Madras HC recalls order directing Mediation in Rape Case

In a welcome move, the Madras High Court has recalled its July order through which it had granted interim bail to a rape convict and urged the victim and the offender to try a compromise by mediation. The convict has been asked to surrender by July 13.

Keeping in view Supreme Court’s order dated July 1; Justice P. Devadass has ordered to stop the mediation preparations.

Last month, a man, found guilty by the trial court of raping a minor and resultantly sentenced to seven years’ imprisonment, was given an opportunity by the Madras high court to ‘settle’ the matter by mediation.

Justice P Devadass, holding that alternative dispute resolution such as mediation is now being used in criminal cases also, said: “In fact, even in Islam, Hinduism and Christianity, there are instances of solving the disputes in a non-belligerent manner. The result of it is very good because there is ‘no victor, no vanquished’.” You may read the judgment and LiveLaw story here.

This stand was criticized by jurists and social activists alike. According to a Zee News report, retired Delhi High Court judge, Justice S.N. Dhingra termed the Madras HC order to "settle" the matter with the victim by mediation as "illegal", "unwarranted" and "unethical".

"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," The Hindu quoted noted advocate Geetha Ramaseshan as saying.

Senior advocate R. Shanmugasundaram, former public prosecutor of Tamil Nadu, said compounding an offence through mediation would not undo the act. He said the court must have tried to exhaust all options before treating the matter on merit.

"Would the man have agreed for a compromise had he been acquitted of the rape charge by the trial court? Desperate to get bail now and acquittal later, he might go through the mediation process," said an inspector of police, to TOI. “Already police and trial courts are being faulted for poor conviction rate in sexual offence cases. If high courts set at naught a successful rape trial of an underprivileged girl, trial courts and victims will lose faith in higher judiciary," he told TOI.

Following this, in a judgment pronounces on July 1, the Supreme Court held that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of.

Hearing the appeal filed before it, the bench of Justices Dipak Misra and Prafulla C. Pant observed, “These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation.  And reputation, needless to emphasize, is the richest jewel one can conceive of in life.  No one would allow it to   be   extinguished.     When   a   human   frame   is   defiled,   the “purest treasure”, is lost.  Dignity of a woman is a part of her non-perishable   and   immortal   self   and   no   one   should   ever think of painting it in clay.  There cannot be a compromise or settlement as it would be against her honor which matters the most. It is sacrosanct.” You may read the judgment and LiveLaw story here.