Rape as defined by the Supreme Court in Bodhisattwa Gautam v. Ms. Shubhra Chakraborty[1] is not only a crime against the body of a woman (victim), it is a crime against the entire society. The Apex Court has further observed, “to many feminists and psychiatrists, rape is less a sexual offence than the act of aggression aimed at degrading and humiliating women”.

It is a crime against the basic human rights and also violates the victim’s most cherished fundamental right, namely the right to life as contained in Article 21[2] of the Indian Constitution.

One of the issues in system is that the rape laws do not, unfortunately, take care of the social aspect of the matter and are inapt in many respects. Furthermore, a large number of the rape cases remain unreported because of the social stigmas and pressures attached to the victim of rape and humiliation and mental torture which she and her family have to suffer during the court trial.

Scenario of Indian Society

In Indian system, it is considered that a crime is committed against the society not only against the victim. And, this is the sole ground for granting punishment to the accused, he is punished on the basis of impact that is formed on the society due to that offence. Felon is not punished on the basis of what consequences does the victim has faced or will face.

Due this concept society may get the justice but the victim often does not. If see towards the case of NIRBHAYA[3], the convicts got the death penalty and majority of the India is happy that finally the justice has been done to the victim. But, what kind of justice this is to the brave NIRBHAYA? She only suffered the pain and torturous acts of those culprits but she did not see them facing all such pains, tortures and humiliation which she faced on that BLACK day. Atleast the culprits must face and feel all that pain and humiliations which they made her to face.

Unfortunately, NIRBHAYA is just one of the numerous rape cases that fortunately got the media attention and due to this media attention got disposed off within 6 years (which is although a long time period but acceptable and fine if we see the Indian Judicial and political system with reference to other pending cases for example BILKISBANO[4] case). There are ‘n’ numbers of rape cases in which even FIR is not filed or even if it is filed then the mouth of the victim and her family shuts up or is made to shut up due to the fear of loss of reputation. Awarding of death penalty is fine in doing justice to the society but in my opinion the culprit must also get to face all those consequences and loss of reputation.

Mr. Justice S. Ratnavel Pandian of the Supreme Court in Madan Gopal Kakkad v. Naval Dubey & anr.[5] observed that, “offenders of the sexual assault who are menace to the civilised society should be mercilessly and inexorably punished in the severest terms”.

This crime destroys the entire psychology of a woman and pushes her into deep emotional crises.[6] If nature of the crime is such, then why don’t we apply the principle of hedonism (i.e., utilitarian theory of pain and pleasure propounded by eminent Jurist Jermy Bentham) .Not only the principle of hedonism must be applied the culprit should be punished through the retributive methods of punishment so that he must feel and come across the similar pain and realise what he did to an innocent person (woman).

Role of Politics

Still, despite of making such legislation, Indian politicians often start their dirty politics and talk about the human rights, basic fundamental rights, needs of the family of culprits. And, try to fill their vote bank behind the curtain of sympathy for the victim and condemnation of the rapist (most often accused because in most cases they are left free) and offering a helping hand to the culprit and his family in the name of humanity and fundamental rights of felons!

[1] AIR 1996 SC 922

[2] ARTICLE 21- Protection of life & personal liberty- No person shall be deprived of his life and personal liberty except according to the procedure established by law

[3] Mukesh & Anr. v. State for NCT of Delhi & Ors. [CRIMINAL APPEAL NOS. 607-608 OF 2017]

[4] cr.appeal.1020­to­1023.09, 487.10, 194.11, 271.11

[5] 1992(3) SCC (204)

[6] Supra, at 1

ABOUT THE AUTHOR

TESU GUPTA

Tesu Gupta is a third-year B.A.LLB(H) student of Jagan Nath University, Haryana. She has participated in many moot court competitions and paper presentations. Passionate about law and legal research, her area of interest is Arbitration. She has won the intra-university moot court competition and received the ‘Best Presenter’ award.