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”.
Published - June 25, 2015 02:33 am IST
