlier this year, the Juvenile Justice (Care and Protection of Children) Act came into effect— it allows children aged 16 to 18 years to be tried as adults in cases of heinous offences, and is another ramification of 16 December. Over four decades ago, outrage over judgments on certain rape cases led to a similar demand for amendments in the rape laws in India.

Yet, do stricter rape laws that seek hyper-incarceration of defendants, or maximum sentencing, ensure justice to rape survivor? What lessons can we learn from previous amendments to the rape law?

A new book, ‘Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India’ by Mrinal Satish examines the crime of rape through the unusual, yet significant lens of sentencing. By studying all the documented cases decided by the Supreme Court of India and the 21 High Courts between 1 January 1984 and 31 December 2009—around 800 cases in all over a 25-year period—Satish finds that rape myths (such as the absence of injury indicates that consent during intercourse) and stereotypes (loss of chastity is the primary ‘harm’ that rape causes) abounded in rape sentencing in India.

Satish, an associate professor of law at the National Law University in Delhi argues for a coherent theory of punishment that is based on relevant factors recognized by the Constitution. The current system, despite law reforms and modification of rules of evidence, and its thrust on hyper-incarceration of rape offenders, often re-victimizes the woman. This is because adequate attention has not been paid to reform in sentencing, writes Satish.

Read an excerpt from his book:

“Although the Supreme Court had ruled as early as in 1952 that conviction could be based solely on the testimony of the victim, it felt the need to devise methods to test whether she was reliable. This was in part prompted by Section 155(4) of the Indian Evidence Act which, until its repeal in 2003, permitted the defence in a rape trial to adduce evidence to show that the victim was generally of ‘immoral character’. Such character evidence could be used to infer that her testimony was false. Two controversial decisions of the Supreme Court, Pratap Misra v. State of Orissa and Tukaram v. State of Maharashtra (also known as the Mathura case) exemplify this approach. These cases not only prompted the 1983 amendments to Indian rape law, but in my assessment also explain the methods that the Court subsequently chose in determining the reliability of the testimony of the victim.

In Pratap Misra, the victim, in the words of the Court, was ‘living in a state of concubinage’. The Court termed the victim a concubine since she was in a relationship with a married man, and had subsequently entered into a bigamous marriage with him. The 23-year-old woman, who was 5 months pregnant at the time of the incident, testified that she and her husband had gone to a national park on a pleasure trip, where she was gang raped by the three defendants. As a consequence of the rape, the woman miscarried a few days later. The Court, holding that the victim had consented to intercourse with the three men with the connivance of her husband, acquitted the defendants. It arrived at this conclusion since she did not have injuries on her body, and had only sobbed and not screamed during intercourse. The Court also opined that if intercourse were by force, the foetus would have been immediately aborted and not after a few days.

In Tukaram, the victim Mathura was around 16 years old. She was in a romantic relationship, and medical evidence revealed that she was not a virgin at the time of the incident. Her elder brother filed a FIR with the local police that she had been kidnapped by her boyfriend and his relatives. Hence, the prosecutrix ( the victim), her boyfriend and his relatives were summoned to the police station. At the police station, the prosecutrix was separated from the rest of the group and was allegedly raped by two policemen. The trial court, while acquitting the two men, termed Mathura a ‘shocking liar’ and disbelieved her evidence, stating that ‘[t]here is a world of difference between sexual intercourse and rape’. The High Court overturned the acquittal on appeal. The defendants appealed to the Supreme Court against the High Court’s decision. The Supreme Court acquitted the men primarily because there were no injuries on her body and because the episode had been a ‘peaceful affair’. The Court held that Mathura had probably ‘invented the story’, and that she had had consensual intercourse with the policemen. As in Pratap Misra, the crucial factor in deciding Tukaram seems to have been that the prosecutrix was considered to be of a ‘generally immoral character’, and hence a woman whose testimony could not be trusted.

The timing of these two cases is interesting. They were decided in an era when the Supreme Court was asserting its independence and emerging not only as the most powerful branch of the state, but also the most trusted and the most popular branch. The Court was developing its now-famous ‘public interest litigation’ jurisprudence, recognizing the fundamental rights of the poor and the marginalized sections of society. It had recently delivered judgment in two landmark cases, Maneka Gandhi v. Union of India, where it expanded the right to life guaranteed by the Constitution of India, and Nandini Satpathy v. P. L. Dani, where it expanded the contours of the right against self-incrimination. The Supreme Court’s rape law jurisprudence, however, left much to be desired. The Mathura case appears to have been the proverbial last straw. It shocked civil society and led a group of prominent legal academics to write an open letter to the Chief Justice of India, denouncing the decision of the Court and calling for it to be re-heard. Although the case was not re-heard, the movement led to the overhauling of rape law, with amendments being made to the IPC and the Indian Evidence Act.

In their letter, the academics pointed out to the Chief Justice that he and his colleagues had ‘earned a well-merited place in contemporary Indian history for making preservation of democracy and human rights a principal theme of [their] judicial and extra-judicial utterances’. The academics asserted that the Court had upheld the civil liberties of affluent urban women like Maneka Gandhi and Nandini Satpathy, while at the same time condemning the ‘illiterate, labouring, politically mute Mathuras of India’ to ‘their pre-constitutional fate’. The letter ended by hoping that the Court would surely consider the rights of the disempowered and marginalized rural woman as important as that of the other litigants before it."

Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India, Cambridge University Press, Mrinal Satish, 310 pages, ₹ 699