JUSTICE IS A SECRET: COMPROMISE IN RAPE TRIALS – PRATIKSHA BAKSHI

- Unlike other forms of out-of-court settlement such as plea bargaining or mediation, compromise
is not legal in rape cases in India. In Indian law, crime is classified into two types- compoundable and
non-compoundable. The latter means that opposing parties cannot bargain and settle out of court,
thereby affecting the outcome of the trial. The rationale is that state law is the sole arbitrator of the
extent and nature of injury caused to society by a crime, and rape falls into this category.

- The power to reify society, act on its behalf, and to punish, incarcerate, or act in the interest of
society must be conserved and continually reiterated. It is for these reasons that s. 213 IPC holds that
it is a crime when there is an agreement not to bring the criminal to justice in exchange for some
pecuniary or other gratification.

- Even though this is law, the issue of compromise is routinely raised in appellate courts during
sentencing, bail, or when a petition is filed for quashing the proceedings. High Courts on several
occasions have decried the practice of appellate courts in quashing rape cases on the basis of a
compromise especially when the accused is affluent and the prosecutrix comes from a socially or
economically weaker strata of society.

The relationship between Compromise and Quashing:

- Bakshi argues that The Delhi High Court rightly identified that compromise negotiated between
parties of unequal status is scripted by economic, political, or social dominance.

Compromise and granting of Bail:

- Bakshi also noted that compromise is cited routinely as a ground for bail in rape cases. Eg- In
March 2011, the Patna High Court granted bail since other witnesses did not corroborate the victim’s
statement, and the victim also appeared (presumably before the court) to state that she had
compromised the case with the parties. Confusingly, courts have also declined to grant bail on the
grounds of compromise, but the author argues that the pressure to compromise is not seen as
intimidation of the witness, a refusal to address the underlying violence fuelling the compromise.

Compromise documents as evidence of falsity:

- In courts, compromise documents are produced to introduce scepticism about the veracity of the
victim’s testimony, and to question her conduct or character. Through various examples, the authors
shows how the court’s acceptance of compromise statements marks the increasing reliance on using
compromise as a means to discredit the rape victim.

- In cases of child sexual rape and abuse, it is often the parents that do the compromising. In a
case regarding a rape of a 16-year-old, the parents turned hostile and the prosecutor for the state
argued that it was because they had entered into a compromise. The court refused to believe that
parents would compromise a rape committed against their child, chose to go against the minor’s
 testimony and regard parents’ non-compliance with falsity of claims. The contestation over the
monopoly to compromise suggests that a minor has little control over her own story of subjection.

Compromise as effective in manufacturing the category of the habitue:

- Compromise documents used to prove that victims are ‘habitual in levelling’ allegations of rape
against multiple persons. A case in which the defence attempted to do this by creating stamp
paper documents that contained alleged compromises with the victims’ family but this was
quashed by the court as they expressed concern about the creation of documents that allege
compromise, unreliable witnesses who claim that the victim habitually compromises rape
allegations, failure to lead evidence to ‘prove’ a document, and strategies of discrediting the
victim as a means of discharging the burden of proof.
- The culture of compromise consolidated itself fully in the aftermath of the 1983 and 2002
amendments whereby the defence could not any more directly attack the victim on the basis of
her past sexual history and the burden of proof was reversed in aggravated sexual offenses.
- This suggests to us that the figure of the habitué is manufactured through the fiction of
compromise. Somehow, the possibility of agreeing to a compromise or the concept of it existing
in the situation lends truth to the idea that rape claims can be false, which can only be seen as
arising out of a historical culture of distrust towards women and their experiences.

Claims of a counter case:

- Defence lawyers routinely argue during trials that the charge of rape has been filed against the
accused to secure a compromise in another land dispute or other court cases between the two parties.
The complaint of rape, then, is positioned as a ‘counter case’ in ongoing litigation between two
parties.

- The court has responded favourably to such allegations of the defence counsels, in the examples
given by Bakshi. The court departs from the standardized narrative of compromised false cases by
pointing out that the victim could have been assaulted due to the enmity and rape itself is framed as a
specific form of revenge arising from a pending litigation rather than involving minors and women in
rape cases to seek revenge against parties they have litigation history with.

Intervention at the Panchayat Level:

- We see time and again, that panchayat attempt to appropriate the court’s monopoly to
adjudicate crime by treating rape as a social dispute that can be settled within a village or community.
Further, the panchayat speaks the language of compromise as if it were representative of community
consensus about how the victim should behave.

- The contestation over the monopoly to compromise rape cases suggests that the power to name
the harm of rape is appropriated by the family or the community, wresting from the survivor her
ability to prosecute rape as a crime against her body.
Compromise as a technique of terror:

- While we do not have any statistical accounts of how many murders or suicides follow the
refusal to compromise rape cases, we must recognize that compromise masks annihilating violence.
The violence underlying compromise does not emanate only from the accused or his family but also
often gets articulated by functionaries of state institutions responsible for investigating the case, such
as the police and other bodies like the Central Bureau of Investigation (CBI).

- The involvement of the police in pressurizing the complainant to compromise, as evident from
various appellate judgments, illustrates the terrifying power of compromise as a public secret.

- Satyanarayan @ Chhinga v. State of Rajasthan describes the terrifying story of a rape victim
who was murdered at the behest of the accused when she refused to compromise the case. 51 Far
from being an expression of collective consensus, compromise is predatory on claims to justice, and
shadowed by violence or its threat.

- The normalizing function of the socio-legal category of compromise makes terror look like a
social bargain.

Compromise as an adequate and special reason for commutation of sentence:

- We may recall that after the 1983 amendment it was legislated that courts may ‘for adequate
and special reasons to be mentioned in the judgment’, impose a sentence of imprisonment for a term
of less than the mandatory minimum sentence.

- Over the last two decades, the Supreme Court has accepted compromise as an adequate and
special reason to reduce the sentence to the period of incarceration already undergone in the interests
of complete justice. Although compromise is illegal, the judicial consideration of compromise
petitions is made possible under the extraordinary powers vested in the Supreme Court under Article
142(1) to act for the achievement of complete justice.

- Many judgments, at the appellate and apex level have accepted the reasoning that compromise
signals the prosecutrix’s desire to be relieved of the struggles of litigation and wanting to ‘live a
happy life’. The Supreme Court stated that although rape is not compoundable, yet it accepted a
compromise petition because after all this there was no ‘misunderstanding’ between the accused and
the victim and so it will not be a problem to reduce the sentence of the accused. When a case is
compromised to acquit the accused, it is seen as a compromise of the rule of law. If affidavits are filed
at the stage of sentencing after the fact of guilt has been found, it is perceived to act in the interests of
the accused. It is differentiated from the practice of compromise before the testimony.

- The court’s acceptance of a compromise in rape is an admission that what is a crime in law is in
face a social dispute.
The various facets of a compromise playing out in a case study:

The author presents two prototypical situations based on a reading of ethnographic vignettes that I
documented in the trial court. One is the use of compromise as a tool in the hands of defence lawyers and
the accused to pressure complainants and victims to change their testimonies in a courtroom. The second
is described in terms of love and elopement.

In the instance of love affairs referred to as rape, kidnapping, or abduction, typically the social use of the
rape law is two-fold. The first imperative is to find the couple, leading to the arrest of the man. Second,
the parents attempt to find a suitable husband for the girl even if she is below the legal age of marriage.

Compromise is an important site where the lines of power and authority are re-constituted through the re-
insertion of the woman who experiences rape into the folds of familial, communitarian, and caste-based
normativities. Chowdhry argues that there exists ‘complicity between the perpetrators of violence and the
police about the “justice” done for the sake of “honour”. The complicity of the law in normalizing social
notions of justice entrenched in the politics of honour is constitutive of the socio-legal histories of the
rape law in India. The statements of the couple are written in a language where being in love and being
subjected to forcible sex is seen to coexist within the ambit of seduction. We get a picture of seduction as
forceful, yet the act of penile penetration is framed as gentle, mindful of youth and experience. It is
framed as sexual intercourse, not rape.

Sexualization of the feminine body: The Medico-Legal Report-

The things that are confiscated by the police for forensic examination may be classified into two
categories: first, those extracted from the body of the victim and the accused, such as blood, hair, semen,
and vaginal swabs; and second, the objects that may offer evidence of the crime, like weapons, clothes,
letters, dirt, shoes, or other objects from the scene of crime.

These are confiscated as the property of the state and subjected to forensic examination as samples (
namuna ) bearing traces of the crime. These are then sealed, certified, preserved, and stored, and
subsequently produced in court as muddamal. The panch, are prosecution witnesses who examine these
sites and objects to testify that such evidence was not tempered with-the substance of the panchnamma.
This transition between clothes as personal belongings 93 to clothes as the property of the state classifies
an act of forcible acquisition as mere procedure.

Above mentioned case of elopement referred: At this time, Daya (man)was charged with the offences
defined under ss. 366 (abduction) and 363 (kidnapping). The panchnamma clearly states that this offence
was against the rights of her father as the guardian. It is illicit sex that is the object of criminalization.
Sandhya’s (woman) inner garments and long skirt, worn during sex, were submitted to the panchnamma,
where they describe the clothes by colour and cost and mark areas with semen stains as areas of concern.
Thus, for the purposes of the panchnamma the object of description is evidence of sex on clothes, which
in turn stand for sexualized bodily part. A clear distinction can be seen in the description of Daya’s
clothes- The jeans are described through categories that are unambiguously those of tailoring and
dressmaking. Nor are the stains measured in centimetres. The panch do not say here that they found stains
above the penis. A gendered gaze marks the difference in description. Here the issue is not so much about
consent or custody. It is based on the naturalization of the idea that women’s bodies can be searched for
evidence of sex by the state.

The sexualization of women’s bodies as part of a systemic legal process furthers in the medical
examination of the female body. The prosecutor used the medico-legal certificate to infer that Sandhya
was ‘habituated to sex’. The effect of the complaint was the production of these documents, but their full
disclosure would mean that Purshottambhai would never be able to marry his daughter within the
community, nor would his honour be restored to him. Legality thus has the effect of disrupting caste
sociality and its actualizations of social order.

In this case itself, the resurgence of the case caused great harm to the honour of the prosecutrix and her
family because she had put the matter behind her and gotten married. A resurgence of proceedings meant
admitting that she had premarital sex and we see the father going to great lengths to prevent the
proceedings despite filing the case himself. The judicial archive itself is evoked as a deterrent to
prosecution of the case. Rather than bringing Sandhya’s testimony on record, the prosecutor encourages
the production of its effacement through a compromise. The law itself produces a reason not to prosecute
the case. The prosecutor’s advice does not only lie in the interpretations of the social implications of
prosecuting Sandhya (in terms of the effects on her marriage) but also in the knowledge that the
prosecution would fail her.

A compromise was brokered and all the witnesses turned hostile in court. As Monir’s commentary tells
us, a hostile witness is not merely someone who makes a statement in court that differs from or is
inconsistent with a previous statement, although this could be one of the factors in considering whether a
witness is hostile or not. 105 Nor is a witness necessarily hostile ‘if in speaking the truth as he knows or
sees it, his testimony happens to go against the party calling him’ (Monir 1989: 1601). 106 However, ‘the
witness must appear to be not desirous of telling the truth and it is necessary to regard him hostile for
eliciting the truth. The compromise is essential in transforming it from a sexualized spectacle to a much
more muted affair with many procedures such as cross examination being dropped and refusal to call all
witnesses of the case to testify.

However, in doing so the potential of the trial to sexually humiliate the victim is not displaced. Hence, it
is not enough to look at appellate judgments or even the records that we find in trial courts. For not only
is the picture provided in the judgment isolated from its context, the socio-legal process that produces the
acquittal is effaced from the written record. The court maintains the patriarchal authority of the father by
reintroducing the practices fashioned outside the court and it is through these clandestine routes that the
authority of the law is maintained. Compromise is actively perceived as a mechanism for ‘restoring social
relations in society’. If hostility emerges as the residue in judicial texts, the ethnography of the trial
remains complicit in the making of the public secret.