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