Feminists and Rape Law Reform: Wielding Power with Expertise?

[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. We are grateful to Prof. Saptarshi Mandal for accepting our invitation to respond to the paper titled “Rape adjudication in India in the aftermath of Criminal Law Amendment Act, 2013: findings from trial courts of Delhi” by Preeti Pratishruti Dash. The summary of the paper by Ms. Dash can be accessed here.] 

I am thrilled to have this opportunity to engage with Preeti Pratishruti Dash’s timely article assessing the outcomes of the 2013 rape law amendments. There are a number of ways in which the article enriches the current discussion on sexual offences. The foremost being the way it shines the light on the state’s preoccupation with harsh punishment without fixing the broken criminal justice system. The latest round of amendments, enhancing the mandatory minimum punishment and introducing the death penalty for sexual offences, is worrying, not just because it reflects an ever-increasing appetite for retribution as penal policy, but also because it uses the “tough on crime” rhetoric to mask systemic gaps in how sexual crimes are currently investigated and adjudicated. Dash’s article testifies to the latter.

The substantive law of rape underwent large scale changes in 2013, when the scope of the offence was expanded beyond peno-vaginal penetration and a key ingredient like consent was defined, in line with longstanding feminist demands. Dash shows, through her examination of judgments delivered by trial courts in Delhi between 2013 and 2018, that changes in the law did not have the desired effect on how rape was perceived by judges. What is more, she finds that there was a substantial drop in the (already low) rate of conviction under the new law. Dash argues that this was the inevitable result of the removal of judicial discretion in sentencing and setting a high minimum punishment of seven years’ imprisonment for rape.

The findings may be shocking but not surprising. Nor is the argument (substantially) a new one. Both recall Flavia Agnes’ pathbreaking 1992 article assessing the 1983 criminal law amendment, which for the first time introduced a minimum punishment for rape along with allowing judges to depart from it for “adequate and special reasons”. Agnes found High Court judges to exhibit the same sexist attitudes that the amendments were supposed to contain, and to invoke discretion to award less than minimum sentence. Agnes wrote:

When the amendment came about legal experts both within the movement and outside, had expressed their fears that more stringent punishment would result in fewer convictions. The judgments of the post amendment period justify their fears.

Be that as it may, Dash’s article makes distinct contributions to Indian legal scholarship generally, to the scholarship on rape, and to the critique of feminist involvement in rape law reform. I will address each one of these by turns.

Legal scholarship in India, including feminist legal scholarship, has largely been about reading appellate court judgments to uncover the politics underlying judicial prose. This method is not only highly formalistic but also says very little about the legal phenomena being studied, and the criticisms often tend to be superficial and unconvincing. In the aforesaid article by Agnes, for instance, while her examples of lenient sentencing can be read as judges trivializing rape, they do not undisputedly show the improper use of discretion. Surely, it can be argued that the young age of an offender (the situation in Agnes’ examples) is good reason to reduce the period of imprisonment to allow for their reintegration in society? One could cite similar examples from other areas of law as well. Dash’s article stands out for its empirical focus. She looked for the reasons behind the high rate of acquittal by undertaking the cumbersome task of reading through hundreds of trial court judgments and analyzing them for patterns. This is a commendable use of an important resource currently available to researchers, courtesy Indian Kanoon, and we must both congratulate and thank Dash for showing us how things are done. The result of her labours is a complex picture that defies straightforward explanations to the phenomenon of high acquittals.

This aspect leads directly to what I think are the article’s particular contributions to our understanding of rape law. Dash’s empirical findings allow us to problematize the category of the “rape victim” as well as our reliance on the acquittal figures to assess the working of the legal system. Dash finds 52% of the acquittals to be on account of the prosecutrix turning hostile. While the phenomenon itself is well known, the two major trends that Dash finds within this category of cases, unsettle the understanding that “victims” turn hostile owing to either coercion or frustration with the legal system. The two said sub-categories were of cases where the sex was consensual but was staged as “rape”, either because it was “illegitimate” (popularly known as promise to marry cases) or “improper” (popularly known as elopement cases). The “victims” refused or were made to refuse support to the prosecution case once the primary purpose of using the criminal law was achieved.

These findings raise two questions for me. First, it seems that the phenomenon of women using rape law to stage themselves as “good women” within a patriarchal value framework is a fairly prevalent one. What scholarly responsibility is involved, if any, in writing about such cases, given that socially, rape discourse remains polarized between the rape-is-worse-than-death and the all-women-lie-about-rape positions? Second, if the high number of acquittals is in part accounted for by the high number of cases that should not have come within the scope of rape law in the first place, then should we continue to look at the rate of conviction to assess the “success” of law reform?

The third important contribution of the article is its critique of the feminist involvement in rape law reform. Dash writes that it was the feminist groups’ lack of engagement with sentencing that allowed the state to enact stringent punishment while disregarding the structural problems ailing rape law. I both agree and disagree with this formulation. Yes, there was a lack of engagement with issues of punishment and sentencing. In all the meetings on rape law reform that I attended in Delhi from 2009 onwards, the discussion revolved mainly around issues like gender neutrality, age of consent and the wording of this or that offence. And this showed in the submissions to the Justice Verma Committee, where every group took a principled stance against the popular demands for death penalty and castration but had nothing to say on punishment generally.

But that is just one side of the picture. In later lobbying efforts with the government, feminist lawyers and academics who were familiar with how rape law worked, did oppose the removal of judicial discretion in the existing law and emphasized the need for gradation in punishment. These concerns were however overshadowed by other equally crucial goals. Strategic choices involved in engaging with the state cannot always be discerned from the documents generated in the process. To that extent, Dash’s method does not fit the demands of her claim. It would have been more useful for her to interview the feminist actors who participated in the amendment process. The general disagreement that I have with the formulation of Dash’s argument is that it overstates the power of feminists. Feminists or any other group seeking to influence the state, can introduce an idea in the public discourse on an issue, but whether it finds a place in the law or not, is something that they have little control over. The problem with Dash’s argument is its implication that feminist groups became responsible for the stringency of the sentencing framework in the 2013 criminal law amendment, simply by participating in the amendment process.

Recent critiques of feminism’s collaboration with state power in India and elsewhere have emphasized the need for feminists to wield their access to power responsibly, by carefully assessing the costs of the positions they take. Dash writes in the same vein, and argues that wielding power responsibly in the case of rape law demands greater investment in expertise over the systemic aspects of rape law, sentencing theories and so on. This has implications for feminist activism around rape law. Dash’s article will hopefully lead to many productive discussions.

Written by
Saptarshi Mandal
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