Discretion, Discrimination and the Rule of Law

322 Pages·2016·2.716 MB·English

by  Mrinal Satish

Discretion, Discrimination and the Rule of Law
Discretion, Discrimination and the Rule of Law addresses and analyses the rape
sentencing regime in India. By studying all rape cases decided by High Courts
and the Supreme Court of India between 1984 and 2009, the book demonstrates
that despite law reform, ‘myths’ and ‘stereotypes’ about rapists and rape
victims that used to be embedded in the rape law have in many cases merely
shifted from the charging and trial stages to the sentencing stage. The book
further argues that rape myths and stereotypes i nfluence sentencing, l eading to
unwarranted disparity.
The book undertakes a theoretical examination of the purposes of
punishment, the fundamentally overlapping nature of the stages of the criminal
process, and the meaning of ‘disparity’. Based on a comparative study of
sentencing reforms, and an examination and analysis of recent efforts to reduce
sentencing disparity in a variety of common-law jurisdictions such as the UK,
Israel, and the US, the book proposes an institutional reform – an independent
sentencing commission that would establish detailed, presumptive guidelines
for rape sentencing – as a solution to the problem of unwarranted disparity in
rape sentencing in India.
The book sets forth what sentencing guidelines for rape in India might
provide, discussing factors that should be considered relevant and irrelevant in
the sentencing of rape offenders. The underlying theme of the book is to bring
rule of law to criminal sentencing in India.
Mrinal Satish is Associate Professor of Law and Executive Director, Centre for
Constitutional Law, Policy, and Governance at the National Law University,
Delhi. His research interests include sentencing, gender and the law, medical
jurisprudence, empirical analysis of law, excessive undertrial and pre-trial
detention, and studying the impact of the criminal justice system in its interface
with vulnerable and disempowered groups.
Downloaded from https://www.cambridge.org/core. Teachers College Library - Columbia University, on 26 Jun 2020 at 21:37:13, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9781316471784
Downloaded from https://www.cambridge.org/core. Teachers College Library - Columbia University, on 26 Jun 2020 at 21:37:13, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9781316471784
Discretion, Discrimination and
the Rule of Law
Reforming Rape Sentencing in India
Mrinal Satish
Downloaded from https://www.cambridge.org/core. Teachers College Library - Columbia University, on 26 Jun 2020 at 21:37:13, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9781316471784
University Printing House, Cambridge CB2 8BS, United Kingdom
One Liberty Plaza, 20th Floor, New York, NY 10006, USA
477 Williamstown Road, Port Melbourne, vic 3207, Australia
4843/24, 2nd Floor, Ansari Road, Daryaganj, Delhi – 110002, India
79 Anson Road, #06–04/06, Singapore 079906
Cambridge University Press is part of the University of Cambridge.
It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning and research at the highest international levels of excellence.
www.cambridge.org
Information on this title: www.cambridge.org/9781107135628
© Mrinal Satish 2017
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2017
Printed in India
A catalogue record for this publication is available from the British Library
Library of Congress Cataloguing in Publication Data
Names: Satish, Mrinal, author.
Title: Discretion, discrimination and the rule of law : reforming rape
sentencing in India / Mrinal Satish.
Description: New York : Cambridge University Press, 2016. | Includes
bibliographical references and index.
Identifiers: LCCN 2016002559 | ISBN 9781107135628 (hardback)
Subjects: LCSH: Rape--India. | Punishment--India. | Rule of law--India. | Sex
discrimination--India.
Classification: LCC KNS4202 .S38 2016 | DDC 345.54/02532--dc23 LC record available at
http://lccn.loc.gov/2016002559
ISBN 978-1-107-13562-8 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy
of URLs for external or third-party internet websites referred to in this publication,
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
Downloaded from https://www.cambridge.org/core. Teachers College Library - Columbia University, on 26 Jun 2020 at 21:37:13, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9781316471784
This book is dedicated to my father, Dr S. H. Satish, who always encouraged,
guided and supported me in all my pursuits, but did not live to
see me finish this one.
Downloaded from https://www.cambridge.org/core. Teachers College Library - Columbia University, on 26 Jun 2020 at 21:37:13, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9781316471784
Downloaded from https://www.cambridge.org/core. Teachers College Library - Columbia University, on 26 Jun 2020 at 21:37:13, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9781316471784
Contents
Acknowledgements ix
Abbreviations xi
1 Introduction 1
2 An Introduction to the Indian Criminal Justice System 15
3 The Law and Practice of Rape Adjudication in India 34
4 Rape Sentencing: An Empirical Analysis 61
5 Myths and Stereotypes in Rape Prosecutions 106
6 Structuring Sentencing Discretion: Guideline Models and Approaches 115
7 Sentencing Discretion in India: The Need for Structuring 161
8 Sentencing Guidelines for Rape 187
Appendix 1: List of Cases Studied for Empirical Analysis 208
Appendix 2: T emplates of Format Used for Medical Examination of
Rape Victims 234
Appendix 3: O verview of Variables Considered for Empirical
Study and Data Obtained 240
Appendix 4: Output of Regression Analysis 258
Appendix 5: Charts 279
Table of Cases 285
Bibliography 294
Index 303
Downloaded from https://www.cambridge.org/core. Teachers College Library - Columbia University, on 26 Jun 2020 at 21:37:14, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9781316471784
Downloaded from https://www.cambridge.org/core. Teachers College Library - Columbia University, on 26 Jun 2020 at 21:37:14, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9781316471784
Acknowledgements
This book is a modified and updated version of my doctoral dissertation
submitted to Yale Law School in 2013. The idea for the project arose from
two courses that I attended as a LL.M student at Yale Law School in 2006–07.
Learning about unwarranted disparity in sentencing in the United States and
other parts of the world made me think about the problems facing sentencing
in India. I developed the proposal for this project under the guidance of the
professors who taught these courses – Professor Kate Stith, Judge Nancy
Gertner and Professor Dennis Curtis. I am grateful to all three of them for their
support and guidance.
My dissertation at Yale Law School was supervised by Professor Kate
Stith, the Lafayette S Foster Professor of Law. Her detailed feedback helped
me think about the ideas I had, the methodology I adopted, and the manner
in which I ultimately presented my work. I am grateful to Professor Stith for
her unflinching support, guidance, and patience. My heartfelt gratitude is due to
the readers in my dissertation committee, Professor Peter Schuck and Professor
Steven Duke, for their feedback and comments on earlier drafts of this work.
My empirical study is the core of this project. Having no background or
training in statistics, I had to learn the basics of econometrics and statistics for
analyzing the data I had collected. Nancy Hite (then, a PhD candidate at Yale)
and Miguel de Figueiredo (then a 3L at Yale Law School) helped me understand
the basics of statistical analysis. I genuinely appreciate the time and effort that
Miguel put in to understand my project and to help me formulate a framework
for statistical analysis. I am also grateful to Shayak Sarkar (then a JD Candidate at
Yale Law School) and Brendan Lim (then a JSD Candidate at Yale Law School)
for answering my repeated queries about statistical methods.
My thanks are also due to a number of my fellow-doctoral candidates at Yale
Law School who attended my presentations at work-in-progress colloquia and
gave me feedback. Leora Katz in particular helped me by translating the Israeli
sentencing legislation and in understanding the Israeli system. I am also grateful
Downloaded from https://www.cambridge.org/core. Teachers College Library - Columbia University, on 26 Jun 2020 at 21:37:14, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9781316471784
x Acknowledgements
to Durba Mitra, Assistant Professor of History, Fordham University (then, a PhD
candidate at Emory) for discussions on issues relating to medical jurisprudence.
I am grateful to the team at Cambridge University Press, in particular
to Qudsiya Ahmed. I would also like to thank Anwesha Rana, Suvadip
Bhattacharjee, Shikha Vats and Jayati Das.
I am also grateful to participants and discussants at various conferences,
seminars, and workshops, where I presented chapters of this work.
Finally, my family has been a constant source of support. My mother, Muktha
Satish, and my parents-in- law, Prakash Chandra and Ranjana Chandra, provided
me with encouragement throughout this process. I would also like to thank my
spouse and colleague, Aparna Chandra, who despite being extremely busy with
her own doctoral work and other academic commitments read multiple drafts of
my chapters, and provided me with critical feedback. She served as a sounding
board for my ideas, and justifiably nipped the crazy ones in the bud.
Downloaded from https://www.cambridge.org/core. Teachers College Library - Columbia University, on 26 Jun 2020 at 21:37:14, subject to the
Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/CBO9781316471784