Much-needed clarity

The Supreme Court’s categorical ruling that any compromise between victim and perpetrator in a rape case cannot be grounds for awarding a lesser prison term is a timely restatement of a salutary principle in sentencing policy. It is a reminder of the basic principle that punishment must be proportional to the gravity of the offence, and that there is no room for extraneous factors, much less something as invidious as a compromise, invariably arrived at under pressure. Some courts, including the High Courts, have made use of a proviso in the Indian Penal Code concerning rape to hand out jail terms less than the prescribed minimum sentence of seven or 10 years, citing factors such as a compromise between the rape survivor and the convict or accused, the efflux of time, claims that the woman is happily married or, more odiously, that the offender had promised to marry the target of his predatory crime. Thankfully, the amendment to criminal law brought in earlier this year has omitted this proviso to Section 376(2). The Court has done well to rule out compromises, noting that it will only be an additional burden on victims. In the last decade, the Apex Court has repeatedly deprecated the tendency to take judicial note of purported compromises and reduce sentences given by the trial court for rape. In the latest judgment in Shimbhu and Another vs. State of Haryana, Chief Justice P. Sathasivam refers to a 2011 case in which the Supreme Court itself had accepted such a compromise, but wisely rules that such verdicts, which seem to run afoul of sound sentencing principles, ought to be seen only in the light of the peculiar facts of those cases and not cited as precedents. He also strikes a note of caution to subordinate courts against any casual or cavalier use of judicial discretion to reduce the quantum of punishment. After all, as courts have often pointed out, rape is a crime against society and not merely against an individual. The restatement of basic principles, often a necessity in a diverse country, is particularly welcome in the context of the disturbing frequency with which the offence of rape hits the headlines today. What another Bench of the Apex Court noted last month is further cause for concern: 90 per cent of rape cases in the country end in acquittal. It has expanded the scope of a plea for justice on behalf of a gang rape survivor and sought responses from all State governments on the question of rehabilitating such victims. While social conditions vary from State to State, depending on how entrenched feudal and patriarchal tendencies are in a particular milieu, the vulnerability of women seems to be uniformly high.