Courts or Khaps? How Bias Make Judges ‘Lenient’ in Rape Cases

In rape cases misogynist judicial leniency& illegal compromise often allow the guilty to escape with less punishment.

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Khap Panchayats, notorious for their muderous misogyny and casteism, continue to have a free run. On 4 June, one such extra-judicial body in Haryana, took up the case of a 15 year old woman from Zakopur village. The “elders” sided with the accused, ordering that a “fine” of Rs. 50,000 and five blows with shoes were sufficient to meet the ends of justice.

The victim and her family, indignant at the “justice” meted out, approached the police, who have registered a case and started an investigation.

While this incident drew ire, in the media and on social media sites, a commonly overlooked fact is that our courts also act in the same manner as these khaps, the only difference being that judges are vested with the power and authority of the laws of the land. This makes it worse.

Adequate And Special Reasons ?

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One isn’t talking about that strain of misogyny which leads judges to distrust rape victims and lay down onerous standards for proving that they had not consented to sex. Her injuries don’t prove that she “fought like a wild animal” (to quote a Madhya Pradesh trial court judge), her injuries aren’t that grave to prove that although she had resisted initially, midway through the act she was indeed enjoying sexual intercourse- these are only a couple of examples.

What usually slips under the radar is a demonstration of misogyny-laced leniency, the accused to enter into a “compromise” with the victim and thereby walk away scot free, or with an abysmally low sentence.

The most common trend is - the accused tells the court that now he and the victim are “happily married” and have buried their “differences”, so both the conviction and sentence should be set aside. The Delhi High Court’s Justice Sunita Gupta, in a 2013 ruling refused to entertain such a plea. It was not only illegal, but also unconscionable, she said. Because under Indian law rape is a “non-compoundable offence” - that is, which parties cannot settle between themselves once the prosecution has started and the case has gone to court.

Moreover, in rape cases, when the odds- and they are just too many, are always stacked against the victims, how can one presume that the woman’s consent to the “compromise” is entirely voluntary? Even if they were married, it could well be the case that the accused extracted consent by force, or the victim was compelled by her circumstances.

In rural and semi-urban areas, things get worse, what with the pressure being exerted by panchayats, or other groups of village and family elders, and where women have much restricted access to opportunities for justice and livelihood. In most of these compromised cases, the victims are from very humble, or impoverished financial and social backgrounds.

Illegal And Unjust

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This, unfortunately, has led some judges to inflict both indignity and injustice upon them. The worst was perhaps done by a bench of Justices Markandey Katju and Gyan Sudha Mishra in the Baldev Singh case (2011). The man, convicted, was allowed to get away without even marrying the victim (not that the bonds of matrimony washes away the stains of the crime) by paying fifty thousand rupees. The judges held that the victim, who was living in abject poverty and had two children to look after, needed money more than justice for the crime she suffered. The judges took advantage of Section 376(2)(g) of the Indian Penal Code which allowed levying a sentence lower than the minimum one (of ten years) if there were “adequate and special reasons”. In 1996, the Supreme Court held that this term must be interpreted strictly; otherwise the travesty of injustice would be irreparable. This did not weigh on the minds of the judges. In fact, Justice Katju, defended the ruling in a blog post, and one of his grounds were that he was accompanied by a woman judge, so he couldn’t be accused of sexism or insensitivity.

This led to such a furore that subsequently, the then Chief Justice constituted a larger bench, which ruled that all such compromises were illegal.

But things haven’t changed, though the law has. The Criminal Law Amendment Act, 2013 did away with the provision for allowing reduction of sentences. On 26 February this year, a Supreme Court bench, in total contravention of the law, ruled in favour of a man convicted of a gangrape. The judges ruled that the case was twenty years old, the victim had already married someone else, and hence pursuing the case would detrimentally affect her marital relations. The judges didn’t even care to acknowledge that the Supreme Court had clearly held that the Baldev Singh decision was bad law.

Even assuming that the victim goes for a review petition, it will be dismissed in all likelihood, as most such petitions are, since judges are usually loathe to admit their errors.

Perhaps, the present CJI would follow one of his predecessors and set up a larger bench to reaffirm the judicial indictment against illegal compromises. If he doesn’t, there are surely going to be more cases where judges themselves run justice to the ground.

(Saurav Datta teaches media law and policy in Mumbai and Pune. On twitter: @SauravDatta29)