The Justice J.S. Verma Committee report that came out in light of the Delhi rape case in late 2012 took us a few steps ahead in the conversation on rape. It gave us the tools to locate the crime of rape in the context of gender justice. However, the recent judgment of the Madras High Court raises serious concerns on how the crime of rape is perceived by the judiciary. A single judge Bench of the High Court has granted interim bail to a person convicted by the lower court for rape of a minor, and has referred the case to mediation.

Alternative Dispute Resolution

Mediation is a form of Alternative Dispute Resolution (ADR) where a neutral mediator assists the parties concerned in arriving at a mutually agreeable settlement. It is a mechanism that seeks to reduce the burden on the courts. It also provides for an alternative where parties can have an active role in the final outcome as opposed to a decision handed down from the judiciary. Though mediation has been used with some degree of success in civil and matrimonial disputes concerning adjudication between private parties, its applicability to criminal law is questionable.

A civil dispute, or disputes with a predominantly civil flavour, are those cases where private rights of parties are in dispute. Contrary to civil disputes which affect individuals, criminal offences are looked at as impacting society at large. Thus, a criminal offence is considered to be not just against the rights of the victim, but also against society. This is because it is understood that the whole of society has an interest in preventing crimes. A direct result of this conception is that in a criminal case, the state, through appointed public prosecutors, steps in to prosecute, convict and punish the accused. The individual victim does not have any major role in this process.

Though minor criminal cases or criminal cases with an overwhelming civil flavour have been referred to mediation in the past, heinous offences like rape cannot be referred to mediation. Further, the consent of all parties is vital to refer a case to mediation. In the current order of the High Court, the opinion of the survivor has been completely neglected and her consent has been disregarded.

An increasing dependence on ADR dilutes the authority of the court, and also provides scope for the abdication by the state of its duty to prosecute the accused.

Power and lust

The single judge of the High Court makes a passing reference to how women are “soft targets of male lust”. This statement looks at rape as a crime driven primarily by lust. Such an understanding obliterates the fact that rape is “not merely a crime of passion but an expression of power” and the same has been observed in the Justice Verma Committee report. The offence of rape is committed to show power over someone, to put them in their place and to ensure supremacy and control. Thus, it is clear that there is a power imbalance between the accused and the victim.

To ensure that mediation happens on an equal footing in a crime that is primarily to do with the assertion of power is highly problematic. This leaves a lot of scope for implicit and explicit coercion towards the survivor. One of the implicit ways of coercion meted out in this case is that a big question mark looms large before the survivor and her child’s future. This implies that a survivor of rape has no future other than to settle the issue with the convict. Efforts ought to be made to provide adequate support for the victim during and after the prosecution so that she is able to overcome the trauma, than to urge her for a settlement that is illegal and unethical.

Role of survivor

It is unlikely that the intention of the court to refer the case for mediation was to ensure that the survivor has a say in the process. However, even if this were so, sending the case for mediation is not the way to go. Amendments to the Code of Criminal Procedure and judgments of the higher courts, including the judgment in Sathyavani Ponrani v Samuel Raj by the Madurai bench of the Madras High Court, have ensured that survivors of rape have an opportunity to be heard, and have more participation in the process, otherwise primarily between the state and the accused.

Thus, judicial time and energy should be concentrated in ensuring that there is active participation of the survivor in dispensing criminal justice. This can be done by ensuring that a special public prosecutor is appointed if the case warrants so; by allowing applications to assist the prosecution; to ensure that the survivor is represented through a counsel at all stages of the process and to ensure that there is witness protection. Instead of strengthening such measures, referring a case to mediation seems to be the wrong way out.

First published by The Hindu.