No place for mediation

Had the originator not been the Madras High Court of the suggestion that a rape victim and the person convicted in the case, should settle the issue through mediation, the mere thought would have been dismissed as outright nonsense, not worthy of even a comment. That a High Court judge — in this case Justice P Devadass — should have forwarded this bizarre idea makes the matter more serious. Courts are mandated to deliver justice that reflects on both the victim and the convict.

They are not here to suggest a course of mediation in cases that are of grave criminal nature. Mediation has its place and justification, but not where crimes of murder and rape are involved. There is just one form of justice there: Delivering the most stringent punishment that the law provides to the person held guilty by the judicial mechanism. A recap of the case at hand will reveal how absurd Justice Devadass's suggestion is. A 15-year old girl was raped. She delivered a child a year later. Six years after a court trial of the incident, the accused was found guilty and sentenced to seven years of imprisonment.

The convicted person then appealed to the High Court. Justice Devadass, in a sudden burst of magnanimity, suggested to the two parties to arrive at a compromise through ‘mediation'. One wonders what there is to mediate in this case. It isn't an issue of marital discord or misunderstanding or of one between parties warring over property which can be settled through dialogue. The High Court judge ought to have remembered that this is an issue of rape — and the rape of a minor, which makes matters even more serious. It should have been his duty to ensure that the convicted person gets punished for his heinous crime.

The circumstances leave no room for any sort of reconciliation. Justice Devadass's advice must have come as music to the convicted rapist's ears. let's for a moment consider the possibility of mediation had the rapist not been convicted. Would he have agreed to mediationIJ No, because he would have turned around and claimed innocence. That would have knocked the bottom out of the mediation offer. Now that he has been held guilty, he will find mediation a way out of the seven-year prison term he faces. The High Court judge's suggestion must have put enormous pressure on the victim too, because she would not only be devoid of justice but would also have to collaborate with the rapist for a ‘solution'. 

It is, therefore, for good reason that social rights activists and many jurists have vociferously slammed the judge's suggestion for mediation, and called it a travesty of justice. They have rightly pointed out that the ‘humanitarian' angle does not apply in a case where the victim stands traumatised for life, and more so when she has had a child out of the rape. If indeed humanitarianism has to be applied, it must be done in the victim's case. She has been sexually brutalised and has to go through an ordeal on her own with little family support, since her parents are no more. As it is, prosecutors and police are often faulted for poor conviction rates across the country in cases of sexual assault, because there is lack of either evidence or proper investigation. If the few convictions that are obtained are sought to be diluted, it would send the wrong signals.