Keerthana. B, VIT School of Law, Chennai.
Of all the crimes that could be committed against humanity, the act of rape is considered to be the most heinous. It is the only crime wherein the victim becomes the accused in the eyes of the society. More often than not, the aftermath of rape tends to feel ruthless than the act itself. Such is the society we live in; one which is patriarchal and condescending towards the victim rather than the perpetrator. Almost a decade past the Delhi gang rape case, we still hide behind the veil of customs and conservativeness for our parochial attitudes. This article aims to address the outlook of Indian courts on the offence of rape, which seems to be shockingly blunt.
Sections 375 and 376 of the Indian Penal Code, 1860 deal with the offence of rape and its punishment respectively. It can be seen that rape is mentioned to be a non-bailable, cognizable and non-compoundable offence. However, these terms are put under heavy scrutiny as they do not seem to stand true to their purposes.
Many repulsive incidents come to light while analysing the rationale of the justice system. Among myriads of rape cases, the story of Shivaram Reddy is truly unimaginable. A rape-accused in 12 cases, he has managed to get out on bail within the next few days, during every single one of his court proceedings. For an offence classified as non-bailable, it surely does not seem so. Despite his confession to the investigating police officers, he has not been in prison for longer than 18 months. It is an accepted principle that “Bail is the rule and jail is the exception”. But these many exemptions are equivalent to the perpetrator going unpunished. Though the punishments under the IPC draw their essence from the four main theories of punishment, it weighs more on the reformative theory hoping to make a meaningful and lasting change in the minds of the offenders. The focal point of the punishment is reformation rather than retribution. But no visible reformation could be seen in the offender from the above-mentioned case, even after repeated conviction. Is it the lethargy of the courts? Or the incompetency of public prosecutors and police officers in providing the evidence to the court? Who is to be blamed for this grave miscarriage of justice?
In yet another callous turn of events, we can observe that marriage between the rape victim and the offender is seen a solution in lieu of a prison sentence. As inconceivable as it seems, the Apex court has recommended this measure in the past to protect the supposed chastity of the rape survivor. Former CJI Sharad Bobde was quoted saying “We are not forcing you to marry. Let us know if you will, otherwise you will say we are forcing you to marry her” to the alleged rapist, in one of the recent rape case. Regardless of the fact that whether the offender is forced to marry the victim or not, such a proposal in itself is absurd. In 2015, the Madras High Court granted bail to the rape convict to mediate with the minor survivor, as it saw the case to be “fit for mediation”. In 2014, another rape convict was given interim bail to marry the victim after which he was given regular bail, as they were “married”. Need it be reminded to the courts that the offence of rape is non-compoundable?
In State of Madhya Pradesh v Madan Lal, the bench observed that any liberal approach regarding the dignity and sanctity of a woman and her bodily autonomy cannot be permitted. Such compounding or mediation is sans all legal permissibility. However, due to lack of uniformity and clarity, courts across the country still allow settlements between the offender and the victim. Because in their eyes, non-compounding of the offence can have detrimental effects on the well-being of the victim.
At this juncture, it is pertinent the address the state of the rape survivor as an aftermath of the act. They are shunned and shamed for no fault of theirs, while the offender often enjoys the fresh air of freedom. For ages now, the sacrosanctity of a woman has been associated with her virginity. The only acceptable way for a woman to lose it has to be through lawful marriage. Thus is the stigma that this society has built around its women. Is it truly an impossible task for the men to construe the concept of consent?
Another important issue that needs to be addressed, is the rehabilitation/institutionalized care for the rape victims. Apart from the physical strains, they go through severe mental duress as a result of the act. Many of these women experience Post Traumatic Stress Disorder and tend to have suicidal tendencies. However, these effects can be mitigated if psychological intervention is made within 72 hours of the rape. Sadly, there are no one-stop institutions in India which offer holistic care to the rape survivors. Though hospitals are mandated to provide free first-aid to them, that does not suffice.
Quoting the words of Gandhi, “an eye for an eye will make the whole world blind”, a vigorous punishment for rape will not slow down its rate. Enforcing the existing punishments coupled with an awareness on sex education and proactive judgements might just do the trick. The approach towards rape cases needs to be iron-clad and the offence must be made strictly non-compoundable. The act of rape shall only be punishable by a prison term or a death sentence in rare cases.
Lastly, it is imperative that these issues are spoken about and amplified, leaving behind the stigma. Because, our lives begin to end the day we become silent about things that matter.
0 Comments