A Madras high court judge’s decision to release on bail a rape convict and refer the case for mediation with his minor victim to explore the possibility of a marriage between them has created a furor with legal experts terming it “illegal and unethical”.
Former Delhi high court judge SN Dhingra says that this order goes beyond the high court’s inherent powers and is thus illegal.
“The inherent powers can only be exercised where there is no law specifically dealing with the issue. In this case, rape is not a compoundable offence, and it cannot be made so by exercising writ jurisdiction. In a case of rape, there cannot be anything more unethical than this order,” Dhingra told HT.
Experts also questioned whether the judge’s action in sending a rape victim to mediation with her attacker is an action covered by Section 77 of the Indian Penal Code. The provision grants judges immunity from prosecution when acting in exercise of judicial powers or in good faith that their action are lawful.
Former Supreme Court judge Gyan Sudah Misra says it is not acceptable for a judge to exercise his inherent powers in this manner.
“Rape is not an compoundable offense. A judge cannot exercise his inherent powers here. In my view rape cases cannot be sent for mediation. This is not acceptable,” justice Misra said.
Former Delhi high court judge RS Sodhi said the order further victimizes the victim. “It is actually rubbing salt into her wounds,” he says. He adds, “this is a crime against her as well as society. So, does this order mean society also condone crimes like rape?”
However, experts are divided on whether the judge can have immunity under Section 77 IPC. “Section 77 does not cover these actions. This judgment is useless and bad. It is a thing which is otherwise a nullity can never be enforced.” But Justice Misra opines, “As long as there's a legal remedy, in that the prosecution can appeal this judgment, there is no scope to take action against the law," justice Sodhi said.
Senior counsel Meenakshi Arora believes that this judgment could have the worst kind of impact on rape laws. “A judgment like this could have far reaching repercussions. It conveys a message that an offence of rape can be compounded through a simple process of mediation and marriage with the victim. Clearly, any such message is abhorrent. This clearly indicates we need gender sensitization and continuing legal education.”
Read:Madras HC gives bail to rape convict to 'mediate' with victim