A Madras High Court order directing mediation between a rape victim and the accused has been rectified by the Supreme Court, which criticized it for its insensitivity
By Ramesh Menon
Three weeks after directing a rape victim to mediate with her rapist, V Mohan, who was given interim bail on June 18, the Madras High Court reca-lled its order. This reversal came after the Supreme Court (SC) castigated another high court order, saying that any mediation in a rape case was illegal and against the dignity of women.
“It is a spectacular error on the part of the court to promote any such mediation,” the SC said. A bench, headed by Justice Dipak Misra, observed: “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 honor which matters the most.”
“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….” —Justice Dipak Misra of the Supreme Court
The remark by Justice Misra was made in reference to another rape case, where he criticized a Madhya Pradesh High Court judge who had allowed Madan Lal, a rape accused, to enter into a compromise with the parents of a seven-year-old victim and had set aside the conviction and five-year sentence for the rape.
The Madras High Court order, passed by Justice P Devadass, had sparked outrage among activists and the legal fraternity. They felt that the rapist had agreed to the mediation, which would discuss marriage with the victim, as a ruse to escape payment of compensation and the seven-year sentence.
“In every judgment, the court must invoke constitutional principles. Something as blatantly unlawful as mediation in a rape case cannot be recommended. The core principle of equality, freedom to make decisions over one’s own body and mind must be invoked and protected.” —Supreme Court advocate Karuna Nundy
The verdict had led to protests in various parts of the country. Activists and legal experts argued that the rape victim, who is 22 years now, and the mother of a daughter born out of the rape, was not even asked if she wanted the mediation.
Justice Devadass revoked the order after the SC said that mediation and compromise should not be an option in rape cases.
On June 18, Justice Devadass had granted interim bail to Mohan, who had been sentenced to seven years imprisonment by the Mahila Court, Cuddalore, Tamil Nadu, for raping the girl who was 15 in 2008. She gave birth to her daughter on July 14, 2009.
A DNA test confirmed that the convict was the father. The accused was asked by the court to pay a compensation of `2 lakh to the victim. The accused appealed against the conviction and the sentence, contending that the victim was not a minor at the time of the rape and that it was consensual.
While hearing the appeal of the accused, Justice Devadass highlighted the plight of the rape survivor’s child, saying that she had suffered for no fault of hers. He said that she was a bigger victim than the teen mother.
Justice Devadass referred to an earlier case where he had ordered the accused and the victim to go for mediation. It had a happy conclusion as they had agreed to marry, he said.
In media interviews, the 22-year-old victim had categorically stated that she had absolutely no intention of mediating with her rapist or marrying him.
In an interview with The Sunday Express, she had said: “Did the judge ever think how I suffered all these years? He knew I had a baby from that rape. And now this single order of his wants me to go through that suffering again.”
The court has cancelled the interim bail that was granted to the accused in the present case and asked him to surrender to the court. The officer-in-charge of the mediation centre was ordered by the court to stop the parties from attending the mediation.
The accused has been asked by Justice Devadass to surrender before the Mahila Court in Cuddalore.
If he doesn’t, the trial court would issue a warrant to secure the accused and send him to the central prison at Cuddalore.
Though the victim had categorically made her views known about how she was against any mediation or compromise, the state legal services authority had sent her a letter to appear for mediation.
Over 100 lawyers had written to the chief justice against the order. “It is inappropriate that the judiciary should assume the role of the quintessential patriarch and condemn the survivor to the fate of accepting the rapist’s hand in marriage as a peace offering. In allowing this decision, the high court is effacing the autonomy and agency of a single woman, her right to a partner of her choice and to be the authority where her body is concerned. In allowing this decision, justice has been bypassed,” the petition said.
SC advocate Karuna Nundy told India Legal that the withdrawal of the judgment asking for mediation was a welcome course correction. She said: “However, the thing to remember is that in every judgment, the court must invoke constitutional principles. Something as blatantly unlawful as mediation in a rape case cannot be recommended. The core principle of equality, freedom to make decisions over one’s own body and mind must be invoked and protected.”