Recently, a comment made by the ex-Chief of Justice of India, S.A. Bobde, in the case of Mohit Subash Chavan v. State of Maharashtra was met with consternation after he reportedly asked the accused, a government servant, whether he would be willing to marry the victim, a minor, after she was raped. The Indian Supreme Court has constantly reiterated that lower courts should not grant bail after initiating marriage in rape cases. Even the Attorney General of India, K.K.Venugopal, termed the Madhya Pradesh High Court's judgment as a “drama”, wherein the accused was granted bail on the condition that the victim tied a “rakhi” (a thread denoting a brother-sister relationship) on him. In this piece, the author demonstrates the status quo of “compromise” in rape cases in India and how the human rights of these women were grossly violated.
Data put forth by the National Crime Record Bureau showed that an average of 191 rape cases were compromised every year since 2014. The Crime India 2019 report highlights the need for gender awareness and also the abysmal percentage of the conviction rate in rape cases as low as 27.8%. It also raised that approximately 15000 cases involving crimes against women are getting compromised.
MEANING OF COMPROMISE AND THE RELEVANT LAWS
Rape is an unlawful sexual assault that generally involves sexual intercourse or forms of penetration carried out against a woman forcibly without their consent. The Indian Penal Code, 1860 includes Section 375, which contains the definition of rape, while Section 376 lays down the punishment for the latter.
Compoundable offences can be compromised, where the complainant can agree to drop the charges against the accused, whereas non - compoundable offences are more serious offences. Rape is a non-compoundable offence due to its gravity, as enshrined under section 320 of the Code of Criminal Procedure 1973. This lays down a set of offences that can be compounded, and under section 320(9), offences not mentioned cannot be compounded. Since rape has not been listed under the section, it is clearly not compoundable. Even though the High Court has inherent powers to make orders to safeguard justice under section 482 of the Code of Criminal Procedure, 1973, the landmark judgment of Gian Singh v. State of Punjab & Others, stated that grave offences like rape could not be quashed by the court even if it was compromised between the victim and the offender.
Compromise is an agreement or the process of settling disputes between two or more opposing parties who each give some ground rather than continuing the dispute or going to trial. In rape trials, the most common form of compromise is the "subsequent marriage" of the rapist and the victim.
Even though the statute lays down that compromise cannot be resorted to in rape, the lower courts have inherently exercised their powers under section 482 of the Code of Criminal Procedure Code, 1973 to quash the proceedings against the perpetrator when he agrees to marry the victim. The Apex Court has always looked down upon this cavalier attitude of the lower courts. It has been established in a plethora of judgments like the State of M.P v. Madanlal that compromise must never be brought into the picture while dealing with rape.
PREVAILING VIEWS AND THE WAY FORWARD
This barbaric view still prevails in the Indian landscape due to factors that trace its origins back to a pestilence that pervaded the society: patriarchal norms. Many among the Indian populace still consider that a woman who is raped has been polluted and that sealing her fate by forcing her to be associated for a lifetime with the delinquent will fulfil her destiny of "tying the knot".
There is some evidence to suggest that judges approach rape cases reflecting this antiquated viewpoint. Another crucial reason for adopting this approach stems from the belief that women need protection and that an unwanted pregnancy resulting from rape would reduce their life to shambles. To safeguard the female's honour and dignity, the victim's parents end up falling prey to compromise to save their social status. Thus, the victims end up withdrawing the complaint after turning hostile.
Solemnising rape through marriage leads to repercussions such marital rape and violence after marriage, considering that marital rape is not a crime under Indian law. It also enables accused rapists to escape justice. Subjecting the victim for further mental trauma shows the jarring miscarriage of justice by the Indian Courts.
Rape is not an offence against the person alone, but it is against society (in legal terms the victim gets a right in rem), which will entail the state to take necessary measures to fend the victim and ameliorate them. The judges must take a victim-sensitive approach and not pronounce verdicts that could infringe upon the victim’s rights while being under the influence of various cultural or gender biases that could seriously jeopardise the credibility of the judiciary. Stringent precedents must be laid down by the judiciary by enforcing the true nature of Section 375 along with section 320 (9) that clearly does not place rape under the category of compoundable offences. In a country like India where religious practices are centered around deities who are women, it must recognise the strength of this gender and take all measures to show unwavering respect to uphold their mental as well as bodily integrity, rather than treating them as mere chattels of men.
Dhanshitha Ravi is a first-year Law student in Symbiosis Law School, Pune who has an eye for detail and is a keen researcher who seeks to uncover some pertinent issues to be brought to the attention of the community for better awareness.
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