The February 2011 Supreme Court judgement allowing compensation instead of punishment in a gang rape case sets a dangerous precedent
Titus Andronicus is the bloodiest and most gruesome of Shakespeare’s tragedies; the scholar and critic Clark Hulse, of the University of Illinois and a contributor to the Cambridge Collections, reckons that the play averages five atrocities in each act, one every 97 lines. Perhaps the worst is the gang-rape and mutilation of Lavinia, Titus’s daughter. In Julie Taymor’s 1999 film adaptation of the play, with Anthony Hopkins as Titus, this horrifying scene shows Lavinia after her rape seated on a tree-stump in a devastated landscape, her tongue cut out, her hands chopped off. The sequence is particularly startling because it makes no overt attempt to shock.
Between 1976, when it came to power after overthrowing Isabel Peron’s government, and 1981 Jorge Videla’s military junta’s used its “Dirty War” to muzzle dissent and freedom.1 Countless Argentines disappeared. Police and enforcement agencies routinely tortured and raped those they picked up. In Imagining Argentina, Antonio Banderas plays a theatre director whose wife (Emma Thompson) and daughter are among those to go missing. In an otherwise leaden-footed and irritating film, there is one stunning scene that haunts in memory, and it is of a rape. The rape itself is not shown, which adds to the impact. We only see Thompson’s face as she sits in the prison listening to the screams of her teenage daughter.
In 1988, Jodie Fosterwon an Oscar for The Accused, based on the true story of Cheryl Araujo’s gang rape by several men in a pool bar in New Bedford, Massachusetts, in the presence of onlookers who laughed, cheered and yelled. Rape and gang-rape feature prominently, too, in Anthony Burgess’s A Clockwork Orange (and in Stanley Kubrick’s film adaptation) as they do even in fictionalized historical accounts when it was possible perhaps to exclude them. Ross Leckie’s Hannibal has an incredible amount of blood-letting and gore, all lovingly detailed, and it doesn’t help that Leckie writes very well. Rape, in all its variants, has always had the imagination of art and literature.
If there is one thing that’s clear from any recounting of a rape story is that it is almost always about power and subjugation. The lives of figures like Phoolan Devi, subjected to repeated rape as a means of social dominance, are well known and the depictions of these lives in film have often come to court.4 The tribulations of Bhanwari Devi, an extraordinary woman, began after she was gang-raped by five men of an upper caste: her story was doubted, the medical examination delayed and then she was asked to leave her lehenga at the police station and walked three kilometres to a nearby village in the middle of the night covering herself with her murdered husband’s turban. Her case directly led to the Vishaka case before the Supreme Court where, for the first time, the Supreme Court spelled out guidelines relating to sexual harassment in the workplace.5 As the recent arrest of an NCP legislator accused of rape shows, we are in many ways still entirely feudal and men in power believe that their position and authority renders them inviolate in their violations. (Of course, the moment they’re caught they all promptly complain of “chest pain”). In the Ruchika Girhotra case, still pending in the Supreme Court, the only thing worse than the account of the 14-year-old girl’s molestation and death is that smirk on SPS Rathore’s face. Our news makes grimmer reading than anything in fiction.
But it is not only about power. Rape is the worst thing one human can do to another: its consequences can be as horrific as the act. A living death, it is made worse by the social stigmas which penalize the victim and by our outdated laws. The infamous Mathura case6 led to criminal law amendments and longer prison terms,7 but it is still legally impossible for a husband to rape his wife unless she’s under 15 (and the punishment is less if she’s between 12 and 15);8 and the law only sees penile/vaginal penetration as rape,9 ignoring mankind’s infinite capacity for depravity. An open letter to the Law Minister, signed by several groups and individuals, seems to have yielded no tangible result.
The Supreme Court’s 22 February 2011 decision in Baldev Singh v State of Punjab is, therefore, extremely disquieting.10 It is a very short judgement, no more than three pages. Three men gang-raped a woman early one morning. They were sentenced to 10 years rigorous imprisonment. Before the Supreme Court, they said that they had ‘entered into a compromise’ with the victim: the men had been in jail for over three years, all were now married, as was the victim (though “not to each other”, as the judgement helpfully tells us) and since the case was over 14 years old, and since the parties had apparently “compromised”, the court felt justice would be served by allowing each of the three accused to pay Rs.50,000 to the victim. It reduced the sentence to the time already served.
S.376 of the Penal Code allows the court to impose a lesser sentence “for adequate and special reasons”.11 The passage of time as a case grinds its way through the creaky machinery of our legal system is neither adequate nor special. It is no reason at all. A few months ago, in September 2010, the Bombay High Court correctly rejected the converse argument in a rape case when it said that poverty is no ground for leniency. Is wealth? It is difficult to know what to make of this: a rapist who is poor must receive the full sentence but a rapist of means need not?
Is compensation instead of a sentence even permissible in law? S.376 is a “non-compoundable” offence: it cannot be compromised. In this case, an affidavit was filed before the Supreme Court, presumably recording the victim’s consent. But in another case a court might have no way of knowing if the victim was coerced or if her ‘consent’ was fraudulently got.
Another law meant to prevent atrocities on Scheduled Castes and Scheduled Tribes12 does have a statutory provision for compensation—but only where the victim belongs to a Scheduled Caste or Tribe and the rapist does not. It is unclear now compensation of Rs.5,000 (or any other amount, for that matter) can prevent an atrocity like rape. Imprisonment has a function and a reason: it is not merely social retribution but is supposed to be a deterrent. The arguments against the deterrent value of imprisonment—principally that it implies that everyone acts rationally with full knowledge of the entire body of criminal law, down to the smallest offence—doesn’t add up to much in cases of rape or murder. Nobody in his right mind needs to be told that these are crimes.
Substituting compensation for imprisonment in rape cases and doing so on the ground of the law’s delays sets an extremely dangerous precedent. It raises unanswerable questions: what compensation is appropriate? Against what length of time served? Why only fifty thousand? Why not five lakhs or fifty? Is the court bound to accept a figure, even if parties have agreed to it? Can a court give judicial voice to any such private arrangement? Rape is a not a commodity for trade. It affords no futures and few options. Just as there is no tariff for murder, there cannot be a going rate for rape.
Set up in 1993, the International Criminal Tribunal for the former Yugoslavia (ICTY) is a UN law court that hears cases about war crimes committed in the 1990’s in the Balkans. The ICTY is responsible for significant changes in international human rights law. Many of its decisions on genocide, war crimes and crimes against humanity are acknowledged as setting global precedents in criminal jurisprudence and international law. ↩
The book’s title comes from the tribunal president’s answer when Weschler asked how he managed to sit through these accounts day after day. “As often as possible I make my way over to the Mauritshuis Museum, in the center of town, so as to spend a little time with the Vermeers.” ↩
Tukaram and Anr vs State of Maharashtra, (1979) 2 SCC 143. “Slamming the doors of justice on women”, Indira Jaising’s excellent article in the Indian Express of 20 January 1999 shows just how unjust our rape laws are and how they work to punish the victims. ↩
S.376 was amended to provide punishments for, among others, custodial rape and gang rape of 10 years rigorous imprisonment. ↩
*[Titus Andronicus]* is the bloodiest and most gruesome of Shakespeare's tragedies; the scholar and critic [Clark Hulse], of the University of Illinois and a contributor to the Cambridge Collections, [reckons that the play averages five atrocities] in each act, one every 97 lines. Perhaps the worst is the gang-rape and mutilation of Lavinia, Titus's daughter. In [Julie Taymor's 1999 film adaptation] of the play, with Anthony Hopkins as Titus, this horrifying scene shows Lavinia after her rape seated on a tree-stump in a devastated landscape, her tongue cut out, her hands chopped off. The sequence is particularly startling because it makes no overt attempt to shock.
: http://www.gutenberg.org/ebooks/2260 "Titus Andronicus at Project Gutenberg"
: http://www.newberry.org/elizabeth/credits/clarkhulse.html "Professor Clark Hulse"
: http://www.bookrags.com/criticism/titus-andronicus-crit3_13/ "S Clark Hulse, 'Wresting the Alphabet: Oratory and Action in 'Titus Andronicus' in Criticism, Vol. XXI, No. 2, Spring, 1979, pp. 106-18."
: http://bostonreview.net/BR25.2/stone.html "'Shakespeare's Tarantino Play', by Alan Stone, Boston Review, April/May 2000; reviewing 'Titus', directed by Julie Taymor"