Behind the Madras HC “mediation” order : Misinterpreting precedents and more

When V Mohan, convicted of rape, appeared before the Madras High Court last week, he could not possibly have known that he would get way more than what he was bargaining for..Hearing a plea seeking the suspension of sentence and granting of bail, the High Court’s Justice P Devadass ended up suggesting mediation as a means of “settling” the rape case. .Holding that this was a fit case for attempting to reach a “compromise”, Devadass J. not only granted Mohan interim bail, but also directed the two parties to participate in mediation..In the days that have followed, the judgment has evoked a very, very strong reaction..Quite understandably, activists and lawyers alike are up in arms over an order that could have detrimental consequences. Supreme Court advocate Vrinda Grover is highly critical of Justice Devadass’ interpretation of the law..“This is not an offence that can be compounded under Section 320 of the Cr.PC. It is not a matter that can be compromised at any stage, and the Supreme Court has held as such in a number of cases…You cannot “solve” a rape case by mediation; it is a state prosecution that has to be proved beyond reasonable doubt.”.And the reaction is not limited to the interpretation of law alone..Lawyer Flavia Agnes calls for a more victim-centric approach in rape cases. She says,.“Usually, this conservative mindset is seen at the lower court level, but here it is shown by a high court judge. It is sad that there is no survivor support system in place. In this case, what the victim wants has to be considered.”.Even as there are conflicting reports on what the victim has or has not said, one might ask how the judge came to this decision. The answer? A 2015 judgment delivered by none other than the Supreme Court of India..Though not quite..Before going into the apex court’s judgement, one needs to look into the case law around Section 376 of the IPC; more specifically the proviso in this provision, which states that,.“[T]he court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.”.How and when this proviso can be resorted to has been discussed in a number of Supreme Court judgments, the latest of which was passed early this year..In February 2015, a bench of Justices EY Iqbal and PC Ghose, dealing with a case of rape, reduced the sentence. The court relied on the fact that the incident was 20 years old, the parties had gotten married to others, and that a “compromise” had been entered into. These set of facts qualified as adequate and special reasons to reduce the sentence..In that judgment, the bench in turn had placed reliance upon an earlier case of Baldev Singh & Ors. v. State of Punjab, wherein a rape sentence was similarly reduced..However, what the 2015 bench failed to take into consideration was that there was another judgment in 2014 (Shimbhu v. State of Haryana), in which the court specifically observed that Baldev Singh cannot be cited as a precedent and that it should be confined to that case..The 3-judge Bench went on to hold that,.“Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle…This is yet another opportunity to inform the subordinate Courts and the High Courts that despite stringent provisions for rape under Section 376 IPC, many Courts in the past have taken a softer view while awarding sentence for such a heinous crime.”.Unfortunately, it appears that this judgment, penned by the then Chief Justice of India Justice P Sathasivam, has been completely ignored..For Justice Devadass, the facts that the victim was an unmarried woman with a child and the assailant was an “eligible bachelor” was reason enough to invoke the proviso and go as far as to send the matter for mediation. Interestingly, this is not the first time he has tried this..He had passed a similar order earlier this year in a rape case involving a 17-year-old victim. In that case, the judge had gone on to hold that,.“It is a pathetic case of a young woman. Petitioner is an eligible bachelor…Some solution has to be arrived at because there is a big question mark before the girl. Her future is very important.”.In fact, Justice Devadass notes that in this case, the “accused had agreed to marry the victim girl” and hence the matter was heading towards a “happy conclusion”..Vrinda Grover, among others, have called for action to be taken against the judge, apart from setting aside the order..“Here is a high court judge who has twice passed this type of order. Either the Chief Justice of India or the High Court Chief Justice has to step in and take action against the judge. It is not acceptable that a person occupying a judicial office in the high court can continue to hold such views.”.Quite ironically, Justice Devadass in the judgment waxes eloquent about the “deplorable” state of women and children in India. But, according to Grover, his ruling betrays a flawed understanding of women’s rights. The advocate strongly believes that gender rights sensitization among officers of the higher judiciary is the need of the hour..“In the ongoing NJAC hearings, senior lawyers have raised issues of corruption, nepotism and inefficiency on the part of judges. But I am yet to hear any argument as to whether the NJAC will provide us with judges whose understanding of the law will be more in tune with women’s rights. Understanding of gender rights should be one of the criteria for appointment of judges.”