Crime and compromise

It is a matter of considerable satisfaction that within days of the Madras High Court passing an indefensible order asking the perpetrator and the victim in a rape case to opt for mediation, the Supreme Court has restated strongly that rape is an offence that does not brook any compromise. The latest ruling is a rebuke to appellate court judges who casually overturn convictions or reduce the prison terms of those found guilty of rape, often by citing claims that a compromise has been arrived at. With this ruling, the Supreme Court makes it amply clear that offers of marriage or forms of financial compromise cannot be applied in a rape case. It also denies the parents of a minor girl the right to arrive at a compromise with the rapist. By reiterating sharply that any thought of mediation in a rape case is “completely sans legal permissibility”, the court has gone a long way towards ensuring that the lower ranks of the judiciary have absolutely no reason to take recourse to such a “subterfuge”. The Supreme Court ruling was made in an appeal where the Madhya Pradesh High Court had converted a case of attempted rape on a seven-year-old girl into one of attempt to “outrage the modesty of a woman”, and had reduced the sentence from five years to the period spent by the convict in prison. A recent judgment from the Madras High Court that had allowed a convicted rapist to be freed on bail to work towards a mediated solution with the survivor had shocked civil society and attracted severe criticism. The Supreme Court judgment is, thus, timely and essential.

A matter of graver concern, however, is the fact that the Supreme Court is so often being required to restate the basic principles of justice. It was only in 2013 that it categorically ruled that there can be no compromise in a rape case. In several cases in the past, the apex court has deprecated the tendency of some judicial officers to take into account purported compromises and award lenient sentences on that basis. Also, when it comes to sentencing policy, it should be remembered that as part of the amendments to criminal law made in 2013, a proviso in Section 376 of IPC (punishment for rape) that allowed judges to award lesser prison terms than what are set down, on ‘special grounds’, has been omitted. Judges are not allowed to consider offers of marriage, the passage of time, or the state of a woman being “happily married” as factors justifying a soft approach towards perpetrators of rape. That despite the Supreme Court’s repeated directions not all lower courts see the irreparable harm done to rape survivors by subjecting them to mediated solutions is disquieting. It is also an indication of how deeply patriarchy is embedded in our judicial system.

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