CHENNAI:The Madras High Court’s decision to refer a rape case against a minor to mediation for an amicable solution has evoked strong criticism even from the members of legal fraternity, including activists and the social media.
Former judge of the Madras HC, Justice K Chandru, said the order passed by Justice P Devadass is “truly shocking.” “The order enlarging the accused on bail gives strange reasoning. The theme sounds like an old Tamil film Puthiya Pathai featuring Parthiban and Seetha. Of late, courts are experimenting with matters even in bail applications. This is the first time new reason is given that in order to participate in mediation, an accused will have to be enlarged on bail.”
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Holding that rape is an inexcusable offence and criminal law regards rape as a serious offence and does not allow for compounding, advocate Sudha Ramalingam, said, “It is not an offence that can be negotiated away. Unfortunately, there have been several instances through the years where the courts have tried to mediate and find ‘solutions’ including marriage of the victim to the rapist, or compensation to the victim, in lieu of imprisonment.”
Citing the decision of the high court that recommended alternate dispute resolution (ADR) in a case of rape, she said, “ADR is only suitable for civil cases where essential rights of individuals are not at stake. It is dangerous to compare a property transaction, or debt recovery transaction where the parties may agree to resolve their dispute amicably. Serious offences like rape are not amenable to plea bargaining, or compounding.”
Advocate Thomas T Jacob raised a question asking whether a subsequent marriage under duress would nullify the incident of rape or sexual violence which is a punitive act. “If the marriage has been consented by both the accused and the victim, the same would only be an eye-wash and would only be an avenue for the accused to escape punishment,” Thomas said.
Noting that the victim’s consent to marry her rapist would in all likelihood be under the duress of some party citing social stigma and that no man would accept a woman who has been raped, he said, “Before thinking of mediation, it would be appropriate to see the actual character of the accused, whether he had taken any steps to visit the child or taken steps to take care of the child and the mother to even qualify for mediation.”
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