This article was written by Akanksha Saxena a student of University of Petroleum and Energy Studies
Mediation is a good way of dispute resolution if civil cases are concerned. It is acceptable for compoundable offences and not the cases concerning criminal law. And rape is a non compoundable offence. Mediation is a method where both the parties involved in a case are advised and guided by a third person who has no interest in the case and is a neutral party. In this mechanism both the parties have an active role to play to reach to the final result and it also lessens the burden of the courts, since the same time can be employed to decide other cases.
But then rape is a non compoundable offence. It is a crime which is not only concerned with the rapist and the victim but also affects the society at large. And so mediation would not yield better results. There can be a lot more factors for this. May be the victim is under pressure or the rapist is exercising some undue force on the victim or the rapist is a powerful man and so is misusing his power. Mediation only works when the victim or the survivor participates in the due process. But when a heinous crime such as rape is concerned, the victim is so traumatized, that he can rarely put his efforts for justice.
As far as the Madras High Court judgment is considered regarding mediation given in its order, it is been criticized. The case concerning the judgment was of a minor girl who was raped two days before her class X exams were commencing. The girl got pregnant and she has a child which is six years old. The rapist, V Mohan has been sentenced to seven years and fine of two lakh. This was decided by Cuddalore Mahila Court, 2012.
But then it was overruled by Madras High Court. Justice Devadass of Madras High Court held-
“The case is fit for attempting compromise between the parties. Keeping the appellant inside the jail and asking him to participate in the mediation talk will not result in any fruitful result”. He gave the order to free the culprit, saying he should be free to participate in the negotiations so that mediation yields out better results.
And this decision was given without seeking the viewpoint of the victim. The judge also ordered V Mohan to pay 1 lakh as penalty. But this judgment says so much about the lack of sensitiveness which is shown by the court. The language used is very piercing for the victim. The girl is not ready for any sort of compromise or settlement. She has undergone a lot of struggle and hardships. Her village boycotted her. Her parents are not in this world and she is working very hard for her and her daughter’s survival. But then she is a strong woman and she would never marry a man who raped her. She is in strong opposition of this order.
This decision of High Court was questioning the dignity of a woman. The High Court is insensitive towards the dignity, self esteem, pain and sufferings of the victim. The lady has undergone so much pain past these years and marriage cannot pay for the same.
And days after this order, came the verdict of Supreme Court. It held that it would be a “spectacular error to adopt any kind of liberal approach in sexual assault cases.” The Supreme Court overruled the High Court’s order. The court’s decision was more based on tradition and dignity of a woman rather than on her rights or constitutional aspect. Legal aspect on the matter of rights of a woman or an Indian was not very much focused. But this decision laid down that compromise can never be a solution to an offence like rape.
The Madras High Court has also overturned its decision. It has cancelled the bail of the convict. And it also agrees to the verdict of the Supreme Court.
A woman has been guaranteed the right to bodily integrity by the constitution. There can never be a room for deliberations when the dignity of a woman is in question like in rape and assault cases. The Supreme Court gave a very good decision on the matter but the reasoning was in question. Undoubtedly, the Supreme Court has given an excellent verdict but the only issue lying is why the court failed to back its decision by law. But this has given a support to the rape victims that injustice can never be done to them. The culprit cannot go unpunished. Offence like rape is not only against the victim but against the whole society. And mediation is no way solution to such offences.