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?”
