The Supreme Court on Wednesday reaffirmed that the law does not acknowledge compromise or mediation between a rapist and his victim, and under no circumstances can a compromise justify a reduction in the sentence for rape. Just days after the khap panchayat-style ruling from the Madras High Court on June 24 calling for mediation in a rape case, Justices Dipak Misra and PC Pant, passing judgement in a case from Madhya Pradesh, said:
The judges said that that rape was not a crime that could be settled through compromise. The judges said the court could never be assured that the woman had freely consented to the compromise, that she had not been pressurised to do so by her rapist(s) or had given in because of the hardships she had suffered as a consequence of the rape. They said that the argument that a rapist had agreed to marry his victim is “…nothing but putting pressure in an adroit manner” and emphasis that, “Courts are to remain absolutely away from this subterfuge”.
This unequivocal re-affirmation of the spirit of the law is much needed at a time when courts, like the Madras High Court and the Madhya Pradesh High Court whose judgement the Supreme Court overturned, have chosen to ignore the law and lend credence to customary practices that deny women and girls justice.
Yet the elation at this judgement is tempered by the reasons the judges set out in support of their decision.Their decision, they quite clearly state, is motivated by traditional considerations for a woman’s honour and reputation:
A woman’s right not to be raped has nothing whatsoever to do with her reputation, dignity or honour. It stems from her right to life and personal liberty as guaranteed by the Constitution. This is a right that all Indians have, irrespective of their gender. Yet, the judges make no mention of the woman’s right to life and personal liberty or to the Constitution.
Instead, in florid prose, mimicking styles from a couple of centuries ago, the judges hold:
This is a crude reinforcement of the widely held view that a woman’s reputation depends on who touches her body. Underlying this view is ambivalence about her voluntariness. After all if she is raped by her husband, in Indian law it is not rape and she does not lose her reputation, as he is socially and legally entitled to touch her body or, in the words of the good judges, her ”temple”. But, if she is raped by a man not her husband then she loses her reputation, because her “temple” (to which he has no right) has been “defiled”.
Some might say that quibbling over words ignores the spirit of the judgement, which seeks to ensure proper punishment for the crime of rape. But it is hard to ignore the words of Judges of the apex court that reinforce the social construction of a woman’s worth as bound up in her sexual conduct. A world, in which women are not equal citizens but the embodiment of family and societies’ honour and reputation. This is a world in which khap panchayats flourish and judgements such as the one from the Madras High Court are given.
What women want from judges, however sound their judgements, is a concern for their rights and not for their reputations.
We welcome your comments at
letters@scroll.in.
“We would like to clearly state that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of...Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility.”
The judges said that that rape was not a crime that could be settled through compromise. The judges said the court could never be assured that the woman had freely consented to the compromise, that she had not been pressurised to do so by her rapist(s) or had given in because of the hardships she had suffered as a consequence of the rape. They said that the argument that a rapist had agreed to marry his victim is “…nothing but putting pressure in an adroit manner” and emphasis that, “Courts are to remain absolutely away from this subterfuge”.
This unequivocal re-affirmation of the spirit of the law is much needed at a time when courts, like the Madras High Court and the Madhya Pradesh High Court whose judgement the Supreme Court overturned, have chosen to ignore the law and lend credence to customary practices that deny women and girls justice.
Yet the elation at this judgement is tempered by the reasons the judges set out in support of their decision.Their decision, they quite clearly state, is motivated by traditional considerations for a woman’s honour and reputation:
“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. It is sacrosanct.”
A woman’s right not to be raped has nothing whatsoever to do with her reputation, dignity or honour. It stems from her right to life and personal liberty as guaranteed by the Constitution. This is a right that all Indians have, irrespective of their gender. Yet, the judges make no mention of the woman’s right to life and personal liberty or to the Constitution.
Instead, in florid prose, mimicking styles from a couple of centuries ago, the judges hold:
“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.”
This is a crude reinforcement of the widely held view that a woman’s reputation depends on who touches her body. Underlying this view is ambivalence about her voluntariness. After all if she is raped by her husband, in Indian law it is not rape and she does not lose her reputation, as he is socially and legally entitled to touch her body or, in the words of the good judges, her ”temple”. But, if she is raped by a man not her husband then she loses her reputation, because her “temple” (to which he has no right) has been “defiled”.
Some might say that quibbling over words ignores the spirit of the judgement, which seeks to ensure proper punishment for the crime of rape. But it is hard to ignore the words of Judges of the apex court that reinforce the social construction of a woman’s worth as bound up in her sexual conduct. A world, in which women are not equal citizens but the embodiment of family and societies’ honour and reputation. This is a world in which khap panchayats flourish and judgements such as the one from the Madras High Court are given.
What women want from judges, however sound their judgements, is a concern for their rights and not for their reputations.
