This guest post has been contributed by Mrinal Satish, JSD candidate at the Yale Law School. Mr Satish has taught criminal law and procedure for several years and is working on a thesis examining sentencing policy in India. He can be reached at [email protected]

“Court frees Rapists, Agrees they can pay Victim” bemoaned headlines on February 24, 2011. The judgment of the Supreme Court in Baldev Singh v. State of Punjab led to discussions as to whether the Court was right in what it did. The headline though was not exactly accurate. The Court did not really “free” the three rapists, but reduced their sentence to the period undergone (three and a half years). Though the minimum sentence for gang rape is 10 years, it used its discretion to impose less than the minimum. It also enhanced the fine imposed on each of the defendants to Rs.50,000 from Rs. 1000. It asked them to deposit the amount within 3 months, failing which the amount was to be recovered from them as arrears of land revenue. Was the sentence justified? I don’t think so.

S. 376(2)(g) of the Indian Penal Code deals with gang rape. On the issue of sentence, it provides a minimum punishment of 10 years imprisonment and a maximum of life. A court has the discretion to impose less than the minimum sentence if it finds “adequate and special reasons” for so doing. Enhanced sentences were introduced by amendment in 1983, whereby the Legislature indicated that it considers aggravated rape (including gang rape) deserving of higher punishment. It is also pertinent to note at this stage that in earlier cases the Supreme Court has ruled that the term “adequate and special reasons” ought to be strictly interpreted. (See for instance: State of Andhra Pradesh v. Bodem Sundara Rao, AIR 1996 SC 530).

In Baldev Singh, the Supreme Court used the “adequate and special reason” exception to impose a less than minimum sentence. What were the adequate and special reasons cited? First, that the incident was an old one and had taken place 14 years prior to its judgment and secondly, that the parties had entered into a compromise. It also mentioned that persons accused of rape and the victim were now married (albeit not to each other) and that the victim had two children. Further, the parties had reached a compromise stating that they wanted to “finish the dispute” and that there was no “misunderstanding between them.”

Let us look at the reasons expressly considered by the Court in reducing the sentence. Should delay in judicial proceedings be considered as a factor for reducing sentences? I believe that it should not for two reasons. First, our judicial process is not known for its timeliness. Delay in proceedings is a common occurrence and hence ought not to be considered as a mitigating factor. Second and more importantly, the victim does not have control over the judicial process and delays therein, even though the accused might. If she did, one could justify reducing the sentence. As the system presently operates, it is patently unfair to the victim and is an incentive to the accused to delay proceedings.

Further, can a “compromise” between the victim and the accused persons be considered a factor in reduction of sentence? As the Court notes in the judgment, S. 376(2)(g) is not a compoundable offence and parties cannot withdraw or compromise the case, even with the permission of the court. Most crimes (including the present one) are considered as crimes against the entire society, which is why the State prosecutes the crime on behalf of the victim and society. If we let victims compromise their cases, when the law does not permit, we end up undermining the entire system. It could also lead to situations where victims are coerced into agreeing to a compromise. If we as a society want to change this position, it is for the Legislature to amend the law. Does it intend to do so? When plea bargaining was introduced in India a few years ago, the Legislature expressly exempted crimes against women from being subject to a plea bargain, because of the often unequal bargaining power of the parties involved, as well as the expressive importance of prosecuting such crimes. This to me indicates that the Legislature did not want to permit “compromises” where victims of crime are women. The Supreme Court in this has hence acted contrary to express legislative mandate. Unfortunately, this now constitutes precedent and before it leads to trading in sentences, one hopes that the Court corrects this anomaly at the earliest.

This case also reflects the state of sentencing in rape in India. I have been studying this issue and I find that determination of sentences based on patriarchal notions of shame, value, honour and chastity of the victim is a prevalent practice. Recently, the Supreme Court reaffirmed its underlying assumptions in rape adjudication when it said: “The important thing that the court has to bear in mind is that what is lost by a rape victim is face. The victim loses value as a person” [State of U.P. v. Chhotey Lal, (2011) 2 SCC 550]. The Court has also frequently said that rape leads to “deathless shame.” Questions of value and shame are determined by a victim’s chastity and her “marriage-ability.” Thus, past sexual conduct (even after the repeal of Section 155(4), Indian Evidence Act) or subsequent marriage of the victim, have significant impact in reduction of sentences. This is also where compensating the victim for this “loss of value” in return for reduced sentences for the accused comes into play. Courts have in the past awarded compensation and used that as a factor for reducing custodial sentences. Baldev Singh’s mention of the current marital status of the victim and the accused, and of the fact that the victim now had children from her marriage, is therefore consistent with the past practice of Indian courts and of the use of sentencing as a site for perpetuation of stereotypes.