Court Marshal

What has a woman's reputation got to do with rape, Supreme Court?

A judgement replete with such observations only gives the impression that a survivor ought to be ashamed of being a victim.

 |  Court Marshal  |  3-minute read |   08-07-2015
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The Supreme Court judgment cautioning courts against permitting compromise in rape cases may be timely and well-intentioned, but it is certainly not well worded. The judgment is best read only in news headlines for the message the judges intend to convey as observations aimed at justifying the restatement of law on compromise tend to take the clock back on the perception of sexual violence against women. While restating the law, the SC bench in its judgement last week has unnecessarily tried to justify the diktat against leniency and compromise by stating that a victim with defilement of her "human frame" loses the "purest treasure".

"These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the "purest treasure", is lost," justice Dipak Misra, who wrote the verdict for the bench, observed.

Stressing that any soft approach by courts would fall in the realm of "spectacular error", justice Misra goes on to quote with approval a 2013 Supreme Court judgement (written by himself) where he talks of rape as an offence which ruins "chastity".

The law is clear. Rape is a non-compoundable offence. The accused and victim cannot put an end to a case by entering into a compromise.

True, a reminder from the top court may have been warranted in view of an outrage over a recent Madras High Court order enlarging a rape accused on bail to facilitate a compromise with the victim. The court, however, would have done better by merely restating that law does not sanction out-of-court settlement in such serious cases. Going beyond this by making observations and references to "chastity" etc only amounts to unintentionally promoting the conservative view of rape being violation of the purity of a woman's body - a virtue she is supposed to guard against.

The judgement replete with such observations only gives the impression that a rape victim ought to be ashamed of despite being a victim.

It is absence of consent or force which is relevant and not purity or chastity. Apart from giving the impression that dignity of women was protected on account of sympathy and not mandate of law, the observations are also not in consonance with modern day thinking and law.

The use of words and phrases like chastity, defiling of physical frame, being painted in clay, sullying of reputation - the richest jewel in life, loss of purest treasure, etc while advocating strict approach in rape cases raises several questions.

What if a victim does not have all these so-called virtues? Does it mean that courts should deal leniently with accused in cases where the victim had a bad reputation or had lost the richest jewel?

Could the body of a woman with bad reputation be violated without consent?

Is the object of rape law to preserve virtues in women or to guard them against forced assaults? The answers are obvious, going by the social perception of the crime. There have also been changes in law to make it in tune with the present-day thinking.

Parliament amended the Evidence Act in 2002 to delete clause (4) of Section 155 which allowed an accused to question the character of the victim in his defence. The provision read: "When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character."

The amendment, which came into force on January 1, 2003, also inserted a Proviso to Section 146 to bar questions touching upon the character of a victim during cross-examination in a case of rape or attempt to commit rape.

In the backdrop of changes in law reflecting the change in perception of the society at large, the observations are not worth the paper written on. It is not the sympathetic disposition of judges but the Constitution which guarantees and protects dignity of women.


Gyanant Singh Gyanant Singh @gyanant

The writer is a Supreme Court lawyer.

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