The brutal gangrape and homicide of a young woman in Delhi in December 2012 led to nationwide outrage. The anger on the streets forced the government to bring about substantial changes in the country’s rape laws, including stiffer penalties. Mrinal Satish, an associate professor at the National Law University, Delhi, assisted the Justice JS Verma Committee that was set up in the immediate aftermath of the incident to review the laws and suggest amendments. Earlier, for his doctoral studies at Yale University, Satish wrote a dissertation that forms the basis of his book Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India, in which he lists out the shortcomings of the judicial process in prosecuting cases of sexual violence. He spoke to about the findings of his study, now recorded in his book that argues for urgent statutory and judicial reform.

Edited excerpts from the interview:

What prompted you to look at rape laws in India?
A couple of law reform committees have recommended the introduction of guidelines for sentencing. However, these were not based on research or a proper identification of issues involved. Hence, my primary objective was to examine whether unwarranted disparity existed in sentencing by Indian courts, and whether sentencing guidelines were an appropriate solution to reduce such disparity (if established). I decided to examine rape sentencing since rape adjudication has always been impacted by pre-conceived notions, myths and stereotypes about the offence and about victims of rape. This is known to have impacted guilt determination in rape cases. I wanted to examine whether these, among other factors, influenced the sentencing process.

Since the tragic events of December 16, 2012, when a young woman was brutally gangraped in Delhi, we have seen a plethora of literature, opinions and debate. Has this helped or has this been detrimental to the prosecution of rape cases in India?

I personally think the literature, opinion and debate has helped the prosecution of rape cases. Awareness about the legal process relating to rape has improved. This has probably led to more cases being reported, as crime statistics post-2013 reveal. More importantly, conversations relating to issues of consent and responsible sexual behaviour have begun, which in the long run might aid in reducing sexual violence.

Much of the outrage we have recently seen around rape cases seems to be a fallout of the general anger against the failure of the criminal justice system in India. Would you agree with such an assessment?
I would not completely agree with such an assessment. Yes, there is anger about the working of the criminal justice system, and perceived impunity in some situations. However, I think the anger is more about widespread sexual violence leading to women not being able to effectively enjoy the rights guaranteed to them under the Constitution. These include the right to travel without fear of violence, the right to harassment-free work spaces among others.

In your book, you have recommended a judicial commission on sentencing. Why is this necessary?
I argue in my book that there is a need for formulation of policy that informs sentencing by courts. My study shows that courts either consider irrelevant factors in deciding the appropriate sentence for offenders, or inconsistently consider relevant factors. It also shows how aggravating and mitigating factors are not based on theories of punishment but on the views of individual judges. I argue that there is a need to decide on a theory of punishment ex-ante (before the event), and then formulate factors that are relevant (and irrelevant) in sentencing the offender. I make a case for deciding a “typical sentence” for each offence, which should be imposed if there are no aggravating or mitigating factors. The task of formulating such policy, updating the policy, and monitoring sentencing by courts is a full-time job. This task, I recommend, should be carried out by a full-time sentencing commission, which would be a research body. I also argue that legislatures are not equipped to do this task as they are not research institutions.

There is an ongoing debate on whether punishment for a series of crimes should not be concurrent but consecutive. At the launch of your book last month, Supreme Court judge Madan B Lokur raised this issue, asking if a convict who has raped one person should get the same sentence as a convict who has raped several victims. What are your thoughts on this?
The 2013 amendments to the rape law dealt with the issue of repeat offenders. The maximum sentence for a repeat rape offender is death under Section 376E of the Indian Penal Code. In 2014, under this provision, three men convicted of raping two women at the Shakti Mills in Mumbai received the death sentence. Similarly, if a man is convicted of repeatedly raping the same woman, that amounts to an aggravated case of rape, for which the maximum punishment is imprisonment for the rest of his natural life.

For cases other than rape, the question of concurrent and consecutive sentences is definitely an issue. However, the decision on whether one wants to sentence an offender to consecutive jail terms rather than ordering the sentences to run concurrently would depend on the theory of punishment used. If one were to believe in a reformatory framework, we would argue against such consecutive sentencing.

In India, we see cases where trial courts seem to be open to the idea of a rape accused marrying the victim, as a solution to prosecution. What are your thoughts on this, and ideally, what should the state do?
I think cases of this nature are rare now. Courts should definitely not be asking the victim to marry the accused. That is illegal, and also does not respect the choice of the woman. It considers rape as defilement and assumes that once defiled, no one else will marry the woman. Marriage is, thus, seen as a punishment being imposed on the offender. I completely disagree with this illegal practice.

On the other hand, there may be cases where the woman is under the age of consent but agrees to intercourse with a man she is in a romantic relationship with. However, since her consent is not considered valid, the act would amount to rape. In such a situation, if the victim voluntarily decides to marry the accused, the state should not interfere in it. However, the law does not permit the victim to withdraw her case. Hence, in the current context, the offender will have to be convicted and sentenced to the minimum punishment of seven years.

After the amendments to the law, there is a perception that this could lead to a rise in false allegations of rape. Is this possible? And what safeguards does the law provide, especially when there have been Supreme Court judgements stating that the testimony of a victim is adequate to prosecute and convict an accused?
That women frequently make false allegations of rape is one of the most prevalent rape myths across the world. It is deeply rooted in patriarchal and misogynistic thoughts. Rape law is as misused as any other law. It is ironic that when it comes to gender-related crimes, the false allegation argument is immediately made, whereas one does not hear such arguments for other offences.

I believe that there are enough safeguards in the law to deal with false allegations. The prosecution has to prove its case beyond reasonable doubt, and tools such as cross-examination are available with lawyers to bring out contradictions and false statements made by the complainant. I do not see a need to introduce higher standards for evidence in rape cases, or to provide a separate legal provision to prosecute and punish those who make false rape complaints.

You have cited the case of Bharwada Bhoginbhai Hirjibhai versus the state of Gujarat, which established some stereotypes while prosecuting rape cases in India. Could you elaborate on how that judgement harmed the prosecution of rape cases?
The question before the Supreme Court in Bharwada Bhoginbhai Hirjibhai versus the state of Gujarat (1983) was whether a man convicted of rape could be convicted solely on the testimony of the victim. The court answered in the affirmative. However, instead of providing legal reasons for the same, it listed 12 reasons which, in its opinion, would prevent an Indian woman from deposing falsely about rape. The emphasis of all the reasons provided were on chastity, virginity, shame and marriage prospects. At the same time, the court provided eight reasons that could lead to a Western woman making a false claim of rape. It also equated the urban elite in India to the Western woman.

This case is one of the most cited cases where the issue before a court is regarding the value to be given to the testimony of a rape victim. The stereotypical reasons provided by the court led to the construction of a typical rape victim, and an expectation of certain types of behaviour from the victim. Hence, if a woman, while testifying, appears confident and not ashamed, that may lead to a court not believing her testimony, because, after all, a woman needs to feel “a deep sense of some deathless shame” because of the rape. This was another stereotype coined by the Supreme Court in the 1980 case Rafiq versus the state of Uttar Pradesh, and reiterated multiple times in the last few years. In the book, I demonstrate how these stereotypical factors and myths adversely impacted rape sentencing. I discuss some of these findings here.

You have strong views on mandatory sentencing. How does a mandatory sentence (for instance, a minimum seven-year jail term) affect the prosecution of rape cases?
Prior to 2013, the Indian Penal Code provided a minimum sentence for rape, but gave the court the discretion to lower it by providing “adequate and special reasons”. Studies (including mine) showed that courts were citing irrelevant reasons that were neither adequate nor special and reducing sentences. The Supreme Court, too, noted and deprecated this approach. There was definitely a need to reform rape sentencing. The solution that the 2013 amendments proposed was to remove the discretion of judges to reduce the sentence below the minimum, and to provide for a mandatory minimum sentence.

I argue in my book that this might be counterproductive for a number of reasons. First, there is an observed tendency for courts to acquit individuals when mandatory sentencing regimes are put in place. Second, removing judicial discretion leads to discretion merely shifting within the system. In the United States, when the sentencing discretion of judges was removed, prosecutors were empowered to make crucial decisions relating to sentencing while charging offenders. In India, I suspect the discretion will move from the judiciary to the police. Third, there may be circumstances where it is justifiable to reduce the sentence below the minimum.

The focus of reform should have been on seeking accountability in the sentencing process, by making it mandatory for judges to provide reasons for imposing a particular sentence on an offender. These reasons could then be subject to appeal, if they were found to be irrelevant. At the same time, reform should have focussed on identifying factors that would be relevant and irrelevant in the sentencing process.

How does one deal with the prosecution of juveniles in crimes labelled heinous, especially when they are just a few months short of adulthood?
Prior to 2013, the age at which a girl could consent to sexual intercourse was 16. Hence, intercourse with a girl under that age was rape, even if she consented to the act. My study showed that in cases where the girl was just under 16 and the boy was around 18 or 19, courts convicted him, but imposed less than the minimum sentence. This, to me, indicated that courts were not in favour of treating consensual underage sexual activity on par with non-consensual sexual activity.

However, the Protection of Children from Sexual Offences Act, 2012, defined a child as a person under the age of 18, and criminalised various forms of sexual activity, including those that were non-penetrative. However, it did not provide for an “age-proximity” exception, wherein in cases where individuals of the same or similar age group engage in consensual sexual activity, a different punishment is provided. The consequence is that any form of consensual sexual activity between two 17-year-olds will be treated on par with non-consensual sexual acts, with judges bound to impose the minimum punishment of seven years. With the new Juvenile Justice Act permitting courts to treat rape as a heinous offence, children can be tried and punished like adults. Along with data journalist Rukmini Srinivasan, I have examined this issue using data from Delhi’s district courts.

You have stated that you do not like the term Nirbhaya used by the media to refer to the Delhi gangrape victim and by the government when it set up a budgetary allocation to aid rape victims.
Nirbhaya means fearless. The connotation is that the young victim of the brutal rape and homicide of December 16, 2012 was fearless during the attack. This is stereotyping – expecting a woman to fight back when attacked. It feeds into the myth that a woman will resist sexual violence for various reasons, including to protect her chastity and virginity. As I have noted earlier, such myths lead to an adverse impact on rape investigation, adjudication, and sentencing. They also perpetuate a myth in society that a woman who is not fearless or does not resist is possibly consenting to the sexual act.