By Amiya Kumar Kushwaha
Terming the recently delivered order of the Madras High Court that directed the rapist to mediate with the victim as “illegal” and “unwarranted”, legal eagles pitched for delivering justice instead of referring it for “settlement”.
Expressing that such verdict will increase rape cases in the country, legal experts said the high court had no power to overwrite expressed provisions of law and “rape survivors needs justice instead of sympathy”.
Retired Delhi High Court judge, Justice S.N. Dhingra termed the Madras HC order that has given opportunity to a man found guilty by the trial court of raping a minor, to “settle” the matter with the victim by mediation as “illegal”, “unwarranted” and “unethical”.
“The inherent powers of the high court can only be exercised where there is no law,” Dhingra told IANS.
The Madras High Court
The Madras HC ruling was passed on convict V. Mohan’s plea seeking bail.
Justice P. Devadass, in his order delivered on June 18, said “it is a fit case for attempting compromise between the parties”.
Justice Devadass said “keeping the appellant (convict) inside the jail and asking him to participate in the mediation talk will not result in any fruitful result”.
The ruling sparked debate and outrage in the legal fraternity and was condemned by many experts.
Atul Shrivastava, the public prosecutor in two major cases — the Uber rape case and the Danish woman rape case — told IANS that a rape case falls under the category of cognisable non-compoundable offence which cannot be referred to mediation.
“Mediation was established for solving compoundable offence disputes, including matrimonial, labour, motor accident claims, eviction matters between landlord and tenants, but not for criminal offence like rape and murder,” Shrivastava said.
Justice Dhingra said that allowing settlement to the rape convict will encourage other accused of sexual assault cases to commit offences thinking that the law can protect them.
“A rapist will take it for granted that even after the crime, he can walk scot-free by tying the knot with the victim,” Dhingra said.
In a separate order delivered on February 3, Justice Devadass allowed another rape convict to settle the case after the accused agreed to marry the victim.
Senior lawyer Indira Jai Singh vehemently criticised the order and said the Madras HC judge ignored the rulings of the Supreme Court that “rape cases cannot be compromised”.
Singh, demanding the recalling of order, sought intervention of the Supreme Court to take suo motu on this ruling.
She said rape survivors need justice instead of sympathy.
Senior lawyer Geeta Luthra argued that rape convicts not be granted liberty or dealt with leniency due to attachment with human sentiments.
The Madras HC also said “human sentiments and human elements also has been noticed” while announcing its order.
Luthra opined that if the victim was involved in a physical relationship on the false pretext of marriage, then “settlement” seems right applying human elements, but as per law, there is no provision that rape will be treated as non-compoundable offence.
She said mediation was a negotiation process in resolving disputes and generally practised for reducing burden of pending compoundable cases in judiciary but cannot be exercised in solving heinous criminal offence.