By Keshab Roy Choudhury
Introduction
In the first part of this two part piece, we saw that the Court’s use of its inherent powers under S.482 of the CrPC in allowing the settlement of non-compoundable offences frustrated the statutory scheme of the CrPC and the policy considerations of the Legislature. In this part, I shall explain how such an approach entrenches the public – private dichotomy that has been severely critiqued by feminists over the years.
Disproportionate impact on women
The Courtwhile exercising its power under S.482has tacitly allowed settlement in non-compoundable cases so that the perpetrators of the alleged crime do not have to face the ignominy of punishment. This approach has a disproportionate impact on women within the family. While the foregoing cases have categorized rape as an offence that is ‘heinous’ in nature which cannot be settled, what about other instances of sexual harassment, such as those covered under S.354 of the IPC? It seems likely that the Court would again decide to categorize an instance of sexual harassment as ‘private’ or against the society.
If the alleged sexual harassment is within the family, it is likely that the Court would condone settlement. This is supported by judicial precedent, which wishes to preserve the familial institution . These decisions are premised on the common law privacy doctrine, which is not an individualized concept, but is founded on the nature of the protected relationship, i.e. the family.Historically, this has shielded the family from state inference even when the request for interference comes from one of the family members. This also helps explain why the recommendation removing the marital rape exceptionunder S.375 of the Indian Penal Code 1860 was never implemented under the Criminal Law Amendment Act of 2013. Thus, what happens in the family must stay in the family, and everyone must resolve their differences amicably without getting their neighbours or the State involved.
On the basis of this understanding, an explicit categorization of public and private offences within the family may be found in State of Madhya Pradesh v Laxmi Narayan, wherein the Court held that that ‘the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves.’
Thus, cases of alleged sexual harassment of a woman by other male members of her family are far more likely to be treated as ‘private’ offences than similar instances between a woman and a stranger, given the judiciary’s attitude towards the family. Subsequently, the former is more likely to be quashed in light of ‘settlement’ than the latter, in order to secure the family. This is extremely problematic. Not only would the Court condone the actions of a potential sexual assaulter, it would also insulate certain sexual assaults (those within the family) from the penal consequences of law, when in reality, the nature of sexual assault remains the same. Thus, a woman who is sexually assaulted by her family members would be treated differently than a woman sexually assaulted by a stranger, when in reality there is nothing inherently different in the sexual assault that should warrant a separate treatment.
The logic behind settlements
At this juncture, it is crucial to remember that one of the core considerations the Court bears in mind, while deciding to quash proceedings based on the settlement of non-compoundable offences, is the likelihood of a conviction. The logic seems to be that in light of a settlement, the chances of conviction would be low and the accused would unnecessarily be subjected to vexatious proceedings. This is unjustified for three reasons. First, the HC should refrain from giving a prima facie decision when the evidence is yet to be collected and fully appreciated before a Court. It would not be proper for the HC to analyze the case of the complainant in the light of all probabilities to determine whether a conviction would be sustainable, and on this basis, arrive at the conclusion that the proceedings are to be quashed. In the absence of a proper scrutinization of evidence, the Court may risk short-circuiting provisions of the CrPC and the Evidence Act that ensure a fair trial for the victim.
Secondly for this to hold true, the Court must necessarily assume that the accused and the victim have equal bargaining powers to the settlement. The Court’sfacilitation of settlements in certain instances allows some accused to circumvent the ordinary rules of the criminal justice system by flexing their socio-economic muscles. It might certainly be easy to claim that the victim and the accused came to a peaceful settlement, however it is often difficult to gauge the circumstances in which such a settlement is obtained. The circumstances surrounding the settlement must closely be scrutinized with the intention of securing justice for the less powerful to the settlement. Hopefully, the Court will consider this while quashing proceedings, otherwise, the logic of deterrence as explained by Sikri J in Narinder Singh is then effectively rendered useless.
Thirdly, the Court’s characterization of certain offences as private, specifically those arising out of marriage or family disputes, is an inherently patriarchal understanding of the law, demarcating the ‘public’ and ‘private’. As per the liberal theory, the sphere designated as public constitutes the appropriate terrain of regulation, whereas that designated as private is treated as beyond the purview of the state. Women are relegated to the private sphere, characterized by the home wherein women are expected to provide comfort, affection and rear children. This distinction is based on gendered differences and contributes to the oppression of women, as it has led to the devaluation of their efforts vis a vis the men in the public sphere.In a familial setup, men inflict violence on women in order to exercise their power and uphold gendered differences. Coupled with the common law privacy doctrine which assumes ‘natural’ familial instincts and common interest will ensure the welfare of all, state non-interference condemns many women to a routine cycle of violence within the home.
An important feminist critique to the public-private classification is that those institutions and activities relegated to the private sphere should not be unaccountable under the garb of privacy as those who can claim something is private can effectively argue for state inaction. It is to be noted that S.498A was added to the IPC in order to ensure some accountability and bridge the public-private divide. By characterizing offences arising out of matrimony as those of a civil nature is to betray the object of the statute and to relegate women to the private sphere without adequate protection.
As per the NCRB, 11,931 cases under S.498A were disposed of without trial, with 9,693 cases compounded and 1,190 being quashed in 2018. It is no surprise that the conviction rate stands at an astonishingly high rate of 13% as of 2018. By allowing the husband or other male relatives to settle with a survivor of cruelty, it not only forgoes any possibility of convicting them, it may also subject the woman to even greater harassment. Reporting of instances of domestic violence is not done, primarily fearing social humiliation and more abuse from partners, which explains why nearly 74% of women do not report such cases.Domestic violence is rarely communicated, and when it is, family and friends are more likely to be preferred over formal institutions, highlighting inherent distrust in the latter. Thus, when formal institutions are resorted to and the Court condones a settlement between the abuser and the survivor, the chances of revictimization are high, as it is viewed as an instance of airing dirty laundry in public.
If the allegations recorded in the FIR underS.498A or S.354 prima facie constitute an offence, the Court must follow the precedent laid down in Bhajan Lal and several other cases and let the prosecution continue. Settlement should be of absolutely no concern at any stage. However, if the Court is to continue taking settlement into account, the Court risks rendering Bhajan Lal infructuous as well. The Court ends up legitimizing suffering through its use of inherent powers, and effectively forces women to stay with their abusers. The cumulative effect would thus be the Court denying a woman a right to a fair trial, a component of access to justice, which is an important fundamental right under A.14 and 21 of the Constitution.
Conclusion
I have outlined the SC’s interpretation of the HC’s inherent powers under S.482 and have discussed its interpretation in respect of allowing settlements to take place for non-compoundable offences. I have also analyzed its implications on the statutory scheme of the CrPC and have highlighted its discriminatory effect towards women within the family. The inherent powers of the HC are extremely vast and are to be used sparingly. However, in its aim to secure justice, it must not nullify other sections of the CrPC, specifically S.320. Instead of construing the section as a strictly overriding section, it must be construed as harmoniously as possible with other provisions so as to respect the object of the statute and policy considerations of the Legislature. It is a very fine balancing act, for the Court should not be restrained to exercise its powers to correct injustice. However, in light of the arguments laid forth, precedents laid down in Laxmi Narayan and other cases must be revisited by a larger bench of the SC to correct its disproportionate impact towards women. Until then, the Court, in its effort to secure justice would, in certain cases, instead perpetuate greater injustice.
[ The author is a second-year student studying at Jindal Global Law School, Sonipat.]
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