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Mediation on Rape
Madan Lal Yadav vs The State Of Madhya Pradesh Thr on 15 July, 2015
judiciary.
However, ADR is only suitable for civil cases where essential rights of
individuals are not at stake. It is dangerous to compare a property
compounding.
Mediation
should
not
be
used
in
rape
case
since rape involves the coercion and power dominance. So mediation cant
be solution as it can ensure a fair solution only between two equal parties.
When rape cases adopt mediation, if often encourage settlement by
monetary
compensation to victim, but monetary compensation cant absolve accused
of
such
a heinous crime not victim get due justice by compensation. Due to social
pressure and patriarchal norms in society, mediation often encourages
marriage between accused and victim. This is gross injustice to victim as she
needs to tolerate her exploiter for whole duration of life. Court trail is basic
right of the survivor. The court proceeding are fair and legitimate while
hearing in mediation is often reduced to character assassination of survivor
and she need to face hostile audience without fair procedure.
The Madras High Court, by its decision in V. Mohan v. Inspector of Police has
recommended alternate dispute resolution in a case of rape. The decision of
Justice P. Devadass appears to endorse negotiation, or mediation in case of
rape. In his judgment, he states that the true victim of the crime is actually
the child that the victim gave birth to. The victim whose parents are no more
is the mother of a child who was born after the rape. The order came on an
appeal and a bail plea filed by the accused, V Mohan, who was convicted and
sentenced to seven years and was slapped a fine Rs 2 lakh by a Mahila Court
in Cuddalore in 2002 for raping the minor girl. He had not served his term.
Therefore, the court has suggested that through alternate dispute resolution,
the accused and the victim find an amicable solution which would then be
used to mitigate the sentence of imprisonment. For this reason, the Court
had released the accused on bail. Whilst so, referring this case to mediation
hostile
resulting
in
acquittals.
It has been a long uphill battle to raise awareness and sensitize the public as
to the seriousness and scale of violence against women. Given this history, it
is regressive to endorse ADR in case of rape as it appears to trivialize the
underlying offence. In this case, Even though the victim rejected the offer to
mediation, the State Legal Services Authority sent a letter to her to appear for
mediation on July 13. The girl, who was residing in her native village till the
announcement of the verdict, has been shifted to a Home in Chennai to keep
her away from all the media attention. The Madras High court order had
evoked widespread resentment across the country for urging mediation
between the accused and the rape victim without obtaining her opinion on
the issue. A section of lawyers and rights activists had vehemently opposed
the move. Meanwhile, the Supreme Court in the State Of Madhya Pradesh Vs
Madanlal on July 1, 2015 said, When a human frame is defiled, the purest
treasure, is lost. Dignity of a woman is a part of her non-perishable and
immortal self and no one should ever think of painting it in clay. There cannot
be a compromise or settlement as it would be against her honour which
matters the most. In view of this Supreme Court observation that mediation
and compromise should not be an option in rape cases, the Madras Hi gh
Court has recalled its order directing the minor rape victim in Cuddalore district
was filed before the trial Judge. It did not find favour with him on the ground
that the offence in question was non-compoundable. On appeal by the State
of Madhya Pradesh, the Supreme Court Showing its dismay with the HCs
judgment, bench observed: Any kind of liberal approach or thought of
mediation
in
this
regard
is
thoroughly
and
completely
sans
legal
permissibility. The court also made the following observation with regard to
compromise to marriage. Sometimes solace is given that the perpetrator of
the crime has acceded to enter into wedlock with her which is nothing but
putting pressure in an adroit manner; and we say with emphasis that the
Courts
are
to
remain absolutely away from this subterfuge to adopt a soft approach to the
case, for any kind of liberal approach has to be put in the compartment of
spectacular
error.
In the case of Madanlal, the victim was of 7 years of age. The victim in the
case of V. Mohan was 15 years old when she was raped. The accused has
claimed that this was not a violent crime, and that it was consensual
intercourse. Earlier minors under the age of 16 were regarded as incapable
of giving consent, and according to the IPC, in addition to non-consensual
rape, sexual intercourse with an underage girl is also rape. However reading
through the newly amended provision of rape under the amendment act of
2013 necessitates the need to look from the perspective of the accused as
well. After the Nirbhaya incident, the law has been changed and the age of
consent has been increased to 18 years. Increasing the age of consent,
whilst a populist move, makes consensual relationships between teenagers a
crime. Due to changes in cultural norms and mores, teenagers are
increasingly sexually active. It is thus quite counter-intuitive to increase the
age of consent. The result of this change in the law is that an 18 year old boy
who is in a voluntary, intimate relationship with a 17 year old girl would be
equated to a violent sexual offender. The law does not distinguish between
the
two
cases.
The decision of the Madras High Court brings to light the dilemma that legal
practitioners and judges face whilst dealing with age of consent issues. The
decision of the High Court was regarding the unamended IPC where the age
of consent was 16 years old. In light of the recent amendment that increases
the same to 18, one can anticipate further instances where the Courts seek
the refuge of ADR, or other such mechanisms, in their bid to be humane and
deliver individualized justice.
While Mediation, as a form of Alternative Dispute Resolution (ADR) has many
advantages like simple procedure, cost effective, reduce escalation of
conflict and save times but it cant be used in heinous offences like rape
cases. Justice J.S Verma Committee report that came out in the light of Delhi
rape incident had strengthened the case by locating rape in the context of
gender justice; ADRs would clearly be retreating from this path. Courts
should appoint special bench for quicker resolve of such type of cases rather
opting for ADRs for speedy trail. The systemic impact of such decisions
cannot be underestimated. Endorsing ADR in case of rape undermines the
seriousness of the offence and opens out opportunities for those accused to
buy their way out, or worse, marry their way out of jail. However the new
definition of rape covering consensual sex between teenagers sometimes will
necessitate the need to refer a case of rape for mediation. In spite of
referring criminal offences for mediation the proper solution would be to
redefine the offence of rape under S. 375 of I.P.C. so as not to include acts
which can be compounded by the parties. This is also necessitated since the
new definition which intends to serve the purpose of gender justice would
only serve justice for women and is in effect disregarding men undermining
their justice. Thus rape is not a dispute which can be resolved by mediation
but the existing definition for rape might lead to circumstances where rape
may be regarded as a subject matter for mediation. A proper definition for
the offence of rape is yet to be discovered in order to serve justice for both
genders.