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Compromise in Rape Cases: Whither Constitutional Morality?: Kalpana Kannabiran


The Supreme Court judgement reported in some newspapers on 24 February 2011, legitimizing compromise in rape cases, is cause for serious concern.  For thirty years now human rights groups and women’s groups have fought difficult battles to have rape recognised as a serious offence both in communities and by courts.  Rights advocates have been concerned by the fact that all too often the view of the judiciary converges with the view of the community in seeing women’s sexuality as communally owned property, thus removing any articulation of violence from the crime of rape.

Some years ago, at a workshop of judicial officers, we had one senior officer arguing that if a man found guilty of raping a woman offered to marry her, this offer should be considered as a “mitigating circumstance,” and his sentence reduced to the bare minimum.  That done, since his continuing in jail will be detrimental to his new family life, he should be set at liberty under the provisions of the Probation of Offenders Act.  Fortunately in that gathering, the majority of officers, most of them junior to the officer concerned, felt strongly that this is a gross misapplication of the law.  But the existence of the possibility that a judge might actually rationalize the gross misinterpretation of a law as critical to women as this, has far reaching consequences.

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