June,25,2015: Every 20 min. an innocent girl is Raped in India and a good 75% of the Accused will goes scot free.
Lately Madras High Court has asked a rape convict to opt for mediation talks with the rape survivor, a minor at the time of the offence. The court granted interim bail to the convict to enable him to participate in the talks.
Hearing his plea, seeking suspension of the seven-year sentence imposed by the trial court and bail, Justice P. Devadass observed, “Keeping the appellant inside the jail and asking him to participate in the mediation talks will not have any fruitful result. He should be allowed to participate in the deliberations as a free man and vent his feelings and open his mind. Where there is a will, there is a way,” he said.
V. Mohan was convicted by a local court in Cuddalore district in 2009 and sentenced to seven years on charges of raping a minor girl, who gave birth to a girl. The accused was directed to pay Rs. 2 lakh to the survivor. Observing that the survivor was an unwed mother of a child, the judge said, “There is a big question mark looming large over the survivor as well as her child.”
The judge said the ADR mechanism was being used in criminal cases too. “In fact, it is good to the litigants as well as to the State and to the court.”
“There is no bar to attempt at reconciliation even in a criminal appeal where the accused has been convicted under Section 376 IPC,” he said.
The judge directed the local court in Cuddalore to keep in fixed deposit Rs. 1 lakh given by the convict and disburse the monthly interest to the survivor.
“Compromise, if any, arrived at shall be reduced into a form of a Memorandum of Understanding and it shall be submitted to this court,” he said, adding that in case of violation of spirit of this order, it would entitle the survivor or the police to move this court for cancellation of the interim bail.
Advocate Geetha Ramaseshan said, “Rape is a sexual offence and a non-negotiable offence and one cannot have any mediation except in the situation where the woman alleges breach of promise to marry. Rape is a non-compoundable offence and there has to be a sentence.”
High Court Order creates Social Outcry
V. Suresh, National General Secretary, Peoples’ Union for Civil Liberties (PUCL), said, “It is a retrograde order. It is against the very fundamentals of rape jurisprudence. Rape cases cannot be settled outside the frame of law. Directing mediation to a rape victim only unleashes violence once again on the victim.”
Referring to a Supreme Court judgment on no compromise being permissible in a rape case, he asked, “When the prayer itself is for bail, where is the question of mediation?”
Noted advocate and a member of the PUCL, Nagasaila, found the order “untenable and illegal,” and wondered how such an order could be passed.
“Whenever a crime is committed, it is perceived no longer as a crime against the individual but against the society. That’s why the State is the respondent in these cases. Punishments are a deterrent against crimes. This order hits at the very base of jurisprudence,” she said.
Only smaller cases like cheating and causing nuisance could be referred for mediation with the permission of the court, but not grave offences like rapes, which have to be dealt with strongly. “Rape cases cannot be settled outside the legal framework.” Terming the order “distasteful,” she said that such an order could not be passed without knowing the mindset of the victim. “The order says it wasconsidering the fatherless child but what about the woman’s rights on her own body and her life? How can you bring in sentiments of a child and hand over the lives of a woman and a child to a rapist? It is horrifying to note that such an order has come from Constitutional authority,” she said.
Referring to an amendment made in the Criminal Procedure Code in 2006 over plea bargaining which was prevalent in the Western countries, she said, “Even plea bargaining cannot be allowed in cases of Rape.”
Victim pleads ‘How can I live with him?’
It has been seven long years, but uncertainty and anxiety still loom large over 22-year old Lakshmi (name changed) of a remote village in Cuddalore district, as the unwed mother spends every other day unsure and confused over what the future holds for her and her six-year-old daughter.
Speaking to The Hindu over phone, the rape survivor, whose case has been referred for mediation by a single judge of the Madras High Court, says she was not aware of the order but mediation was initiated even earlier by the family of the convict, who, incidentally, lives just next door in her village.
“But how can I live with him? Would he accept the solution if it had happened to one of his sisters? Not even once has he visited us. He has not even touched this girl even once. He has been maintaining that she was not his child until the DNA test. Why has he not come for a compromise before he was jailed,” she asks, pertinently. The incident happened when she was in Class 10 and the convict was a college-goer in Chennai and visited his native place on weekends.
“He is coming for a compromise so that he can be out of prison. I hate the very sight of him and how can I live with him as man and wife? I don’t have any sense of belonging to him,” she says. Over seven years since, the survivor, presently being supported by her relatives is still confused over how to settle this overwhelming issue in her life.
“How can I live in this world with this girl? If not for my daughter, I would have remained this way. But what will happen to me and my daughter now? After my mother, who will take care of us?”
Supreme Court Judgments on the issue
In 2014, the Supreme Court observed that rape was a non-compoundable offence and not a matter for compromise between the parties. Yet, the Madras High Court, in its judgment, goes one step further by proposing an alternative dispute resolution mechanism apparently geared toward a “happy” resolution through marriage.
In case titled 'Shimbhu and Anr. vs. State of Haryana' CRIMINAL APPEAL NOS.1278-1279 OF 2013 on 27.8.2013 Full Bench of Supreme Court Bench of Chief Justice P. Sathasivam, Justices Ranjana Desai and Ranjan Gogoi. observed,' Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent, there is every chance that she might have been pressurized by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurize her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in considering the compromise arrived at between the parties in rape cases to be a ground for the Court to exercise the discretionary power under the proviso ofSection 376 (2) of Indian Penal Code'.
In another case titled 'Gian Singh vs. State of Punjab and Anr.' (2012) 10 SCC 303Supreme Court held that 'even if the prosecutrix has settled the dispute with the petitioner since the offence has a serious impact on society, the FIR cannot be quashed.'
In another case titled 'Anil Kumar & Ors. vs. State of NCT of Delhi' Crl. M.C. 3216/2012, a joint petition fpr quashing the case was filed under Rape offence on the ground that the parties have entered into marriage. However, the petition was dismissed by Delhi High Court while observing that,' it was not a fit case where Court should come to the rescue of a perverted person and give him a relief. The offence of rape is a crime against the society. The FIR in such like cases if quashed, will only give impetus to persons with like-minded mentality to commit the crime. Therefore, it is not a fit case where Court ought to exercise its inherent power under Section 482 Cr.P.C. and quash the proceedings.'
Mediation and other ADR methods not for Henious Offences
Former Additional Solicitor-General Indira Jaising says the Supreme Court has repeatedly said that there should be no compromise on rape cases and the Madras High Court has obdurately refused to follow that directive. What the High Court proposes, she says, is worse than a compromise.
“This kind of bleeding heart for a rape survivor is misplaced sympathy for her and absolution for the rapist. Worse still, to do so in the name of the religions of the world displays an inability to distinguish between good and evil,” she says. Ms. Jaising says the Supreme Court must suo motu intervene and stop the “mediation”.
Pratiksha Bakshi, Associate Professor of Law at Jawaharlal Nehru University and author of the Public Secrets of Law: Rape Trials in India, says compromise as a ground for granting bail is not a new thinking in our courts.
“However, granting interim bail on the condition of alternate dispute resolution or mediation geared towards marriage between a rape accused and the complainant is an astounding newer way of formalising compromise in non-compoundable offences,” she says.
Through this, she says, the court basically inaugurates a socio-legal form of arranged and mediated marriage where arranging the marriage of a rape accused with his victim is seen as a legitimate form of “rehabilitation” that restores “phallo-centric” social order.
“This form of ‘rehabilitation’ is not concerned with the realities of what it would mean to be pressured to marry the man you have accused of rape. This is a non-issue especially when the court sees the accused as an ‘eligible bachelor’ and the woman as having no future if she is not ‘happily’ married,” she says.