On Wednesday, the Supreme Court came down hard on "compromise" in rape cases. The Madras High Court's P Devadass had created a furore by giving a child-rapist interim bail to let him "participate in the deliberations as a free man and vent his feelings, open his mind and moorings."
The survivor was 14 when she was raped. Her parents have died since, at 21 she is the mother of a child born after the rape.
She refused the court's offer of mediation.
In another case of sexual assault against a 7-year-old in Madhya Pradesh, the Supreme Court held on Wednesday that "compromise" would be a "spectacular error". The crime is against us all, and not just the individual child, the judges said.
As they were reaching their decision though, they also added this:
In our country "obiter" statements – i.e. statements not essential to the reasoning of the case – are followed by High Courts and lower courts,.
The brightline rules of jurisprudence for the courts to follow in such cases spring quite directly from the Constitution of India: free will and agency, bodily integrity, consent. If these basic constitutional rights were to be invoked, marital rape would be illegal, the legal standard "outraging the modesty of women" sent to the historical dustbin as Victorian prudery. It would flow naturally from a rapist’s violation of these rules, that it is his honour that’s damaged, reputation sullied, he who would find it difficult to marry.
The sentencing structures in our penal code are blunt instruments. Nuanced sentencing based on restorative justice principles that reforms without brutalising is badly needed. These "compromises" emerging from patriarchal entitlements over women's bodies are not the answer.
What if the Hon’ble Court’s admirable conclusion on Monday had been reached by invoking constitutional reasoning and in different words?
Karuna Nundy is Advocate, Supreme Court of India.
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The survivor was 14 when she was raped. Her parents have died since, at 21 she is the mother of a child born after the rape.
She refused the court's offer of mediation.
In another case of sexual assault against a 7-year-old in Madhya Pradesh, the Supreme Court held on Wednesday that "compromise" would be a "spectacular error". The crime is against us all, and not just the individual child, the judges said.
As they were reaching their decision though, they also added this:
“These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the “purest treasure”, is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most.”
In our country "obiter" statements – i.e. statements not essential to the reasoning of the case – are followed by High Courts and lower courts,.
The brightline rules of jurisprudence for the courts to follow in such cases spring quite directly from the Constitution of India: free will and agency, bodily integrity, consent. If these basic constitutional rights were to be invoked, marital rape would be illegal, the legal standard "outraging the modesty of women" sent to the historical dustbin as Victorian prudery. It would flow naturally from a rapist’s violation of these rules, that it is his honour that’s damaged, reputation sullied, he who would find it difficult to marry.
The sentencing structures in our penal code are blunt instruments. Nuanced sentencing based on restorative justice principles that reforms without brutalising is badly needed. These "compromises" emerging from patriarchal entitlements over women's bodies are not the answer.
What if the Hon’ble Court’s admirable conclusion on Monday had been reached by invoking constitutional reasoning and in different words?
“These are crimes that violate the bodily integrity of a woman in small ways and large. These are assaults on her physical, indeed on her constitutional freedoms. Article 21, her right to liberty, while she punishes her body in a boxing rink or chooses to lay with a man from a different caste or creed; Article 19, her right to take a walk in the middle of the night, her right to drive a truck or lead her panchayat or stand in her circle of power and debate the deities.; Article 14 , the right to equality, real equality and flourishing along with her fellow citizens of all genders. A woman’s freedoms are our ‘purest treasure’. This ‘golden triangle’ of rights has our richest jewels, it is these that cannot be tarnished by compromise, that’s what matters the most.”
Karuna Nundy is Advocate, Supreme Court of India.