Counting Bars Or Tying A Thali? – By Sanjay Pinto

Wooing a girl by first teasing her is an all too familiar template in Indian Cinema. What if it’s ‘unrequited’ love? The outrageous ‘rape and marry’ happily-ever-after ending in films is watched by audiences with a willing suspension of disbelief and hopefully lambasted by critics. What makes my blood boil is that this new low has been mooted in the real world by quarters that are meant to uphold the Rule of Law.

Counting Bars

A cursory glance at Sec 375 of the Indian Penal Code (IPC) will reveal that rape is a heinous, cognisable and non-compoundable offence. Shorn of legalese, there can be no negotiation or mediation between the offender and the victim. If the charge is proved, the culprit’s new address will be a state prison. To even suggest some sort of ‘out of court’ settlement is weird and militates against the very basis of criminal jurisprudence. A crime must have deterrence, not an incentive. The criminal deserves punishment, not a bargain. The victim needs justice, not sympathy. Judges and statutory bodies need to convict or acquit or censure, not settle. A property or monetary dispute between parties can be resolved through mediation. There has been unanimity among right thinking sections that a crime against the human body and soul cannot be treated on par with a civil dispute. That’s why we have separate Codes of Criminal Procedure and Civil Procedure.ediation for a rapist is not just a regressive idea but dangerous as well. It makes the victim a trophy for the perpetrator and takes away the fear of penal consequences. And where is the victim’s nod for mediation? Even in an arbitration proceeding, an arbitration clause needs to exist in the agreement.

That said, in the measure of our justifiable abhorrence for crimes, especially against women and children, we do need to make a distinction between rape using criminal force as in the case of Nirbhaya and statutory rape which is consensual sex with a person below a prescribed age. Under the IPC, it is 16 years. Now this brings me to another related point. The exception to rape under the IPC is in direct conflict with the definition of a ‘child’ under clause d) of the Protection of Children from Sexual Offences Act (POSCO). Under this enactment, a child is defined as a person below 18 years. As far as married couples are concerned, if the wife is not less than 15 years, it is not rape. What about girls forced into early marriage? Where do they stand between 15 and 18 years? There are also false cases filed against men. Laws can be misused. These are areas that cry for solutions. Let our authorities mull over these lacunae instead of filmy compromises.

I keep hearing statements at seminars that ‘we have come a long way in dealing with crimes like rape’. Have we? Just last year, a veteran political leader in India’s biggest state shocked us all with his “boys will be boys, they will commit mistakes” gem trivialising rape. Then we hear of the moronic cause and effect equation between the way a woman dresses and rape. And what about that ‘painted and dented’ insensitive remark? Let me lay it out for these blighters. Even being wrapped up like an egyptian mummy is no protection against lecherous eyes. Absence of defence is not consent. Merely because there are no external injuries, it does not weaken a victim’s testimony. Physical wounds may heal. Psychological scars never do.

Our response to such crimes is also very knee jerk. By all means hold placards at candle light vigils. But a crowd at a landmark will not directly help a victim. It will help TV channels and newspapers get fodder for coverage. Ten volunteers to accompany a victim to court during each of those innumerable hearings will be a more meaningful display of support, especially when the accused will attempt intimidation.

The frivolous and utterly reprehensible film storylines can influence the common man. Judges and people in authority must be made of sterner stuff. And why do we selectively get influenced by such stone age film It should be conclusions like a rapist marrying the victim? Why don’t we get influenced by films where women learn martial arts and give their abusive husbands their just desserts? Remember Jennifer Lopez in ‘Enough’? Or the public giving criminals, even drunkards causing a nuisance, a sound thrashing? We ought not to get swayed by vigilante justice because there is the police for enforcement and there are courts to try offences. We can’t take the law into our hands. Neither can a rapist take a thali into his hands and tie it around a hapless victim. Those hands should be counting bars. Period.


Sanjay Pinto is a Lawyer, Columnist, Author & Former Resident Editor – NDTV 24×7