A punishment that befits the crime
By Sandhya Jain

THE Supreme Court has struck a powerful blow for women’s rights, and above all, for justice, with its recent notice to a convicted rapist asking why his sentence should not be enhanced to life imprisonment. Case law on rape will never be the same again as the impact of this momentous intervention resounds and resonates in legal corridors all over the country. For the beleaguered women’s movement, and the countless victims of rape, and assault, the move comes as the proverbial first ray of light that pierces the darkness and heralds the dawn. It’s in the din of the country’s most long-drawn and noisy electoral contests.

In this particular instance, one T.K. Gopal of Karnataka, accused of raping an 18-month-old girl, was convicted under Section 376 of the Indian Penal Code, and awarded the minimum sentence of ten years’ rigorous imprisonment. The maximum sentence under this clause is life imprisonment, and the accused is also liable to a fine. Gopal decided to appeal to the apex court for a reduction in his sentence. However, on going through the facts of the case, and considering the tender age of the victim, a Bench comprising Mr Justices S. Saghir Ahmad and D.P. Wadhwa decided to issue him notice "to show cause why the sentence of ten years’ rigorous imprisonment should not be enhanced to life imprisonment."

Just one small twist in an ordinary rape case and suddenly we can see hope at the end of the tunnel. The Supreme Court action is a major milestone on the rocky, uphill path of women’s rights. It means several things simultaneously. First, and most obviously, it indicates the Courts’ disapproval of trial courts routinely awarding the minimum sentence in rape cases, particularly when the victims are minors (in the case a one-and-a-half-year-old infant). This can be expected to have a salutary long term impact on the trial courts, causing them to prosecute rape cases more strenuously and to show greater sensitivity to the plight of the victims, their special vulnerability, the spirit of the law, and the demands of justice.

At a more fundamental level, however, this simple notice has achieved what the women’s movement has been clamouring for all these decades — it has lifted rape from the narrow confines of issues concerning women (where it naturally could not be addressed effectively) and put it in its proper perspective as a question of human rights. Henceforth, we can expect that rape — the physical assault that simultaneously destroys the victims’ moral and spiritual self — shall not be banished to the women’s ghetto. We can expect judges to handle the cases with the gravity and sensitivity they deserve, and come down heavily on defense lawyers who seek to derail justice by specious references to the character of the accused, the circumstances of the crime, mitigating factors for the accused, and other irrelevant facts.

Women’s groups will no doubt welcome the Court’s action wholeheartedly; but they would be well advised to seize the opportunity and demand more. The Supreme Court has already indicated its mind on how rape cases should be judged, by referring to the victim’s age (18 months). Since it can be nobody’s case that mere toddlers could be "asking for it," we must demand at least life imprisonment for all convicted rapists in such cases; and the death sentence in rape-cum-murder cases. Cases of statutory rape (where the victim is under 18 years of age) must also be prosecuted stringently, and extraneous issues about the "character" of the victim disallowed in the courtroom. Needless to add, rape cases must be treated with uniform severity, even in the case of older victims.

Having opened the window to the sunshine, however, I feel that it would be appropriate if the court went further and opened the door. There is little hope that the archaic laws and outdated legal notions that constitute our judicial heritage are going to find a quick exit from the statute book, or that progressive legislation on rape is going to be the priority of legislators in the immediate future. Hence, it is for the courts to take the initiative and change the atmosphere through innovative interpretations of what is justice, and what is also just. Judges could also initiate a dialogue to address the whole gamut of rape as an assault on, and denial of, the human essence of women. We must change the mindset that rape is only a women’s issue; it is not. As an assault at the very core of a woman’s personality, her dignity and sense of ‘wholeness’, rape intimately concerns and affects the family as well as society as a whole.

The growing incidence of rape itself merits serious attention. When women are at risk at any age — from nine months to 90 years — there is something seriously wrong with society itself and recognising this fact would be a step forward. We can no longer pretend that crimes of passion are registering an increase only because more cases are actually being reported, when the fact is that more cases are occurring, and more types of cases are taking place. For instance, rapes of very young infants and very old women, were both unheard of a few decades ago and we do not need statistics to establish this point. Adolescents were and still are the preferred target of the depraved, though married older women are also popular victims. Most crimes are either an expression of sheer frustration and repressed violence, though revenge is also a common motif.

Caste rapes, however, are a form of abuse that have still not received due recognition, either by women’s groups, human rights activists, or even legal luminaries. ‘Caste rape’ is a term I have coined to define the special category of rape crimes in which the women are raped simply because they belong to a particular caste, usually the lower castes. These are premeditated crimes, usually gang-rapes, with the specific objective of humiliating and dehumanising the victim, and through her, the whole caste community to which she belongs. Caste rapes have been widely reported in most parts of the country and merit special attention from the authorities and the legal community. Since the "social objective" behind these crimes is usually to squash the rising assertiveness of the depressed classes against the social abuse of castes above them in the social hierarchy, as well as for greater economic empowerment, they deserve more serious treatment from the state and the judiciary.

Another form of sexual abuse that has manifested itself in recent years is the growing incidents of incest, the assaults on young women by members of their own (or in-laws’) families.

Often, the victims suffer abuse and torture for several years before they find the courage to speak out, and more often then not, the cases tend to fizzle out in the trial courts due to pressure on the victims to back out. Sustained efforts by various women’s groups, however, have resulted in some successful convictions in recent years, and the attitude of the courts will go a long way in successfully prosecuting such cases in the future as well.

By taking a grim view of rapists’ plea for a lighter sentence, the Supreme Court has struck at the roots of the indifference towards rape victims as well as the deep-seated prejudice that women victims of violence are somehow themselves responsible for their plight. The Court has taken the view that the accused must be held responsible for their conduct, and made liable for the same. It follows that henceforth the courts (and by implications, society as a whole) must look with sympathy at the vulnerability of the victims, particularly those of tender years, rather than seem mitigating circumstances for the accused. This is a major reversal of established norms, for rape, as we all know, is the one crime where the "character" of the victim rather than the culprit, is made central to the case. We can only hope that from now on the judges will bring down the curtains on this painful chapter in women’s struggle for justice and for the recognition of their rights as human rights.