By: Shivani Mody
Introduction
The Chief Justice of India, while hearing the case of Mohit Subhash Chavan v. State of Maharashtra, asked a rape accused to marry the victim in order to potentially reduce punishment for the offence, which resulted in widespread backlash and condemnation. However, the truth is that such deliberations are not new or unique in the Indian legal scenario. High Courts have consistently overstepped their powers under S.482 of The Code of Criminal Procedure, 1973 to quash non-compoundable rape complaints after a marriage settlement between the accused and the victim[1] in cases such as Kalubhai Virabhai v. State of Gujarat andMitesh Ashokbhai Chunavala v. State of Gujrat. Not only are such decisions bad in law, but their reasoning is deeply entrenched in a patriarchal understanding of rape and its harms.
The Fault-Lines in the Judgement
The judgment in Mitesh Ashokbhai Chunavala v. State Of Gujarat (the “judgement”) is part of the growing trend of High Courts overstepping their powers under S.482 of the IPC to quash non-compoundable rape complaints after a marriage settlement between the accused and the survivor. The judgement considers an application under S.482 of the Code of Criminal Procedure, 1973 (“CrPC”) to quash an FIR filed for the offence of rape as well sexual assault under the POSCO. Sanjana Panpatil’s mother filed an affidavit claiming that the conflict between her daughter and the alleged perpetrator had been resolved and they were now married. Justice Ahokkumar C. Joshi relied on the affidavit and the marriage certificate to conclude that the cause of the FIR did not survive post the settlement between the parties and thus the FIR could be set aside.
Overreach of Powers
Given the language of section S.482 and an analysis of case law (see : Arunkumar v. The State, Balbir Singh and Ors. v. The State of HaryanaandNavdeep Singh v. State of Punjab), makes it clear that the power under S.482 can be used to settle non—compoundable offences only in cases that are civil in nature and when it is used to secure the ends of justice. It cannot be used in the case of serious offences, which includes, but is not limited to rape. However, Justice Joshi creates a state of exceptionalisation to allow the court to use this power in the present case. The original judgement has no reasoning provided for the creation of this exceptional state, although Justice Joshi does make it clear that the court would not ordinarily entertain such a petition.
The rampant use of S.482 in cases of non-compoundable offences, such as rape, completely subverts legislative intent. The classification of certain offences as non-compoundable under S.320 of the CrPC is the result of various policy considerations by the legislature due to the nature and effect of these offences. The Court steps into the terrain of the Legislature to create new categorisations of offences that can be settled even though they are non-compoundable. This categorization is in the nature of a policy decision, which is a power afforded only to the legislative and executive branches. By an overreach of its power, the courts are then able to apply a patriarchal logic without being subject to the judicial review that the legislature normally would be.
The Creation of a Public/ Private Dichotomy
Although no explicit reasoning is given for the creation of an exception, the nature of the precedents used makes it clear that the court imagines a difference between rape that is private and civil in nature and one that is public and heinous in nature. In reaching the decision, Justice Joshi relies on the precedent laid down in Iqbal Dawood Hala v. State of Gujarat, in which the conflict was civil and personal in nature. There was no useful purpose seen in continuing the proceedings as no bigger question of public policy was involved. The reliance on this judgment is telling about the court’s assumption that the rape in the present case was similarly personal in nature and thus the court should restrict their interference with the same.
This public/ private dichotomy is inherently patriarchal in that it assumes rape to be a product of ‘stranger misogyny’– an act that cannot be committed within private spaces with potential or actual familial members. This allows for non-interference of the law in private spaces. These silences of law can often lead to the formulation of something akin to what Baxi calls ‘private legislation’- implicit rules within private spaces allow for the re-enforcement of gendered oppression.
Feminist scholarship has often seen rape as a wrong against society as it poses an injury to all women by furthering the objectification and subordination of women. It is part of a pattern of response of many men toward many women that aims to establish their mastery over a woman. The threat of rape is in fact a result of and an element of women’s systemic oppression. The distinction between private rapes and public rapes ignores the reading of rape as an offence that does not only involve the exploitation of individual bodily autonomy but one that is a tool of a larger structural epidemic of patriarchy.
Misplaced Care for the Victim
Further, the courts function on misplaced care for the victim based on heteronormative and traditional notions of sexual integrity and sexual harm. The court assumes that marriage would sufficiently resolve the harm caused to the victim and that she would have had equal bargaining powers in reaching the compromise (what the court calls a settlement) . The two grounds for exercising the power under S.482 are (i) to prevent the abuse of the process of any court or (ii) to secure the ends of justice. Since the former is not relevant, the courts rely on the latter reason to allow for a settlement. It is absurd that a court could conclude that a rape victim marrying their perpetrator would facilitate the process of obtaining justice.
The reading of rape as an attack on the honour of the victim, which can then be saved by allowing for her marriage is embedded in patriarchal and deeply problematic notions of chastity. The court assumes that quashing the case, would allow for the victim to live her married life peacefully and without the burden of testifying against her husband in court. However, this misplaced care for the victim overlooks the very real and legal harm caused to her and makes the court complicit in the same.
The victim, in this case, has experienced a violation of her bodily autonomy. Her agency to refuse a sexual act has been disregarded by the act of rape. This stripping of her agency is furthered when society and her family convince her to marry her alleged rapist. The court then participates in this process by assuming that the victim had an equal bargaining power as the perpetrator and the settlement reached thus allows any harm caused to her to be adequately rectified. The culture of compromise allowed within the courts manifests in spaces outside the court and creates a possibility for perpetrators of sexual violence to force their victims into marriage.
The Silencing of a Child Victim
In cases of child survivors where the FIR has been filed under POSCO, there is a complete absence of the voice of an integral stakeholder (the child) from any legal documentation or judgement. Often the FIR, as well as the request for quashing the same, is filed by the guardians of the child. In most cases, the child is not called before the court to present their testimony or record their agreement with the settlement. As illustrated by Pratiksha Baxi, even if the child is called to court, the law creates a paradox by assuming that the child does not have the capacity to describe the incident in an adult language, but also applies the same standards of evaluating the testimony of adult women to verify the child’s testimony. Thus in these cases, the law makes the courtroom inhabitable for children and disallows them from being part of “settling” their own harm.
Conclusion
The mixed signals sent by the judiciary in allowing for settlements often lead to growing pressure and threats by the accused towards the victim to settle and allow for the quashing of the case. While legally, such decisions are beyond the scope of the powers under S.482, there also needs to be an analysis of the language and the reasoning of the courts used to reach the decisions. This judgment shows a clear lack of understanding of the legal and real harm caused to survivors by the act of rape, ignorance of the existing power dynamics involved in such a crime and consequently in reaching a settlement; and silencing of integral voices in the process.
[1] There is a divide in feminist scholarship about whether to use the term ‘victim’ or ‘survivor’ for the person who has experienced rape. The term survivor is seen to be empowering in that it denotes the strength and recovery of the individual. There are also those who argue that the term exceptionalises crimes of sexual nature and takes away from the brutal experience of the individual. I believe that this terminology can be a personal preference for individuals who wish to control the narrative of their lived experience. However, without commenting on the merits of such debate, I have chosen to use the term victim in the judgement as it is a legal category and has certain rights and obligations attached to it.
[Shivani Mody is a fourth year law student at Jindal Global Law School]