Rape is an inexcusable crime. It is not an offence that can be negotiated away. Unfortunately, there have been several instances through the years where the courts have tried to mediate and find ‘solutions’ including marriage of the victim to the rapist, or compensation to the victim, in lieu of imprisonment.
The decision of Justice Devadoss appears to endorse negotiation, or mediation in case of rape. In his judgment, he states that the true victim of the crime is actually the child that the victim gave birth to. Therefore, the court has suggested that through alternate dispute resolution, the accused and the victim find an amicable solution which would then be used to mitigate the sentence of imprisonment. For this reason, the Court had released the accused on bail.
It is true that ADR has been gaining momentum, not only in other countries, but also in India. The Courts have been pushing the agenda of ADR and encourage litigants to settle disputes rather than engage in protracted litigation that would be amenable to further appeals. ADR has been understood as a way to lessen the congestion of the courts and the overburdened judiciary. ADR is used to mediate company matters or divorce petitions but it is regressive to endorse ADR in case of rape as it appears to trivialize the underlying offence.
The victim in this case was 15 years old when she was raped. The accused has claimed that this was not a violent crime, and that it was consensual intercourse. Minors under the age of 16 are regarded as incapable of giving consent, and according to the IPC, in addition to non-consensual rape, sexual intercourse with an underage girl is also rape.
However, the systemic impact of such decisions cannot be underestimated. Endorsing ADR in case of rape undermines the seriousness of the offence and opens out opportunities for those accused to buy their way out, or worse, marry their way out of jail. Such cases should not be made amenable to ADR as they are not a matter to sit and talk out rather an act that has ruined a girl’s life and the most harsh action should be taken to bring the accused to justice.