A recent decision of the Madras High Court, ordering mediation and reconciliation as justice for a rape survivor and her child born out of rape has sparked debate over the alternate dispute resolutions (ADRs) in cases of such inexcusable offences. The ruling has evoked strong criticism the legal fraternity and from women’s rights activists.
Terming rape an inexcusable offence, experts have condemned the decision of Justice Devadoss, saying that criminal law does not allow for compounding of a serious offence and withdrawal of the case by the victim in such a case will set a dangerous precedent where a rape convict will be assured of walking scot-free if he marries the victim. In fact, the Supreme Court yesterday cautioned the courts, saying such orders of reconciliation were “illegal” and “spectacular errors”. “Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her, which is nothing but putting pressure in an adroit manner; and we say with emphasis that the courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error,” the apex court said.
Besides, “the High Court does not have the power to overwrite expressed provisions of law and its inherent powers can only be exercised where there is no law,” notes retired Delhi High Court judge Justice SN Dhingra.
Activists have termed it as a retrograde order. According to them, whenever a crime is committed, it is no longer a crime against the individual but against the society and should be dealt with strictly.
ADR, which is a method of amicably solving disputes, has been gaining momentum for quite sometime. Indian courts have also been trying to mediate and encourage litigants to find solutions for settling disputes by including marriage of the victim to the rapist, or compensation to the victim, in lieu of imprisonment, rather than engaging in protracted litigation.
However, ADRs, particularly plea bargaining, are only suitable for civil cases like property transactions or debt-recovery transactions, matrimonial, labour, motor accident claims, eviction matters, etc, where essential rights of individuals are not at stake. Heinous crimes like rape are not amenable to plea bargaining or compounding.
The Supreme Court has also criticised the concept of plea bargaining in its various judgments—State of Uttar Pradesh vs Chandrika; Murlidhar Meghraj Loya vs State of Maharashtra; Kachhia Patel Shantilal Koderlal vs State of Gujarat; Kasambhai vs State of Gujarat; etc. It held the practice of plea bargaining as being unconstitutional and illegal as such a provision is likely to be abused. The top court has held that rape cases cannot be settled outside the frame of law and no compromise is permissible in such cases.
Despite the Supreme Court’s and legal fraternity’s strict opposition, the government incorporated a new chapter—XXI-A—on plea bargaining (plead guilty or bargain for lesser sentence) in cases of offences punishable with death or imprisonment for life, or of imprisonment for a term exceeding seven years, in the Code of Criminal Procedure and the same has come into effect since July 2006. This was based on the recommendation of the Law Commission in its 142nd, 154th and 177th reports, which advocated the introduction of plea bargaining. This recommendation finally found support in the Malimath committee report. However, the 2006 amendment over plea bargaining, prevalent in the West, is not applicable in rape cases. Unlike in the US where plea bargaining is for all sort of offences, in India it is not for socio-economic offences or offences against women and children.
Despite plea bargaining being in effect for almost a decade, this method of resolving disputes in India is still in its infancy. But there have been few cases on this. A few years ago a Mumbai court accepted a plea bargain and convicted four foreign nationals—who were accused of stealing diamonds worth R6.6 crore at an international jewellery show—to 21 months’ rigorous imprisonment. The maximum punishment in such cases is usually seven years. Even the Goa High Court set aside an order passed against a foreigner by a lower court in a case of overstaying.
With the changing global scenario, shifting to ADR or plea bargaining from the long and complex litigation process may be one of the best ways to reduce mounting criminal cases, right to speedy trial, lessen the congestion of the courts—which are choked with over 3 crore cases—and relieve the overburdened judiciary. Barring heinous offences like rape, the concept of plea bargaining should be encouraged to settle most pending cases as it can save the accused from harassment, is cost-effective and will save courts’ time.