It is Black Saturday on 29th December 2012. The victim in the Delhi gang-rape case of 16th December 2012 has unfortunately died today fighting a brave battle for life, first in Safdarjang Hospital in Delhi, and then in Mount Elizabeth Hospital in Singapore. The whole nation is mourning the death of this unfortunate gang-rape victim. In her death, she has exposed the whole criminal justice system as well as the poor governance and poor situation of law & order in the country, in particular the safety of women. There are demands for enhancing punishment for rape cases, including demands for prescribing death penalty for rape cases.
In this environment, one may find it unbelievable how in a recent proven gang-rape case, the Supreme Court had drastically reduced sentence awarded to the rapists without adequate and reasonable cause.
In the recent case of Baldev Singh v. State of Punjab, (2011) 13 SCC 705 : AIR 2011 SC 1231 : 2011 Cri LJ 1746, that was decided on February 22, 2011, the Supreme Court (a bench consisting of Justice Markandey Katju and Justice Gyan Sudha Misra) had drastically reduced the sentence in a gang rape case under Section 376(2)(g) of the IPC to much below the minimum punishment prescribed under the law on grounds that did not appear to be so special and that appeared to be commonly available in many other cases. A copy of this judgment is available online here.
Section 376(2)(g) of IPC lays down that whoever commits gang rape shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine. However, the proviso to the said sub-section 376(2) provides that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
In the aforesaid case of Baldev Singh, the Supreme Court reduced the sentence of the three appellants, found guilty of committing gang rape, to the period of only about three and half years’ imprisonment already undergone. It appeared to be an unusual case wherein the sentence has been drastically reduced from the minimum prescribed ten years to the aforesaid much shorter period without there being any special or adequate reasons.
The case appears even more unusual when one looks at the fact that the Supreme Court had considered the fact of the case being an old case (incident of gang rape took place in the year 1997, i.e., about 14 years back) as a “circumstance for invoking the proviso to Section 376(2)(g) and awarding a sentence less than 10 years, which is ordinarily the minimum sentence under that provision”. Thus, the Supreme Court considered the fact of the case being an old case of 14 years as an adequate and special reason for reducing the said sentence to much below the minimum prescribed sentence. For this purpose, the Supreme Court also considered the fact that the parties have entered into a compromise to finish the dispute. It was mentioned that the appellants (rapists) had since got married and the victim had also got married meanwhile (it is pertinent to point out that these were separate marriages and it is not the case that the victim had married the rapist, which in any case was not possible since there were 3 rapists).
Unfortunately, the reasons given by the Supreme Court do not appear to be special and adequate reasons for reducing the punishment in the said gang rape case to a much shorter punishment than the minimum prescribed under law. Given the fact that many of the cases remain pending before the trial court itself for 15-20 years with appeals before the High Court and Supreme Court needing further longer durations, the aforesaid Baldev Singh case cannot be given the special advantage of being an old case, since within a short span of 14 years this case had the so-called luxury to reach (and get decided by) the Supreme Court. Thus, this case got decided from the trial court, the High Court and then the Supreme Court within a total period of 14 years. There are a large number of other similar cases that take much longer periods for this purpose. So, this cannot be a special reason.
Secondly, the fact of the accused getting married during the long pendency of the case or the victim getting married during such long period, is not an unusual thing. One cannot expect that they should not marry during the long pendency of the trial or the appeal proceedings. And, if they do marry (not to each other), this fact does not deserve any special consideration as it is a usual phenomenon common to most cases.
Thirdly, the fact that the parties had arrived at a compromise has to be seen in the context of the fact that rape (and more so, gang rape) is a non-compoundable offence under law. Therefore, the law does not give any recognition to a compromise between the rapist and the rape-victim. This being so, giving undue importance to such a compromise may have the tendency to lead to the unfortunate consequence of the rapists trying to put pressure on the rape-victims to compromise. This will negate the legislative intent and mandate. It may also lead to further victimisation of the poor rape-victims. So, money power or muscle power may overpower the legal processes by way of a “forced” compromise. Moreover, in the instant case, it appears that the Supreme Court did not make any efforts to call for the rape-victim to authenticate the truthfulness and circumstances of the compromise and to ascertain for itself as to whether the so-called compromise was voluntary and genuine.
The recent rape case of Patiala in Punjab is relevant in this regard. In that case, even the police officers were trying to force a compromise between the rapists and the victim. Later, the victim committed suicide. It is only after this that this Patiala case attracted the attention of people at national level that led to some belated action against the concerned police officers.
Therefore, a compromise between the parties is rather a cause to look at the case with suspicion. It is like adding insult to injury. First you commit rape and then force a compromise on the victim using money or muscle power. That is why perhaps, the Parliament, in its own wisdom, decided to keep the offence of rape as a non-compoundable offence, where a compromise is not allowed.
It is unfortunate that, ignoring these aspects, the Supreme Court considered the compromise in the said Baldev Singh case as a reason to reduce the punishment of the gang-rape convicts.
No doubt, the Supreme Court has the power to do “complete justice” in a given case before it under the provisions of Article 142 of the Constitution of India (though the judgment in this case does not refer to Article 142). Nonetheless, the fact remains that a sincere effort to do “complete justice” should not lead to an unintended result of injustice to the important social cause of ensuring gender equality and safety of women in as much as an unusual judgment like this has the unintended capacity to open floodgates for similar judgments if the High Courts and trial courts take a cue from the Supreme Court. One can understand when there are compelling reasons in a case to reduce punishment. But, to reduce punishment (below the statutory minimum) in a case where there are no such adequate or special reasons and when the Parliament has mandated a minimum sentence cannot be justified. The fact remains that “complete justice” cannot be allowed to become “complete injustice”.
Justice Markandey Katju, who delivered the aforesaid judgment, is now Chairman of the Press Council of India (it is ironical to point out that the other Judge in the Supreme Court bench that delivered the aforesaid judgment, Justice Gyan Sudha Mishra, is a lady Judge). Interestingly, after the recent infamous Delhi gang-rape case, Justice Katju is reported to have said that rape is not India’s only problem. In another statement, Justice Katju is reported to have said that the “emotional outburst and agitations following the Delhi gang rape will achieve nothing and it will fizzle out in a few days”.
It is thus unfortunate that even the higher judiciary at the level of Supreme Court may not always be sensitive to the gravity of a serious offence such as gang-rape. This is in addition to the apathy of the police administration and the political executive. No doubt, rape offences continue to be committed unabated, without any fear of law. Mass protests by people all over the country following the horrific Delhi gang-rape case are understandable in this context since they show people’s anger at the system.
Update (January 3, 2013): Justice Katju has now written an article on his blog explaining the reasons for the judgment in the aforesaid Baldev Singh case (mentioning that “a lot of criticism …appeared on net…”, which is an apparent reference to my aforesaid article, though it is not mentioned directly). Unfortunately, Justice Katju has not come up with any new explanation and he has repeated the reasons that were mentioned in his judgment. The arguments advanced in my above article have not been answered by Justice Katju. I have the highest respect for Justice Katju. However, in my respectful submission, the Supreme Court decision in the above gang-rape was really unfortunate, and Justice Katju should perhaps have shown magnanimity in accepting that fact if at all he had decided to explain the reasons for reducing the sentence after his retirement (though, in all fairness, I must admit that it is not expected that a retired Judge of the Supreme Court should explain the reasons for his judgment after his retirement, since the judgment speaks for itself).
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