HC ruling not in sync with Supreme Court order
- JAYANT SRIRAM
Madras HC suggests marriage between accused and minor victim.
The Madras High Court’s judgment allowing a man found guilty of raping a minor to “settle” the matter through mediation raises several disturbing questions about the way in which higher courts approach issues relating to women and gender.
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.
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.
Kavita Krishnan, secretary of the All India Progressive Women’s Association, says the judiciary needs more checks and balances than are currently available.
“This one case was reported by chance, but it is clear that this kind of thinking still exists in our judiciary — the idea that issues such as rape can be sorted out through compromise or through marriage. When judges are selected, more than just an exam, they need to be quizzed on their views with regards to women and to minorities. And checks have to take place to ensure that those who occupy the office don’t hold such views,” she says.
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”.
Judge’s order retrograde: activists
- DENNIS S. JESUDASAN
Where is the question of mediation in a rape case when convict’s prayer itself is for bail, ask experts.
The single judge’s order directing a case of rape to be referred for mediation has come in for sharp criticism in legal circles. Experts question the need for suggesting mediation when that was not even the prayer by the convict himself.
“One cannot pass any judgment on a bail application. When the prayer is for bail, where is the question of mediation? Secondly, one cannot pass an order directing mediation without asking the victim whether she wants that. When the applicant himself has not asked for it, how can mediation be suggested,” asked retired judge of the Madras High Court, K. Chandru.
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.”
‘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?”