Undermining justice for victims of sexual assault

On December 25, 2023, the President of India gave assent to the three new criminal law bills brought in by the Narendra Modi government: the Bharatiya Sakshya Adhiniyam, 2023, replacing the Indian Evidence Act, 1872; the Bharatiya Nagarik Suraksha Sanhita, 2023, replacing the Code of Criminal Procedure, 1973; and the Bharatiya Nyaya Sanhita, 2023, replacing the Indian Penal Code, 1860. The new criminal laws will come into force on July 1, 2024.

While deliberating over the bills in Parliament, Union Home Minister Amit Shah emphasised that the new criminal laws are framed with justice for the victims as the central focus. However, the new laws have missed an opportunity to provide visible justice to rape victims. The Modi government has overlooked various aspects of rape cases, such as granting bail to the rape accused and allowing marriage between the victim and the abuser, thereby impacting the delivery of justice. This creates a gap in the overall criminal justice system even before the implementation of the new laws.

Over the past few years, several high courts have granted bail to rape accused on the condition of marriage with the victim. For instance, the Allahabad High Court in the case of Monu vs. State of UP (2022) granted bail to the rape accused, subject to the condition of marrying the victim and giving her all the rights as a wife. Similarly, the Bombay High Court in ABC vs. State of Maharashtra (2022) ordered that the accused be released on bail with the stipulation that he would marry the prosecutrix if she was found within a year (the prosecutrix was missing at the time of the court’s order). 

Earlier, the Orissa High Court
in Gyanaranjan Behera vs. State of
Odisha (2020) and the Madhya Pradesh High Court in Suraj Kushwah vs. State of MP (2020) had passed similar orders. 

As per the Indian bail law, the court has the discretion to grant bail for non-bailable offences. However, such discretion is to be exercised judiciously, depending on the nature and gravity of the offence and the likelihood of the accused obstructing or evading the process of justice. The more grievous the crime, the greater the chance of a bail rejection.

Additionally, the court has the power to impose conditions when an accused is released on bail as provided under Section 437(3), Section 438(2), and Section 439(1) of the Criminal Procedure Code (Section 480(3), Section 482(2), and Section 483(1) of the Nyaya Sanhita, respectively). These conditions include accused attendance before the court, refraining from committing any offence, not tampering with evidence, and other conditions deemed necessary in the ‘interests of justice’.

While interpreting the phrase ‘interests of justice’, the Supreme Court of India in Kunal Kumar Tiwari vs. State of Bihar (2018) held that “there is no dispute that Sub-clause (c) of Section 437(3) allows courts to impose such conditions in the interest of justice. We are aware that such wording is capable of accepting a broader meaning. But such conditions cannot be arbitrary, fanciful, or extend beyond the ends of the provision. The phrase ‘interest of justice’ as used under Sub-clause (c) of Section 437(3) means ‘good administration of justice’ or ‘advancing the trial process’ and inclusion of broader meaning should be shunned because of purposive interpretation.”

Marriage as a bail condition has the effect of absolving the accused of their guilt and inadvertently protecting the perpetrators, hindering the victim’s pursuit of justice. Such bail orders are also inconsistent with the principles of justice, equity, and good conscience.

The Delhi High Court in Mohd Aman Malik vs. State NCT of Delhi (2023) rightly expressed concern over a worrying trend in sexual assault cases in which an accused marries the victim to avoid criminal charges and forsakes the survivor after securing bail or quashing of the case.

On granting bail to sexual offenders, the Allahabad High Court in Imran vs. State of UP (2021) observed that bail conditions antithetical to fair justice should not be imposed.

Rape is a heinous offence that violates fundamental human rights, including the dignity and privacy of women. When rapists are allowed to marry their victims without facing legal consequences, it weakens the deterrent effect of the penal law. Allowing such marriages will potentially lead to a lack of faith in India’s justice system.

Even the Supreme Court in Aparna Bhat vs. State of Madhya Pradesh (2021) observed, “Using rakhi tying as a condition for bail transforms a molester into a brother by a judicial mandate. This is wholly unacceptable and has the effect of diluting and eroding the offence of sexual harassment. The act perpetrated on the survivor constitutes an offence in law and is not a minor transgression that can be remedied by way of an apology, rendering community service, tying a rakhi or presenting a gift to the survivor, or even promising to marry her, as the case may be.” 

The court further held that “granting bail, subject to such conditions, renders the court susceptible to the charge of re-negotiating and mediating justice between confronting parties in a criminal offence and perpetuating gender stereotypes.”

The formation of marital unions between rape victims and offenders contributes to the normalisation of sexual violence in our society. Such unions lessen the gravity of the sexual offences and, hence, reinforce the patriarchal norm that marriage can condone the criminal act. It has the effect of compounding a heinous offence and takes away the agency and autonomy of the woman. 

In the coming years, we can only hope that the courts follow the dictum of Aparna Bhat. The Modi government must reconsider providing justice to rape victims vis-à-vis new criminal laws.

(The writer is an advocate based in Jammu and Kashmir)