Nayonika Sen

B.A. LL.B. (Hons.) 2017

Section ‘E’
Jurisprudence I

ADJUDICATING RAPE:
JUDGES, JUDGING, AND THE HART/DWORKIN DEBATE

INTRODUCTION

Precedent in Indian case-laws on rape have begun to indicate a clear shift; from
adjudication to sentencing. With the invocation of feminist jurisprudence and argumentation by
Feminist Legal Theorists and lawyers in courtrooms, it is no longer acceptable for judges to cite
traditionally sexist lines of reasoning to justify acquittals, or in the assessment evidence. On a
closer inspection of the trajectory of case-laws it is revealed that judges have slowly transitioned
from blatant acquittals to a subtler form of adjudication through sentencing. In doing so, they
have begun to create ‘new definitions’ of the parties; from ‘plaintiff’ or ‘victim’ to ‘accuser’, and
from ‘defendant’ or ‘perpetrator’ to ‘accused’. Instead of delving into the character of the
woman, as was the prior norm among many judges at various levels, the culture has shifted into
looking at the socio-cultural and class background of the ‘perpetrator’, where they are now the
victims of a lawsuit for what is considered a ‘small mistake’; a ‘human error’. Have the judges
presiding over these cases ‘created new laws or party-identities’? Are the victim and perpetrator
reversed? What then is the duty or the role of a judge in matters where the facts are murky, and
the law is insufficient or silent? Or, what exactly can the judges be seen doing in these matters?
Are they concurring or challenging the theories and discourses on the role of judges in the
judiciary?

This essay will attempt to answer these questions by exploring the jurisprudence of
H.L.A. Hart and Ronald Dworkin, on the role of judges and its indications of the nature,
substance, and intention of the judicial systems.

JUDGES AND THE ACT OF JUDGING

 What does it mean to be a judge in a court of law? Or, rather to ‘adjudicate’ upon a
matter in court? According to Black’s Law Dictionary, to adjudicate means to “To settle in the
exercise of judicial authority. To determine finally. Synonymous with adjudge in its strictest
sense.”iand to ‘adjudge’ means to, “Pass on judicially, to decide, settle, or decree, or to sentence
or condemn.”ii. The act of adjudication hence includes not just coming to a decision regarding
guilt or innocence, but the process also encompasses decisions regarding the quantum of
punishment; i.e., sentencing. When guilt is ascertained in cases, what are the contributing factors
in determining which crime is more heinous than the other, and what are the distinguishing
factors that differentiates a minimum prescribed punishment, life imprisonment, or the death
sentence? When these questions are posed, a larger question arises as to the nature of the role of
the judge. Is the judge merely taking existing laws as is and applying it to a set of facts? Or, is
there a degree of discretion exercised by them? Precedent inclines towards the latter. Two
contemporary competing theories on adjudication and the role of judges were provided by
Professor H.L.A Hartiii and Professor Ronald Dworkiniv

The Hart-Dworkin Debate: A brief examination of the contending theories

To best understand the perspective on law taken by Hart, we must first understand his
distinctions between what he considers to be ‘rules’ and the ‘rule of recognition’. Hart claims
that rules are commanding statements that always apply to a ‘class’/’category’ of things or
people or acts.1 He also states, that one of the key ways in which the law or the rule in question is
viewed is in what is considered ‘black letter law’; i.e., “to freeze the meaning of the rule so that
its general terms must have the same meaning in every case where its application is in
question.”2 Wherever there is a question as to the application of the said rule and is
indeterminate, at such a time, the rule is said to have an ‘open texture’. 3 Taking an illustration of
the notice/rule stating the ban on vehicles in the park, Hart claims that one handicap that human
legislators face is ‘our relative indeterminacy of aim’. It then befalls the judge to take into
account the ‘aim’/ ‘intention of making a law such as that is. Clear cases – motor-car, motor-
cycle, buses etc. are not the points of contention. The intention of the law could here, be

1
H. L. A Hart, Joseph Raz and Penelope A Bulloch, The Concept Of Law (3rd edn, Oxford University Press 2012).
2
Ibid.
3
Ibid.
understood to maintain the general peace and order in the park. Then, situations/circumstances
arise where even the intention of the law becomes unclear; in the case of a toy motor car or the
ambulance. This is his ‘open texture’.

He roots the validity of any rule, the ratio decidendi4, in ‘recognition’. He claims, that any
rule finds its foundation in its general acceptance. For example, to measure a room two
measuring tapes X and Y are used. X measures the length of the room as 10 metres. Y measures
the same length as 12 meters. How does one determine the ‘correct length’? Since concepts like
‘size’ and ‘length’ are abstract, a consensus must be arrived at where a certain standard criterion
of the determination of length is used. Here, the fundamental unit of length in the metric system
and in the International Systems of Units is metre, which the Standard meter of Paris. Both the
measuring tapes, X and Y must then be compared to the Paris standard and only then can the
validity of X and Y be ascertained. The Paris standard meter is valid by the rule of recognition,
scientists across the world have ‘Recognised’ it as the standard. The rule of recognition thus
becomes a ‘social fact’. What about precedents and the validity of precedents? Hart claims that
there is no certainty when it comes to the concept of a ‘valid legal precedent’. Secondly, he
states, there is no authoritative or uniquely correct formulation of any rule to be extracted from
cases.5

Hart says,
“The open texture of law means that there are, indeed, areas of conduct
where much must be left to be developed by courts or officials striking a
balance, in the light of circumstances, between competing interests which vary
in weight from case to case.”6

The standard ‘rule’ leaves much unresolved or in the gray areas in terms of determining final
verdicts. In such cases, Hart claims that discretion must be given to judges, to exercise their own
‘expertise’ and come to a final verdict. The question then persists is, ‘What exactly do judges do
if not apply the law as it exists?’ or ‘Is the discretion of the judge solely their own, or are they
guided by certain other pressures?’ Hart tries to answer these questions through the example of
any game.7 A game has rules, which are known to the players participating and to the official

4
Ibid.
5
Ibid.
6
Ibid.
7
H. L. A Hart, Joseph Raz and Penelope A Bulloch, The Concept Of Law (3rd edn, Oxford University Press 2012).
scorer. For the purposes of the game, the score is what the scorer says it is. However, the rule for
scoring remains and it is the duty of the scorer to apply it as best as he can. The former statement
would be false is there were no prior rules to the game and everything hinged upon the discretion
of the scorer. If it were merely up to the scorer, he, by virtue of being human, would be bound to
make mistakes or errors. Statements made by the players here would not be a ‘prediction’ of the
results, if contradictory with scorer’s ruling, but merely unofficial application of the rules that
don’t truly have any significant bearing upon the results. In court, cases which have an ‘open
texture’ and is left to the discretion of the judge, still have to abide by the ‘core meaning’ of the
rule in question to be applied. This ‘core’ meaning is one that even the scorer is not allowed to
depart/deviate from; it is the penumbra of uncertainty where the judge/scorer must exercise their
discretion.8

‘The adherence of a judge is required to maintain standards, but he does

not make them.’9

Dworkin has a set of assertions that serve as a pretext to his theory. First he claims that there
is a ‘uniquely correct’ legal result in every judicial case. Second, he claims that judges do not
have the discretion to select one or more equally permissible results. And thirdly, that the legal
system is one of fully determined entitlements; that litigants don’t lobby as is done in the
parliament, but rather along the lines of principles and not some goal to be reached in society. 10
On the issue of ‘discretion’ and application of standards as argues by Hart, Dworkin says that
standards are of two kinds. First, authoritatively binding on the judge, and hence, ‘law’. And
two, permissible standards, i.e., ‘extra-judicial’.11 Dworkin claims that there are certain standards
that the judges must abide by not because they are law, but because it part of what it means to be
a judge.

8
Ibid.
9
Ibid.
10
E. Philip Soper, 'Legal Theory And The Obligation Of A Judge: The Hart/Dworkin Dispute' (1977) 75 The
Michigan Law Review.
11
Ibid .
 Dworkin’s main argument hence, is this: A legal system is not merely comprised of rules,
within which standards are contained. But rather a legal system is a complex one that includes
rules, principles, and policies. He states that principles are as much part of the legal system as are
concrete rules. In certain cases, principles even override the rules. In the case of Riggs v.
Palmer12 it was ruled that the murderer could not inherit under his victim despite an insurance
clause that claimed him as the recipient. Dworkin says that this wasn’t an ‘exception’, but rather
the legal principle that ‘No man should profit from their own wrong’13 was applied. Rules don’t
exist in vacuum, or in isolation. What then is the distinction between rules and principles? He
claims that rules apply in an ‘all-or-nothing’ manner; they automatically decide cases. But
principles have a ‘dimension of weight’ – they provide reasons for deciding a certain way.
Hence, there is no true discretion that the judge applies; all decisions are guided by principles,
and they are a valid part of the law. In certain cases, the words of the rule itself sometimes
manifest as principles.14 For example, ‘unreasonable restriction of trade’, does not specify what
constitutes something as unreasonable. But this law, then acts as a legal principle; a guide. In
‘Hard Cases’15, Dworkin claims, there will always be a single ‘right decision’ that a judge can
make after assessing facts and evidence. However, he claims that it is only Hercules who can do
in every case.

RAPE ADJUDICATION IN INDIA: SENTENCING

Sexual violence, especially rape, is in most likelihood one of the most underreported crimes
in India. S. 375 of the India Penal Code defined rape, which is the legislation directly affecting
rape adjudication.16 In his book, ‘Discretion, Discrimination, and the Rule of Law: Reforming
Rape Sentencing in India’17, Dr. Mrinal Satish18 makes a slew of arguments which delve into the
nature of adjudicating rape and sentencing in India. In a lecture series, ‘Feminism and Law’ held

12
115 N.Y. 506, 22 N.E. 188 (1889).
13
115 N.Y. at 509, 22 N.E. at 190.
14
Soper (n 10)
15
Ronald Dworkin, 'Hard Cases' (1975) 88 Harvard Law Review.
16
Indian Penal Code, 1860
17
Mrinal Satish, Discretion, Discrimination And The Rule Of Law (1st edn, Cambridge University Press 2017).
18
Mrinal Satish is an Associate Professor of Law at the National Law University, Delhi, where he is also the
Executive Director of the Centre for Constitutional Law, Policy, and
Governance.
at O.P. Jindal University19, he laid down certain myths and stereotypes employed by Courts to
come to final verdicts. In the process, judges have ‘created’ new identities of what makes a
victim of rape and who an actual ‘perpetrator’ is.

Indian Courts have, for the longest time, tried to establish a key distinction between ‘Indian
Women’ and ‘Western Women’, where the former are ‘tradition-bound’ and ‘Submissive’.
According to Legal Scholars such as Ratna Kapur, the courts have repeatedly argued that the
ideal rape victim is one who is ‘chaste, pure, monogamous, honourable, and confined to the
domestic sphere’. Anything short of these credentials and her ‘worthiness’ as a victim
diminishes. The Court not only assesses facts and evidence, but also looks at the conduct of the
parties in court, where the grand performance of appearing in court is also judged. The raped
woman must feel “a deep sense of deathless shame”.20 The courts have reinforced the notions of
negative consent, where acquiescence was understood to be a ‘yes’. Even, class stereotypes
about women have been propagated, where courts have argued that women of the working
classes are strong and resilient and would ‘fight’ their attackers, where as women in the upper
classes may faint of ‘fright or exhaustion’.

In the adjudication of rape in India, courts have also appropriated a form of medical
jurisprudence that necessitates injuries sustained on the body of the victim as ‘proof’ that the
rape was truly un-consensual and that she tried to physically fight them off. Injuries, then,
become a prerequisite of rape. The loss of chastity and purity are the true ‘harms’ that victims
suffer. And this narrative of the courts is revealed through the nature of their sentencing. A
distinct pattern appears when the ‘character’ of the victim and the perpetrators are concerned. If a
woman is unchaste, it affects sentencing. Men who raped married women were given lesser
sentences than men who raped unmarried women because the unmarried woman’s chastity was
compromised whereas a married woman was no longer ‘chaste’ as she had engaged in sexual
intercourse before. Relatives and acquaintances received shorter sentences. High courts have
reduced sentences in cases of elopement saying the offence had been committed because of
"reciprocal passion" and "out of youthful exuberance". Currently, the judge’s personal penal

19
Dr. Mrinal Satish, 'DISCRETION, DISCRIMINATION AND THE RULE OF LAW: REFORMING RAPE
SENTENCING IN INDIA' (O.P. Jindal Global University, 25 th Oct, 2018).
20
Rafiq vs. State of U.P. 1891 AIR 559, 1891 SCR (1) 402
philosophy determines the sentence the offender gets. This, leads to unwarranted disparity, and is
also unfair both to the accused and to the victim.

In the case of Madan Gopal Kakkad v. Naval Dubey And Anr21, the Court although ruling in
favour of the victim, specifically mentioned that she was from an elite society in Jabalpur and
merely 19 years of age; her prospects of marriage are ruined. And that, was the ‘worst’ effect of
rape on the girl, not her bodily integrity but the fact that she would be ‘ruined’ before her
prospective husband. Judges have gone on to make statements,

“What is lost by the rape victim is face”

In this case State of U.P. v. Chhoteylal22, the Court conceptualized rape as a crime against
honour, chastity, and marriagebility. Two types of stereotypes are usually propagated;
descriptive and prescriptive; how the parties are, and how the parties should be. A few of the
myths and stereotypes include: labeling accused persons as ‘monsters, beasts, etc.’ and initiating
the process of ‘othering’ them; as people who aren’t among those who the civilized mingle with.
To the contrary, rape statistics prove time and again that perpetrators are usually acquainted with
the victims. Rapes committed by acquaintances are less traumatic than those by strangers. The
victim promptly reports the crime, she is visibly emotional while testifying, she will physically
resist. A no means a no, and a ‘feeble no’ means a yes; asserting that there are different standards
of consent depending upon the societal/educational status of the woman in question.23 In the
Raja vs. State of Karnataka24 judgment, the court delved into what the ‘appropriate’ conduct of
the victim post-rape should be. It said that the ideal and initial response of the victim would be to
confide in their mother and friends, and not going back to the place of assault and confront the
rapist. In Rameshwar v. State25, the court ruled that although the victim wasn’t an ‘accomplice’
to her own rape, but the same standards would apply to judge the victim. S. 155(4) of the Indian

21
1992 SCC (3) 204
22
(2011) 2 SCC 550
23
Mahmood Farooqui v State (Govt. of NCT of Delhi) 243 (2017) DLT 310
24
2016 10 SCC 506
25
AIR 1952, SC 54
Evidence Act26 (Till 2003), looked at the ‘immoral character’ of the victim, their past sexual
conduct – someone who is habituated to sex, etc. to determine the possibility of consent. In
Pratap Mishra v. State of Orissa27, the victim was in a relationship with a married man. She was
raped by a few men from the National Cadet Corps when she was six months pregnant. The
defense referred to her as a ‘concubine’ and that the man she was a in a relationship with had
traded her with them. He was in essence a ‘pimp’, in which case, her consent was implied. S. 280
of the Criminal Procedure Code was impacted deeply by the Bharwada case28, where the
demeanour of the witness became significant. He makes the descriptive distinction between
western women and Indian women. These standards apply: The urban elites may, but the rural
‘unsophisticated’ women wouldn’t. The judge in this case, made a checklist. The narrative
determines the culpability of the accused. The behavior of the victim becomes relevant. Is she
feeling shame, if not, then why not? The standard is that of the judge; how he would react under
this circumstance.29

When it comes to sentencing, the minimum sentence of seven years is awarded in cases
where the character of the victim is ‘assessed’. Often, past sexual history is cited to reduce
sentencing. Medical jurisprudence advocating the now impermissible ‘two-finger test’
determines, again, the culpability of the accused. In Gurmit Singh30 the marital status of the
woman became relevant, where the victim came forward with the case after nearly fifteen years.
The court presumed that in the meanwhile, she must have gotten married; hence, there was no
need to impose a harsh sentence. Baldev Singh31 reduced the sentence of the rapist and provided
the victim ‘compensation’ as the victim eventually got married, and hence no harm was done.
Eligibility for marriage was not a concerning factor anymore.

WHAT ARE JUDGES DOING?

In most of the cases, the judges on a nominal level acknowledge that there have been
cases of rape; i.e., there is a rapist and there is a victim. However, they still try to incorporate
26
Indian Evidence Act, 1972
27
AIR 1977 SC 1307
28
1983 AIR 753
29
Same was seen in Kamalanantha v. State of Tamil Nadu, (2005) 5 SCC 194
30
1996 AIR 1393
31
State of Punjab v. Baldev Singh, AIR 1999 SC 2378
elements of the social constructions of a rapist and a rape victim in the way they formulate
sentencing. Formalistically, the law specifies what ‘rape’ is, and the vitiation of consent. But, the
courts exercise their own standards of consent and medical jurisprudence that eventually either
determines conviction or rape, as was the case with Mahmood Farooqui, or manifest more
strongly in degrees of sentencing. In undertaking this exercise of categorizing victims and
perpetrators, isn’t the judge also creating new party identities?

There exists a piece of legislation (Indian Penal Code) that defines what rape is. After
looking into the facts and circumstances, and assessing evidence, the judge decides whether the
accused is guilty or not. However, this linear trajectory of the case proceeding is ruptured simply
because the judge gets to exercise discretion at every step. The judge goes on to allow/disallow
medical evidence and impose medical tests that aren’t explicitly barred by the Indian Evidence
Act, they then go on to mis-apply pre-existing standards/stereotypes on victims where should
they not conform to the current social standards of acceptable behaviour, the victim is
discredited, and hence, the case is discredited. Hart claims that most ‘rules’ apply to ordinary
cases, but in some extra-ordinary matters, the rule is silent, or has an open texture. Where, the
intention of the law/rule in question is paramount. In such case, the judge must posit the interests
of the parties, the standard, and his own discretion against each other. The ‘core meaning’ of any
rape law is the appropriate assessment of forced sexual assault and punishment for the same. But,
there is a significant amount of freedom given to judges to determine the quantum of punishment
once the conviction is made. Although there is a minimum sentence to be awarded, the judge
using his or her own moral standards decided whether any crime is big enough to award the
maximum sentence. Here is where, this paper disagrees with Hart’s concept of legal standards
being applied to the ‘penumbra of uncertainty’.

Dworkin claims that rules don’t exist in vacuum and are always accompanied by
principles and policies. However, who determines legal principles? And are they pre-existing, or
created? There are cases where judges have not only interpreted the law to define their ‘own
acceptable versions’ of consent, but have also gone a step further to define who the ‘right’ victim
is. Is this anything short of the creation of new legal identities of perpetrator and victim, and
hence, is the role of the judge anyway different from that of a law maker? If the legislature is
conferred with the power to create laws, then judges are conferred with the power to create legal
principles through adjudication and not merely apply pre-existing ones. Hence, Dworkin’s
claims of the lack of judge’s true discretion fails as new legal principles in the sphere of rape
adjudication are created and dismantled with every passing judgment, and ultimately boils down
to the collective morality of the bench presiding. By exercising these discretions, they also come
to what most would consider as ‘wrong judgments’.

CONCLUSION

Hart and Dworkin through the Positivist model of jurisprudence and a critical view of the
same have tried to conceptualise the role of judges. Hart claims that the ‘core’ of a rule must be
abided by regardless of the judge’s personal dispositions. Even when there are certain gray areas
in its application, the judge must exercise discretion but based on a certain ‘standard’ that may or
may not be abiding. Dworkin, on the contrary states that rules are always accompanied by
principles and policies that guide the decision of the judge and are as binding as any ‘rule’. For
example, not being allowed to benefit from one’s own wrong. These principles override rules
and the judges truly have no discretion in these matters. However, from a closer inspection of
rape adjudication in India, it becomes evident that although Dworkin claims that there can
always only be a single right judgments based on facts and evidence, the very discretion of the
judge to consider and reconsider permissible evidence quashes his argument. Furthermore, even
if the ‘core’ of the rule in question calls for the conviction of an accused, but the judge applies
his personal moral standard to determine the quantum of punishment, then isn’t the judge
undertaking the role of a legislator? He isn’t merely guided by any principle of natural justice, if
the perpetrator is convicted, but the sentence awarded reflects otherwise.

BIBLIOGRAPHY

Black H, Black's Law Dictionary (4th edn, West Publishing Co 1968)

Soper E, 'Legal Theory And The Obligation Of A Judge: The Hart/Dworkin Dispute' (1977) 75
The Michigan Law Review
Hart H, J RazP Bulloch, The Concept Of Law (3rd edn, Oxford University Press 2012)
Dworkin R, 'Hard Cases' (1975) 88 Harvard Law Review
Dr. Mrinal Satish, 'DISCRETION, DISCRIMINATION AND THE RULE OF LAW:
REFORMING RAPE SENTENCING IN INDIA' (O.P. Jindal Global University, 25th Oct,
2018).
Satish M, Discretion, Discrimination And The Rule Of Law (1st edn, Cambridge University Press
2017)

i
Henry Campbell Black, Black's Law Dictionary (4th edn, West Publishing Co 1968).
ii
Ibid.
iii
He was a professor of Jurisprudence at the University of Oxford between 1952 and 1973. This paper will look at
his most famous publication, a book titled ’The Concept of Law’ first published in 1961.
iv
Former Professor of Jurisprudence at the University of Oxford. Successor and critic of H.L.A. Hart.