The crime of ‘rape’ is one of The most heinous and complex crimes, the ways and methods of it’s prevention have to be debated and researched by analysing factors behind frequencies of its occurrences. The diverse judgements of various high courts and the apex court can’t bring out the net results. These judgements are quite often based on judges’ individual perceptions which vary from Bench to Bench on the same issue or matter. Therefore, the factors behind rape have to be holistically analysed by result-oriented experts for a workable solution.
Rape is not a compounding offence and is not a matter to be left for the parties to compromise and settle. Courts call it an offence against society, but which offence is not against the society?
In a recent case titled Rakesh Yadav & Ors. Vs State of NCT of Delhi & Anr, in Crl. M.C. 4677/2024, the Bench of Delhi High Court comprising Justice Swarna Kanta Sharma, pronouncing its judgement stated that”…..this Court is of the opinion that criminal cases involving allegations of sexual violence can not be quashed on the monetary payments, as doing so would imply that justice is for sale.” The Court made these observations while refusing to quash an FIR under sections 376, 377, 323, 509, 34, 380 of IPC. It was alleged that the woman in question had been sexually assaulted by a man four times. The accused and the victim had met on social media. Later, the two settled and agreed to quash the case on payment of Rs.12 lakh.
In Shimbhu Vs State of Haryana (2013), the appellants had approached Supreme Court and asked for reduction of sentence of the crime of gang rape committed on the victim 14 years ago. The Court held that rape is a non- compoundable crime and just because there has been a settlement between the the victim and the accused, lesser punishment cannot be awarded as rape is an offence against society.
An affidavit signed by the victim was placed on record during the pendency of the appeal dated December 24, 2011, where she had stated that she was a consenting party to the alleged crime and that she didn’t want the case to be pursued further due to the fact that she had compromised with the accused on the said matter and also due to the fact that she was happily married with four children for the past 12 years. The compromise was entered to buy peace and to maintain dignity in her matrimonial life and therefore she has no objection if the sentence is reduced to the period already done. On August 27, 2013, the Supreme Court rejected the request and dismissed the appeal.
However, in Baldev Singh and Ors Vs State of Punjab (2011) 13 SCC 705, the same Supreme Court had reduced the sentence.
The Madhya Pradesh High Court has recently quashed a rape case based on a settlement between the complainant- woman and the accused. The accused persons agreed to the complainant’s demand that they wouldn’t claim Rs 10 lakhs from her for the dishonoured cheques issued by her. With the consent of the woman, the Court quashed the case. Justice Subodh Abhyankar also noted that though the…
In another case on March 1, 2021, then CJI S.A. Bobde, had asked the accused to marry the victim for avoiding imprisonment; and in Vikram Vs State of Madhya Pradesh, the Judge directed the accused to visit the victim on Raksha Bandhan, for tying Rakhi, as condition of the bail.
In such a chaotic situation, an holistic approach is required to address the causal factors, such as;
Pornography is the theory, rape practice:
Online pornography has literally created ‘porn pandemic’ as deadly as ‘Covid-19’. Experts trace a marked correlation between watching pornography and sexual crimes. It has the destructive power to turn a simple, normal, everyday man into rapist and murderer.
In his interview to Games C Dobson, notorious American serial killer Ted Bundy, hours before his execution in the electric chair documented: ” I was a normal person. I led a common life except for this segment. Pornography can reach in and search a kid out of any house today. It snatched me out of my home 30 years ago. I deserve certainly the most extreme punishment society has. And I think society deserves to be protected from me and from others like me.”
Advocate Kamlesh Vaswani filed in the Supreme Court a petition seeking to ban Online pornography in India and praying for direction to Government to treat watching of porn videos and sharing as non-bailable and cognisable offence, but the Government supported pornography in the Court. The Attorney General submitted that if someone wished to watch porn within their bedroom how can the State interfere with such an activity? He asserted that the Government did not want moral policing and that we (India) cannot become a totalitarian State by banning all pornographic websites because clampdown would bring the ‘right to freedom’. The State’s action may raise issues regarding ‘privacy rights’.
The then Chief Justice of India H.L.Dattu, who had used a similar line during the previous hearing interrupted and said, “Mr. Attorney General, why are you using our lines?”
The Attorney General contended: Simply viewing an obscene object is not an offence. It becomes an offence only when someone has in his possession such objects for the purpose of sale, hire, distribution, public exhibition or putting it into circulation.
Surprisingly, Attorney General and the CJI didn’t know that Online pornography supported by heavily loaded advertisements is an organised commercial activity, which lies in public domain being Online, it involves Online sale, hire, distribution, public exhibition and mass circulation. Where is the ‘Privacy’ left when an ‘object viewing’ is Online.
There’s also an exponential rise in Online child sexual abuse. According to reported news on November 14, 2021, CBI carried out raids in 76 cities, which led to 83 arrests for making obscene videos of children. According to National Crime Records Bureau (NCRB), due to the increasing economic vulnerability and school dropouts, there was a 400% increase in the sexual exploitation of children in videos.
Penal-Couple theory:
Crime records in India have shown that a majority of rapes are committed by persons known to the victim. In 2020, of the 28,046 cases of rapes reported, the accused was known to the victim. In 26,808 i.e. 95.6% of cases, of which 9.3 % were immediate family members, and the rest were friends, partners, ex-husbands, extended family members, neighbours and employers.
In the field of criminology, the study of ‘role of victim’ is a recent phenomenon. Mendelssohn seem to be the pioneer to identify the concept of the role of victim in crime, which he termed as ‘penal couple’. Thensforth, many other scholars undertook the analysis of this relationship. Professor Vom Hentig’s study on this subject: “The criminal and his victim”, was published in 1948. About the psychological relationship between the criminal and his victim, he says, that most of the crimes have two partners: the offender and the victim. To know the offender completely, one must also be acquainted with the complementary partner, the victim.
In his study, “The victim-offender relationship”, published in April, 1968, Schultz writes that the concept of aggressor is not always guilty, and the victim is not always innocent. As such, the phenomenon of women agreeing to sexual intercourse on promise of marriage makes her partner in the crime of rape.
Senior Advocate Mahalakshmi Pavani, President-Supreme Court Women Lawyers Association, said, “As per the horrifying statistics of National Crime Record Bureau, every 16 minutes, a woman is raped somewhere in India, and every four minutes woman experiences cruelty at the hands of her in-laws. Further, as per 2022 NCRB latest Annual Report data records, 90 rapes take place in India every single day on an average. It is heart wrenching to note that India is the ‘Rape Capital’ of the world and Delhi is the ‘Rape Capital’ of India because of such high rape crime rates recorded every year. The University of Hampshire found out that the countries with the most pornography streaming also have the highest rape cases. Rape cases have become so common in India and the question lies, ‘Does streaming Otnline pornography promote rape culture in India?’
I do agree with the fact that one of the factors of rising rape cases has been Online pornography since 1990 onwards. In earlier times, people were completely oblivious to the existence of such sources available to watch pornographic content. However, with the advent of the internet in the 1990’s it revolutionized the distribution and consumption of pornography. Previously confined to print media, VHS tapes, and adult stores, pornography became instantly accessible with the click of a button. Websites offering free and paid content proliferated, catering to a diverse array of tastes and preferences. This unprecedented access brought pornography into the private spaces of millions, shaping sexual norms and behaviours in ways previously unimaginable and now unfortunately, this has been serving as a negative medium responsible for corrupting innocent minds, implanting criminal intentions in their minds and teaching them how to rape any woman including female babies which has been the reason why rape cases in our country have been rising since 1990s.
This gets further substantiated by a plethora of studies and research reports conducted in our country. In a shocking finding, as per a survey conducted by an NGO at Mangaluru in 2016, it was revealed that watching porn could lead to rapes! The report was based on the survey conducted by Rescue Research and Training Charity Trust (NGO). It covered 3,500 students between the age of 16 and 21 of 183 colleges of about 8 districts in the state. During the survey, about 76 per cent of the respondents agreed that porn increases the sexual urges and arouses lust which leads towards the desire to have sex and where they are not in a relationship, tendency to rape is there.
As per Indian Express news-article dated 20 Feb, 2021, it was reported in Andhra Pradesh that according to crime statistics of 2020, as many as 220 rape cases were reported in Krishna district, including Vijayawada, where a majority of the accused in the cases were minors and they confessed that they have committed crime after watching porn. A similar incident took place where Kruthivennu police arrested a Class 10 student at Nillapudi village in Krishna district for molesting an eight-year-old girl, who happened to be his neighbour. During investigation, police and parents of the teenager came to know that he used to watch porn on his smartphone. Police said that the teenager committed the crime against the minor girl unable to control his sexual aggression.
These findings and incidents clearly establish the fact that “Teenagers and youngsters, addicted to pornography, are more prone to commit crimes.” Child psychologists also opined that minors who frequently watch porn, behave aggressively.
It has been noticed in recent decades, that the proliferation of Online pornography has sparked widespread debate regarding its societal consequences, particularly its potential link to rising instances of sexual violence, including rape. Since the 1990s, the accessibility and anonymity afforded by the internet have dramatically transformed the consumption patterns of pornography, leading to concerns about its influence on sexual attitudes and behaviours leading to a spike in the number of sexual crimes like rapes, molestation, forced prostitution etc. by men of all age-groups. It is clearly evident that there exists a complex relationship between online pornography and rape cases, while the role and responsibility of governments in regulating this phenomenon has always been an unresolved controversial issue for debate by the media for years now.
In 2015, I, as President, SCWLA pioneered to fight against this unwarranted spread of child pornography in our society by filing an Intervention Application on behalf of Supreme Court Women Lawyers Association in the case of Kamlesh Vaswani v. Union of India, (2016) 7 SCC 592 and this led the Court to change the law and give directions for shutting down 857 Pornographic Sites which unfortunately were shut down only for 3 days but resumed streaming as the owners of the transmitting centres suffered losses running into crores.
Blame it on easy access to ‘bad content’ on smartphones, there is increased aggression and violent behaviour in youngsters, especially minors, which is prompting them to commit child abuse such as kidnaps, molestation and sexual assaults. Further, the alarming issue is that even Child psychology experts are expressing concern as many teenagers are getting addicted to porn. Further, the teenagers also tend to show abnormal behaviour and characteristics such as anger, sadism, perversion, sexual coercion or just sexual gratification.
The bitter truth is that despite mounting evidence and societal concerns, governments worldwide have often been criticized for their perceived negligence in effectively regulating online pornography. Legal frameworks vary widely across jurisdictions, with some countries implementing stringent restrictions while others maintain a laissez-faire approach. The challenges of regulating a borderless and rapidly evolving digital landscape have often stymied legislative efforts, leaving regulatory gaps that exacerbate the societal impacts of online pornography.
So, the question arises that ‘Should governments be held responsible and accountable for not controlling Online pornography legally?’ despite certain laws and some legal precedents available to control the same. The answer to this question hinges on the broader societal consensus regarding the role of governments in protecting public morality and safety. I strongly feel that governments have a duty to safeguard vulnerable populations, particularly minors, from exposure to harmful content that may contribute to societal harm. Some kind of regulatory measures, such as age verification requirements and content restrictions, are essential to mitigate the negative impacts of pornography on public health and well-being.
Governments have the authority to enact laws and regulations that govern Online content, including pornography. They can further establish guidelines for platforms, ISPs, and content creators to ensure that material is not harmful or illegal. Governments possess the technological resources and infrastructure to monitor Online content effectively. They can employ filtering technologies, algorithms, and digital tools to identify and restrict access to illegal or harmful pornography, especially content depicting violence or exploitation.
ISPs play a crucial role in the distribution of Online content. Governments can work with ISPs to implement filtering mechanisms, age verification systems, and content moderation policies that align with legal standards and societal norms regarding pornography.
Governments can invest in research and data collection to better understand the links between exposure to pornography and sexual violence. Weak enforcement or loopholes in legal frameworks can allow harmful content to proliferate, potentially influencing attitudes and behaviours related to sexual violence. They can collaborate with law enforcement agencies and international bodies to track down and prosecute offenders.
Mahalakshmi further said, “it’s a very sad reality that in large number of cases, women do not want to pursue the cases with police and in courts going on for several years, and in some cases, offenders offer marriage or financial compensation to the rape victim. The law is silent on this as law doesn’t provide for heinous offences to be compounded.
Compounding of offences is provided under Section 359 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (Section 320 of Criminal Procedure Code, 1973). It lists out the offences that can be compoundable. However, the jurisprudence behind compounding of offences is the principle of decriminalization as it absolves the person of the crime committed. Understanding the connection between the notion of compounding offenses and the crime of rape is essential to comprehending the approach used by the Indian judiciary. According to Section 63 of the Bhartiya Nyaya Sanhita, 2023 (Section 376 of the Indian Penal Code, 1860), rape is not a crime that may be resolved outside the court by the accused and victim coming to an understanding.
Rape is a non-compoundable offence due to its gravity, as enshrined under Section 359 of the Bhartiya Nagarik Suraksha Sanhita, 2023. Since rape has not been listed under the section, it is clearly not compoundable. Even though the High Court has inherent powers to make orders to safeguard justice under Section 482 of the Code of Criminal Procedure, 1973, (Section 528, BNSS) the landmark judgment of Gian Singh v. State of Punjab & Others (2012) 10 SCC 303 stated that grave offences like rape could not be quashed by the court even if it was compromised between the victim and the offender.
Data put forth by the National Crime Record Bureau showed that an average of 191 rape cases were compromised every year since 2014. The Crime India 2019 report highlights the need for gender awareness and also the abysmal percentage of the conviction rate in rape cases as low as 27.8%. It also raised that approximately 15000 cases involving crimes against women are getting compromised. Even though the statute lays down that compromise cannot be resorted to in rape, the lower courts have inherently exercised their powers under section 482 of the Code of Criminal Procedure Code, 1973 to quash the proceedings against the perpetrator when he agrees to marry the victim. The Apex Court has always looked down upon this cavalier attitude of the lower courts. It has been established in a plethora of judgments like the State of M.P v. Madanlal (2015) 7 SCC 681 that compromise must never be brought into the picture while dealing with rape.
The Hon’ble Supreme Court in Baldev Singh v. State of Punjab, (2011) 13 SCC 705 held that Section 376 is a non-compoundable offence. Rape is seen as a crime that’s not just against the victim but additionally against society as a whole, involving profound mental and moral depravity that affects social standards and the public conscience. Further, in State of M.P. v. Laxmi Narayan (2019) 5 SCC 688, the apex court reaffirmed that horrible crimes like rape cannot be excused or absolved based on an agreement among the involved parties. The argument is that accepting settlements would belittle the offence, despite it of having a significant social impact that these crimes have. The Court has made a distinction between the inherent authority to quash proceedings under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (Section 482 of Criminal Procedure Code, 1973) and the ability to compound offenses under section 359 of the Bhartiya Nagarik Suraksha Sanhita, 2023, highlighting the latter’s use with caution and never in cases of serious felonies such as rape. Also, in Yogendra Yadav v. State of Jharkhand, (2014) 9 SCC 653, the SC held that comprising rape cases would not only fail to fulfill the larger community need for deterrence and retribution, but also compromise the victim’s dignity and sense of justice. Compounding crimes like rape would upset the legal and social order and have an adverse effect on public morality and harmony. Private agreements cannot erase horrible crimes like rape, but they can settle personal conflicts like marriage or civil property issues.
She pointed out, “In societies worldwide, a concerning trend persists where many women choose not to pursue rape cases through the legal system, despite experiencing severe trauma and injustice. This phenomenon raises critical questions about the reasons behind such decisions and the legal implications when offenders offer marriage or financial compensation to victims as a resolution.
The decision of many women not to pursue rape cases with law enforcement and courts can be attributed to several complex factors: 1. Fear and Intimidation; Societal attitudes that stigmatize victims of sexual assault; 3. Distrust in Legal System; 4. Lengthy legal processes; 5. Lack of Support Services.
Mahalakshmi gave a brief of some Courts’ rulings:-
In a recent case of the Karnataka High Court, Raghvendraraddi Shivaraddi Naduvinamani v. The State of Karnataka & Anr. (Crl. Petition No. 100721 of 2023, DOJ -20.12.2023), the High Court quashed a rape case against a man who was accused of indulging into sexual relationship with a woman on a false promise to marry. The High Court in view of the facts and circumstances of the case observed,
“… the offence under Section 376 of the IPC cannot be laid against the petitioner and permitting further proceedings to continue would become an abuse of the process of the law and therefore, the said offence is to be obliterated. …
What remain are, the offences punishable under Section 417 420 and 506 of the IPC – cheating and criminal intimidation. All of them are found in the case at hand.”
Maharashtra High Court’s judgment in Mohit Subhash Chavan v. State of Maharashtra (Bail Order No.32 of 2020) caused a lot of buzz and controversy. Anticipatory Bail was granted to the accused on the ground of marrying the Rape victim which displays the regressive action taken in judicial capacity undermining the Sexual tension and displaying the trivialisation of sexual offences in our system. The Esteemed Judges of learned capacity are expected to not only resolve but to award both the sides a judgement fit for their course of action.
Further, the Chief Justice of India Sharad Arvind Bobde on Mar, 1 2021, “inquired” from the Accused that “If you want to marry, we can help you. If not, you lose your job and go to jail” in response to which he further stated that “we are not forcing you to marry “. This comment made by the ex-Chief of Justice of India, S.A. Bobde, in this case of stalking and rape of a 16-year-old girl was met with consternation and wide criticism but later he clarified stating that his remarks were misreported and taken out of context.
Supreme Court has constantly reiterated that lower courts should not grant bail after initiating marriage in rape cases. Still, the Madhya Pradesh High Court in Vikram v. The State of Madhya Pradesh, [MCRC (23350 of 2020), Judge: Rohit Arya, DOJ-30.07.2020] had granted a ‘conditional bail’ to man accused of sexual harassment on terms that he would pay a visit to the complainant on the occasion of ‘Raksha Bandhan’ and to pay INR 11,000 to the complainant as ‘customary ritual offered by brothers to sisters on such occasion’. The order which provides unsatisfactory solution also said, “The applicant shall also tender Rs.5,000/- to the son of the complainant for purchase of clothes and sweets” apart from other conditions. The concept of having liberty to choose kin got completely blown away by these words!
But the question is ‘Can relationships really be made by Court’s compulsion?’ In India, the right to personal life and personal liberty has been envisaged in Article 21 of the Constitution. Liberty has been granted where an individual can have a sibling of its own choice apart from having a blood one. There are other questions too which arises from High Court’s judgment. “Can an accused perpetrator become victim’s protector as a brother? Does a woman only deserve respect on account of being someone’s sister? Can a woman’s modesty be bartered with an oath taken by the accused to protect her later and what about the societal stigma? What about the physical, mental, psychological and emotional trauma she underwent after being raped?” – None of them are answered just like the plight of thousands of rape victims in our country.
Further, on the positive side, in the case of Om Prakash v State of U.P. and Another (Application No. 8514/2023), Allahabad High Court refused to quash the proceeding in a rape and molestation case on the ground that the accused and the complainant had married each other and had compromised the matter. The allegations against the accused were that he had established physical relations with the complainant, who was a widow, and also molested her daughter with questionable intentions. The bench of Justice JJ Munir said that “prosecution in heinous offences such as rape and molestation of minors, which are punishable under the Act of 2012 (Protection of Children from Sexual Offences Act), the victims do not have the freedom to compromise as if it were a compoundable offence or a civil cause”.
Furthermore, Delhi High Court in the case of Rakesh Yadav v. State (NCT of Delhi), 2024 SCC OnLine Del 4478 held that the FIR itself reveals serious allegations against petitioner no. 1 and his family members, including consistent threats to the prosecutrix to prevent her from lodging a complaint. The Court also notes that the MOU entered into by the parties is not the result of a resolution of misunderstandings through family intervention but rather an exchange of money amounting to Rs. 12 lakhs, intended to secure the quashing of the FIR. However, this Court is of the opinion that criminal cases involving allegations of sexual violence cannot be quashed on the basis of monetary payments, as doing so would imply that justice is for sale.
“ Unfortunately, this practice of ameliorating situations in rape cases through marriage, often facilitated by the parents, stems from a collective pursuit to protect the ‘honour’ of women. Marriage is seen as a consolation in such a situation. This misplaced societal sensibility is rooted in the belief that marriages provide the only space for legitimate sexual expression and any deviation from this can only be rectified by marriage.”
Hasan Khurshid, Associate Editor
hasan.khurshid@lawyersupdate.co.in
