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A Delhi High Court order reduces the sentence of a person convicted of rape because he cleared the civil services examination.
AN order of a Division Bench of the Delhi High Court on February 9 reducing the sentence of a person convicted of rape because he had cleared the civil services examination has generated a controversy. The court set aside the conviction for the offences punishable under Section 306 of the Indian Penal Code (for abetment to *******) while sustaining the conviction on offences punishable under 376 IPC (for rape).
The order said: “Considering the totality of the circumstances and noting that the appellant has suffered incarceration for five years and six months and would be entitled to remissions on account of his good conduct in jail, noting further that the appellant has redeemed himself in jail evidenced by the fact that he took the civil services examinations and qualified for being appointed to the Indian Administrative Services [IAS], we are of the opinion that custodial sentence already suffered by the appellant would meet the ends of justice as a requisite punishment.” The appellant was ordered to be set free.
The court exonerated him from the charges of abetment to ******* because there was evidence of some “participative act” by the victim. The court held that there was no evidence that the appellant had forced himself on the girl or that he had compelled her to have *** with another person.
“Instead of focussing on the gravity and heinousness of the crime involved, sections within the judiciary have found it more relevant to reflect on the moral character of the victim, her alleged promiscuity as well as the social and economic background of the perpetrators,” said an activist.
More than a hundred concerned citizens and also women’s organisations have written to the Chief Justice of the Delhi High Court to review the order. The signatories have said that “merely qualifying for the IAS cannot be a ground for reduction of sentence in a crime as heinous as rape…. The stated reason is in fact a class-bias towards educated persons.”
The incident happened in April 2003. She was 21. The accused, Ashok Kumar Rai, also known as Amit, 29, was her chemistry tutor. The girl committed ******* by consuming sulfa tablets. Detailing in a note the reasons why she took the extreme measure, she wrote: “He enticed me with a promise of marriage…. I was so trapped by him that neither was I in a position to do anything against him or tell anyone else of the same.”
She added that he had threatened to defame her and compelled her to “submit my body before another person as he had to seek some favour from that person.... I am harassed by his atrocities.... He has ruined me… has not left me in a position to show my face to society…. Therefore, being harassed by the atrocities of Amit and to save myself from being defamed, I am committing *******. It is only Amit who is responsible for my death.”
The trial court held Amit guilty on two counts, abetment to ******* and rape. He was sentenced to life and ordered to pay a fine of Rs.5,000. The matter went on appeal to the Delhi High Court.
“All of us feel that it sets a very retrograde precedent. Lower courts will definitely take a cue from these kinds of judgments that focus more on the character of the victim rather than the nature of the crime itself. It also raises several issues including that of legal reform,” said Sudha Sundararaman, general secretary of the All India Democratic Women’s Association.
Significantly, excerpts from the order clearly show that the judges had considered the exploitative nature of the relationship. Yet this was not factored in while reducing the sentence for rape.
The order observed that “a perusal of the ******* note showed that [the victim] was lured to the house of the appellant on the pretext of helping her with extra classes. She was coaxed into friendship and something more. Obviously, the more has to be a promise of a matrimonial bond. She was given a stupefying drug and under influence thereof indulged in a promiscuous relationship…. The ******* note establishes that the intention of the appellant was to use the unfortunate girl and never marry her…. The proposed matrimonial bond was nothing but a bait to obtain [her] consent to have a physical relationship with the appellant.” The order noted that the victim, at the age of 21, was mature enough to understand the “moral worth of her acts”, while hardly commenting on the responsibility of the 29-year-old man.
Supreme Court lawyer Kirti Singh said it was clear that the accused was awarded life imprisonment after the girl committed *******. The punishment for rape was increased, she said, after a concerted struggle by women’s organisations. “In this case, they have taken a very technical view of abetment of *******, reducing it to a mockery by holding that there was no evidence that the accused gave the sulfa tablets to the deceased,” she said. “After holding him guilty of rape, it is unexplainable as to how the case can be dissected apart and an order passed not holding the man guilty of the charge.”
Kirti Singh said that to treat rape like some instance of indiscipline where a person can “redeem” himself by passing an examination was tantamount to trivialising the heinousness of the crime itself. Other women activists such as Jyotsna Chatterji of the Joint Women’s Programme and Kalpana David of the Young Women’s Christian Association also stressed that rape was rape and that a rapist ought to go through the entire process laid down under the law.
Indu Agnihotri, Senior Fellow at the Centre for Women’s Development Studies, said that never would an instance of abetment of ******* be proved if evidence had to be given that a “rope or poison was actually supplied by a second party to a victim”. What the judges should have noted was the victimisation of the girl as evidenced in the ******* note, she said. “Promiscuous”, “participative act” and so on, she said, were loaded terms which hardly indicated sympathy for the victim.
The activists say that perhaps to indicate that the girl was “habituated to intercourse”, the post-mortem report was quoted as saying that the “vagina of the deceased admitted three fingers comfortably and the hymen showed old healed scars”. The defence counsel too pointed out this in his arguments, and for some reason this happens to be an important factoid in rape cases. “But what was more relevant was whether she was induced into a relationship under the false pretext of marriage and the consequent events that led her to ******* rather than the fact that she was “habituated to ***”.
Kirti Singh said that if the order was not reviewed, then a special leave petition would be filed in the Supreme Court.
One of the major thrusts of campaigns in the 1980s and 1990s for reforms in rape laws was on “redefining of consent”. The campaign that began after the custodial rape of a 16-year-old tribal girl in Maharashtra in 1974 led to the amendment of the Evidence Act to state that if a victim says that she did not consent to the ***ual intercourse, the court shall presume that she did not consent. The policemen who raped the girl were acquitted on the grounds that she was habituated to ***ual intercourse and that she had eloped with her boyfriend and hence had consented to intercourse with the policemen as well.
A crucial demand that arose in the context of the case was that a woman’s history and general character should not be used as evidence in a rape trial. In 1989, however, the Supreme Court reduced the sentence from ten years to five in a custodial rape case.
Women’s organisations and legal activists feel that there is an increasing tendency in the judiciary to display gender and class biases in judgments. On February 27, a metropolitan magistrate in a city court held that an adulterous wife could not seek relief against her husband under the Protection of Women from Domestic Violence Act (PWDVA). The magistrate held that “the PWDVA was enacted to provide speedy and expedient remedy to protect hapless victims of pervasive acts of violence occurring within the family and not to give the woman complete immunity from getting away from any kind of a misdeed…. To enjoy the benefits of the provision, the lady must come to court with clean hands, as she should not be guilty of adultery.”
The onus of morality and the upkeep of the moral order, sadly, continue to be the responsibility of women alone, with the definition of morality rooted in notions of chastity, purity and so on.