Ed Note – As part of our New Scholarship Section, we have been inviting discussants to respond to specific articles. This is part of a series of posts discussing the public law themed research articles featured in Issue 2 of the 2020 Volume of the Indian Law Review. You can access all the posts in this discussion here. In this piece, Preeti Pratishruti Dash  introduces the arguments she makes in her research article titled “Rape adjudication in India in the aftermath of Criminal Law Amendment Act, 2013: findings from trial courts of Delhi” that has been published in Issue 2 of the 2020 Volume of the Indian Law Review.

In my paper, ‘Rape adjudication in India in the aftermath of Criminal Law Amendment Act, 2013: findings from trial courts of Delhi’, as the title suggests, I assess the impact of the Criminal Law Amendment Act, 2013 (CLA-2013) on rape adjudication. Despite the overtly carceral turn taken by India after the infamous gangrape and murder in Delhi in 2012, very few attempts have been made to study the efficacy of these punitive laws. My paper is an attempt to fill this gap in academic literature.

I studied a total of 1635 cases, of which 726 cases were adjudicated under the old law of rape, and 909 cases under the CLA-2013. I collected this data through keyword searches on indiankanoon.org as well as the official websites of the trial courts of Delhi. The searches produced about 10,000 results per year, starting from 2013, and I filtered the relevant cases through a preliminary reading of the judgments. Over a period of five to six months, I collated a total of 1635 judgements, between 2013 and 2018. Most judgments pronounced till 2014 were adjudicated under the older law of rape and therefore, the data-set gave me the opportunity to comparatively analyse rape adjudication under both legislations. Although not exhaustive, the data, nonetheless, give a fair approximation of patterns and trends of rape adjudication in Delhi, both prior to, and after the enactment of, the CLA-2013.

The first part of my paper focuses on how the rate of conviction for rape reduced notably after the enactment of the CLA-2013. Drawing from literature on mandatory minimum punishment, I argue that this reduction can be traced to the juxtaposition of the expanded definition of rape with mandatory minimum punishment. In the second part of my paper, I study the nature of cases adjudicated under both laws, treatment of women’s testimonies as well as adjudication of non-peno-vaginal rapes to demonstrate how legal reform did not translate into institutional reform. Based on this data, I argue that engagement with the Verma Committee to enact a punitive law ushered a new era of ‘governance feminism’ in India, similar to that of the USA. I conclude by emphasising the need to move beyond using criminal law as a site for feminist reform.

I.Mandatory minimum punishments and Judicial decision-making

Analysing my data-set of 1635 cases, I found that the average rate of conviction under the old law of rape across the six years was 16.11% (117 cases) and under the CLA-2013, this fell to 5.72%, i.e., a mere 52 cases.

Year-wise conviction and acquittal rates under both laws are as follows:

Existing literature on criminal law and sentencing has consistently found that the removal of judicial discretion for an offence results in a fall in conviction rate, as it comes into conflict with individualised sentencing.[1] Similar other studies on mandatory minimum terms[2] and jury behaviour[3] show how decision-makers in the criminal justice system often acquit in cases when they feel that the punishment was too harsh for the offence. Kristina Scurry Baehr, examining data from 10 years of mandatory minimum sentencing in sexual violence in South Africa, found that it led to more inconsistent sentencing across different sexual crimes.^[4] In cases of custodial rapes in India, it was found that introducing severe sentences actually resulted in fewer convictions and no increase in the number of complaints, given existing constraints of the system.^[5]

Feminist groups who demanded the introduction of mandatory minimum punishment for rape in their submissions to the J.S. Verma Committee presumably aimed to remove rape myths and stereotypes from the adjudication process that judges often invoked to impose less than seven years’ punishment.^[6] Yet, this amplifies the unintended consequences of the CLA-2013. Given that other factors around a case, such as lawyering and investigation, remain the same, the major change confronting judges was the removal of their own discretion to impose lesser punishment. It is therefore, unlikely that the judges who invoked sexist stereotypes to impose lesser punishment under the older law would now consider all rapes as severe enough to warrant a minimum of seven years’ imprisonment, possibly leading to higher acquittals. While a causation cannot be established between the two factors given the lack of statistical analysis, a correlation between the two cannot be ruled out.

II.Legal Reform without Institutional or Social Reform

In order to study the impact of the CLA-2013 more broadly, I examined the nature of cases being decided under both the laws and found that the CLA-2013 did not bring about major shifts in the nature of cases being adjudicated.

Among the types of cases being adjudicated, two categories which stood out were ‘breach of promise to marry cases’ and ‘runaway marriages.’ Comprising around one-fourth of the total rapes under both laws, i.e., 23.5% under the old law and 28.4% under the CLA-2013, breach of promise to marry cases reflect patriarchal notions of marriage as the only legitimate site for sexual expression.[7] Women use criminal law to secure their reputation in a society that places a high value on virginity.[8] When the man subsequently agrees to marry them, the women withdraw the complaint. Similarly, runaway marriage cases exemplify patriarchal control over women’s sexuality with parents using criminal law as a tool to ‘recover’ a daughter who has entered into a relationship considered illicit for breaking norms of caste or class endogamy.[9] The CLA-2013 did little to change these avenues for the suppression of women’s autonomy.

Moreover, expanding the definition of rape to penalise non-peno-vaginal rapes, hardly increased their seriousness in the system, as there were only 39 such cases (4.29%) of the 909 rapes adjudicated under the CLA-2013. More disappointingly, only four of these 39 cases resulted in convictions, and a majority of the cases involved non-peno-vaginal assault being treated as ancillary to the peno-vaginal assault, which was routinely considered to be ‘more heinous.’

This data shows that rape laws in India are used in extremely complex ways and mere legal reform, unaccompanied by social or institutional reform, yields counter-feminist outcomes.

III. Governance Feminism and Unintended Consequences of Feminist Law Reform

The CLA-2013 was in many ways a product of feminist engagement with the state, through submissions and recommendations of the J.S. Verma Committee. Yet, as data indicate, the adjudication of rape cases under the CLA-2013 has been far from feminist ideals, prompting concerns about unintended consequences. In her work on governance feminism, Janet Halley observes that feminist engagement with institutions of power has resulted in significant achievements for women across spheres of social and economic life.[10] Governance feminists, she argues, “have in some cases been highly successful in changing laws, institutions and practices, very often, remarkably, for the better”.^[11] Yet, some initiatives have produced harmful unintended consequences that need to be addressed.

In the Indian context, feminist engagement with the Verma Committee, resulting in the CLA-2013, is a case in point. In a bid to rid rape law of sexist prejudices, feminist groups endorsed broad generalizations and mandatory minimum punishments, revealing a failure to capture a nuanced understanding of punishment and sentencing. This also resulted in the perverse consequence of a lower conviction rate for rape.

Further, feminist engagement with the Verma Committee failed to reckon with the disparate impact of the criminal justice system on the poor.^[12] Critiques of carceral feminism in the American context have opposed the use of law in a way that is blind to the targeting, policing and criminalizing of disenfranchised populations, thereby adversely affecting the families of lives of women in these communities.^[13]  In India too, legal institutions have argued to have created and contributed to the subordination of women.^[14] However, feminist groups in India have continued to rely on criminal law, unmindful of these debates.

The failure of the CLA-2013 in realizing a feminist dream raises questions about using criminal law as a site for feminist reform. Such unintended consequences not only reinforce the need to challenge the increasingly punitive approach to sexual violence adopted by the state, but also serve as an important checkpoint for a re-assessment of feminist goals in this area.

[1] Andrew Ashworth, Sentencing And Criminal Justice  (Cambridge University Press 2012).

[2] Michael Tonry, ‘Mandatory Minimum Penalties and the U.S. Sentencing Commission’s “Mandatory Guidelines”’ [1991] 4(3) Federal Sentencing Reporter 129.

[3] Andrew D. Leipold, ‘Rethinking Jury Nullification’[1996], 82(2) Virginia Law Revie 253; William Stuntz, ‘The Pathological Politics of Criminal Law’ [2001] 100 Michigan Law Review 505.

^[4] Kristina Scurry Baehr, ‘Mandatory Minimum Making Minimal Difference: Ten Years of Sentencing Sex Offenders in South Africa’,  [2008] 20 Yale Journal of Law and Feminism  213.

^[5] People’s  Union  for  Democratic  Rights,  ‘Custodial  Rape:  A  Report  on  the  Aftermath’  (1994)

<http://pldindia.org/wp-content/uploads/2013/03/PUDR-report-on-custodial-rape.pdf >; Laxmi Murthy, ‘Criminal Law Amendment Act, 2000’ (8 September 2006) <http://pldindia.org/wp-content/uploads/2013/04/Comments-by-Laxmi-Murthy-to-Criminal-Law-Amendment-Bill-2000.pdf>.

^[6] Mrinal Satish, Discretion, Discrimination And The Rule Of Law: Reforming Rape Sentencing In India, (Cambridge 2017) 80-90.

[7] Arushi Garg, ‘Consent, Conjugality and Crime: Hegemonic Constructions of Rape Laws in India’ 20(10) Social and Legal Studies (2018) 1.

[8]Monica Sakhrani, ‘Reading Rape post- Mathura’, 23(2) Ind. Journal of Gender Studies (2016) 260; Arushi Garg, ibid.

[9] Pratiksha Baxi, Public Secrets Of Law: Rape Trials In India (Oxford, 2013) 235–268.

[10] Janet Halley, ‘Preface: Introducing Governance Feminism’ in Janet Halley and ors. Governance Feminism: An Introduction, (Minnesota 2018).

^[11] ibid.

^[12] National Crime Records Bureau, Prison Statistics India (2016); Anup Surendranath et.al., Death Penalty India Report (National Law University Delhi 2016).

^[13] Aya Gruber, ‘Rape, Feminism and the War on Crime’, 84(4) Washington Law Review (2009) 581; Elizabeth Bernstein, ‘Carceral Politics as Gender Justice?: The “Traffic in Women” and Neoliberal Circuits of Crime, Sex, and Rights’ in The War On Sex (David M. Haplerin and Trevor Hoppe eds. Duke 2017).

^[14] Brenda Cossman And Ratna Kapur, Subversive Sites: Feminist Engagement With Law In India (Sage 1996).