The outrageous judgement of a single bench of the Madras High Court in granting bail to the convicted rapist of a 15-year-old girl and referring the matter to a "mediation centre" set up under the Alternative Dispute Resolution (ADR) Mechanism constitutes a new low in judicial pronouncements in cases of sexual assault.
The declared aim of the mediation is to arrange for the marriage of the rapist with the victim. The judgement is deeply flawed on all counts: legally, morally, ethically. If allowed to stand, it sets a dangerous precedent for the use of ADR to enable a criminal convicted rapist to escape punishment.
But first about the courageous young woman Vimla (name changed). A team of senior members of the All India Democratic Women's Association (AIDWA), with whom I work, met Vimla in her village after the judgement, so that we could hear from her directly what she thought of the judgement and whether she required any assistance.
Vimla unequivocally rejects the judgment. She has asked for assistance to challenge it. She has stated that she does not want any mediation. She is a single mother. Her daughter was born of the rape. Vimla told The Indian Express, "One day I will tell my daughter that her father is a rapist." She told the AIDWA team that she would have been happy if the judgement had ensured that she got some help to educate her child, but as it stands, even the two lakh rupee fine levied on the rapist by the additional sessions court has not been paid.
All this information is in the public domain. Yet the Tamil Nadu state government has not bothered to contact her, forget the apology it should make for its shoddy treatment of the case. Its public prosecutors never once asked the judge to allow them to consult the victim whose future was being decided. The Jayalalithaa government should immediately appeal against the order. On our part, AIDWA along with other women's organizations in Tamil Nadu will be taking the steps required.
The rape occurred in 2008. The criminal was convicted in 2012. He has been in jail for less than half the sentence. He appealed to the High Court, asking that the sentence be set aside and his bail plea granted. His counsel made a verbal suggestion that the convict could marry the victim. This particular bench, it appears, has a penchant for mediation in rape cases where the rapist has been convicted and is in appeal, having passed a similar order in another case referred to proudly in the present order.
The order reads that Vimla and her close relatives and the convicted criminal and his close relatives "shall be made to participate in the mediation process." In legal parlance the word "shall" means you have to follow the order whether you want to or not. It is utterly reprehensible that a judicial order should coerce a rape victim to sit across the table with the perpetrator of the crime to discuss marriage. The concept of consent is critically important in understanding the difference between choice and coercion. This is true not just in the definition of rape. It applies equally in the responsibility of the courts, governments and all those authorities supposed to be involved in bringing justice to the victim to ensure that the consent of the victim is central to any decisions taken in her name. It should be seen in the framework of democratic rights and civil liberties. The order tramples on this minimum principle of justice.
The order refers to the victim as "nobody's wife", "an unwed mother" and says that the child is the "main victim" who will carry a "social stigma" with the conclusion being that this is a "fit case for mediation." The rapist, in this perverted logic of the order, is converted into the saviour of the woman he raped, the knight in shining armour who will wipe out the curse of being "nobody's wife, an unwed mother". Being the saviour, he must be given bail and in the words of the order "be allowed to participate in the mediation as a free man and vent his feelings, open his mind and moorings" ... a rapist being asked by the High Court to vent his feelings to his victim, to open his mind? Can anything be more sick? Yes, because the order says "Where there is a will, there is a way... there are no victors and no vanquished."
There is a strong struggle on against rape cultures, cultures that blame the woman, cultures that justify the crime, cultures that trivialize the crime. But there is another dimension too, which is equally destructive, which while masquerading as being sympathetic to the victim holds that there is no life for a rape victim beyond the rape, that a rape victim embodies the living dead, that the rape victim will always have to live with social stigma, that at the end the only choice for her is to compromise with the perpetrator of the crime against her because in this view, it is a lesser price for her to pay. When a police officer says to a rape victim think twice before you file the complaint because it is you who will suffer, when a political leader says the rape victim is a living corpse, when society says, poor thing who will marry her, they are telling the victim, compromise, compromise, compromise. This is precisely the thinking reflected in this horrendous judicial order. Vimla wants justice, the court wants her to compromise by marrying the rapist and uses its power to force her onto that path.
The order has to be struck down on other legal grounds too. It assumes that the High Court has the inherent power under Sec 482 of the Criminal Procedure Code to intervene in such cases. This is a complete misreading of Sec 482 which is an instrument that the courts can use on three grounds - to give effect to the Code, to prevent misuse of the court processes and to serve the ends of justice. The Order is in violation of all three conditions. Secondly, Alternative Dispute Resolution is mostly used in commercial cases or cases of a civil nature. It cannot under any circumstances be used in cases of violence against women, least of all in cases of sexual assault. Thirdly, the High Court or any other Court has no right at all to force a woman rape victim to go for mediation with the rapist.
The judgement brings shame to India's judicial system.
(Brinda Karat is a Politburo member of the CPI(M) and a former Member of the Rajya Sabha.)Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of NDTV and NDTV does not assume any responsibility or liability for the same.