The Bombay High Court recently ruled that convicted rapists are not eligible for furlough (a temporary release from prison for a specific purpose), saying that the demonstration of judicial kindness should not be at the expense of public safety.

Equating violent rape with murder, Justice Vijaya Tahilramani dismissed the plea of Pundalik Gole, who has been serving a life sentence for raping and sodomizing a minor since 2011.

In her verdict, Tahilramani reaffirmed Rule 4 of the Maharashtra Prisons (Mumbai Furlough and Parole) Rules 2016, which denies furloughs to those convicted of rape, terrorism, narcotics trafficking and other offenses. However, those convicted of murder are eligible to apply for furlough.

Lawyers and experts on gender justice who regularly deal with the criminal justice system have expressed grave reservations about the court’s reasoning. They said the judge should have factored in the realities of the criminal justice and sentencing system, and should not have abided by a rule that violates fundamental rights guaranteed by India’s constitution.

Dubious reasoning?

During the hearing, Gole’s lawyer contended that because the prison rules allow those convicted of of heinous acts like murder to apply for furlough, his client should be entitled to do the same.

The judge responded that what matters is not the seriousness of the offence, but the risk of the convict reoffending if let out of jail. Those convicted of rape, dacoity (banditry), and acts of terrorism fall into the category of offenders who can never be trusted. However, she did not provide any justification for not questioning the legislative wisdom that categorizes some convicts as beyond reformation and others as capable of being positively transformed. No unimpeachable empirical evidence of convicted rapists being more prone to recidivism than others was provided; nor were any authoritative criminological studies showing that rape was as brutal as murder.

There have been instances where other courts have struck down legal provisions that mandate permanent denial of furlough to certain categories of convicts

There have been instances where other courts have struck down legal provisions that mandate permanent denial of furlough to certain categories of convicts. The most recent and pertinent example is the Delhi High Court’s ruling in the case of Dinesh Kumar in 2012. In that case, Justice AK Sikri (who is now a Supreme Court judge) held that it is “illogical” to presume that those categorized as habitual offenders cannot be reformed and hence should be denied furlough.
Speaking specifically about rapists, Sikri held that “by no means can there be a presumption that in all circumstances, the convict would repeat the offence.” In so far as those convicted of serious offenses are concerned, the authorities should be extra cautious, but per se exclusion from furlough violates both the fundamental Right to Equality under Article 14 and Right to Life under Article 21 of the constitution, he stated.

Perpetuating pernicious stereotypes

Kamini Jaiswal, a senior criminal lawyer practicing at the Supreme Court who frequently represents rape survivors, called the prison rule too harsh and arbitrary. She questioned why convicts, who stand a fair chance of having their conviction set aside and being declared innocent on appeal, should be denied furlough. Because the investigation and prosecuting agency is the same in most cases, there are plenty of instances where those from economically and socially marginalized sections of society have been falsely accused by the police, and are convicted because they cannot afford competent lawyers, she said. Why should they be unjustly deprived of their liberty, she asked, while pointing out that there are many cases where even those accused of making false promises of marriage are increasingly being found guilty of rape.

Dr Rukmini Sen, professor of gender and law at Delhi’s Ambedkar University, told Asia Times, “The high court’s ruling hints at unresearched, yet dominant stereotypes regarding rapists, and it unintentionally or otherwise endorses and reinforces the sexual stigma surrounding a rape survivor in particular, and the idea of rape in general. It is as if the court is drawing a conclusion regarding who all (due to various factors) would be vulnerable, and draws up an imagination of a potential rapist perpetually on the prowl.”

Madhu Mehra, director of the Delhi-based gender justice advocacy organization Partners for​ Law in ​Development, criticized both the court and the legislature for presuming that rapists are beyond reformation. As for the “rape as serious as murder” trope, she said that the Indian parliament, by bringing in the 2013 Amendment to the rape laws after the infamous Delhi gang-rape incident in 2012, had removed judicial discretion to prescribe less than the mandatory minimum sentence when it is justified. It also made certain categories of rape on par with murder, by prescribing life sentences to mean all of natural life ​and even the death penalty. This blurring of distinctions is inimical to criminal justice, and the court should have shunned such a false equivalence, she said.

“In finding intelligible differentia, between, say, rape and murder, it is imperative that courts look at objective empirical data. This could illuminate whether rape convicts are more prone to recidivism than those convicted of murder, or more likely to threaten witnesses,” said Supreme Court lawyer Karuna Nundy, who has taken up many noteworthy cases of gender justice. “At the same time, one must be wary of patriarchal tropes that treat rape as a crime worse than murder. The rape survivors I have represented are alive women with full lives who have survived a terrible crime, they’re not “living corpses.”