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Saturday, June 27, 2015

Rape Update

A comment extracted from Times of India Today

Judgements are not pronounced in a casual way in 99.99% of the cases.They could provoke comment, though. And, I seldom offer an opinion without reading the full judgement, as it is,otherwise, unfair. In the first round, I got this lenghty and thought-provoking commentary. I share it with all.
27 06 2015

The two Judgements of Justice P. Devadoss during the last 2 days, published in the news media generated intense debate throughout the nation and fierce condemnation by the legal fraternity at large. It should also be noted both the Judgements concern the rape victims and they are diametrically opposite.
The learned judge was earlier, the Principle Sessions Judge (PSJ) and I had the opportunity to present a case as a Party in Person for almost 6 months before him. In my humble opinion he is very knowledgeable Judge in the criminal matters, loves intellectual discussion. A pleasant, relief oriented bold and a kind Judge. Remember he was handling the bail portfolio as PSJ and also mediation in the family related matters under Sec 498 A – Domestic Violence Act. He is appreciated for his impeccable integrity and in depth knowledge in criminal law. He adjudicates matters without fear or favour. He is Gold Medallist in LLM. 
With due respect to the eminent lawyers who are highly critical of the First Judgement wherein he ordered mediation for settling the matter without taking into consideration the views of the affected party. On the same breadth in the second Judgement he compared the rapist with a beast and the crime as the most heinous requiring maximum punishment because the crimes are considered to be against the society even though the effected parties are the individuals. 
As a person engaged in research in the Judicial Process I am looking at both the Judgements delivered by the Learned Judge as under: 

First let us take the second Judgement concerning the rape of a 4 year old child comparing the accused as the beast and narrating the ordeal of the victim and the reasoning for dismissing the appeal are cogent, rational and are in line with the Judgements of Honourable Supreme Court and the Jurisprudence of criminal law.
Whereas in the first Judgement ordering Mediation is to be analysed slightly in a different footing because the facts and circumstances are totally different. The Learned Judge known for his intellectual adventurism and mastery over the criminal Jurisprudence looked at the issues in the context of Socio legal jurisprudence. I am of the opinion he was looking for some Justice not by way of inflicting punishment to the accused which is only for 7 years and may end in few years from now.. The facts of the case are that, the girl cohabited with the accused and became pregnant in the belief that the accused will marry her. A child was born to the girl and even after 7 years of the incident the girl is yet to be settled. The learned Judge in the best interest of the girl’s future tried to find a solution deviating from the settled legal position. 

In a civilised world, the present day phenology (punishment system) focuses on reclaiming the delinquent person from repeating the crimes rather than condemning him by inflicting severe punishments – hate the sin but not the sinner – Bapuji’s statement is the guiding force behind this punishment system. In olden days Romans used to punish the rapists by hanging them publicly after allowing public to throw stones against the rapist. In spite of these, rapes have not come down nor the other heinous crimes. In fact several instances of rape/sodomy being committed in the said melee where the public hanging was to take place.

According to Holmes, the definition of law is nothing but what the Judges make through the process of interpretation while adjudicating the matter, in the absence of effective victim compensation mechanism, the learned judge attempted to find a solution for the young girl and the child’s future. I therefore leave it to the readers to come to fare conclusion before criticising it severely. Such brilliant Judges who want to look at the issues by using law as a medium to bring in structural changes in the society should be appreciated. In my humble opinion the learned judge with a humanitarian outlook and like a father of the effected girl tried to find a solution. However in his anxiety forgot the social impact of such far reaching decision. He should have been taken care of by introducing proper checks and balances in the Judgement. I would like to remind the readers the Judgement of Honourable TS Siva Gnanam in a similar rape case where the victim became pregnant and needed to be terminated gave a wonderful Judgement by applying the purposive interpretation keeping in view of the victim’s future but within the parameters of the Act concerning abortion. 

The view of the judicial officer, will always be different (he should go by law) from the general public/ affected parties (goes by emotions). For example, when Duriyodhan fell in the water pond Drowpadhi said – “Andh ka putre andh hota hey!!”. This statement was the reason for annihilation of millions of people in Mahabarath yudh. That works in a dictatorial regime but in a democratic polity, though such insulting statements create severe mental agony to the affected parties, legally they are not punishable even under defamation laws. So the judge will have to go by the law only. 
V Venkata Sivakumar FCA, DISA, LL,M

From the Hindu Update a few minutes back.

Any compromise promising wedlock between a rape accused and the survivor compromises the dignity of the woman”.

Holding that the “dignity of a woman is a part of her non-perishable and immortal self”, the Supreme Court on Wednesday ruled that courts should not fall for the subterfuge of a rapist to corner the traumatised victim into a compromise, or even worse, enter into wedlock with him. 
The judgment delivered by a Bench of Justices Dipak Misra and P.C. Pant serves as a slap on the recent order by a Madras High Court judge, asking a young woman, who was raped at the age of 15, to mediate with her rapist for the sake of the child borne out of the crime. 
“In a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are offences which suffocate the breath of life and sully the reputation. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct,” the Supreme Court held on Wednesday. 
The apex court said that even an offer of wedlock by the rapist is “nothing but putting pressure in an adroit manner”. 
The judgment emphasised that courts should not fall into this trap and adopt a soft approach to a rape case. It said any such kind of liberal approach in a case of rape is nothing short of a “spectacular error” and reflects a lack of sensibility towards the dignity of a woman. 
“Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility,” the apex court held. 
This verdict is based on a case of sexual assault and rape of a seven-year-old in Madhya Pradesh in 2008. 
The Sessions Court convicted the accused, Madan Lal, for the rape of the minor. 
On appeal, however, a Single Judge of the Madhya Pradesh High Court changed the offence from rape to assault on a woman with the intention to outrage her modesty and reduced the jail term to a year. 
The Single Judge's decision was also influenced on learning that the parents of the minor victim had entered into a compromise with the accused. 
Upholding the State government's appeal, the Supreme Court flayed the Single Judge's attitude, quoting from the recent judgment in K. Anbazhagan's case that “the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge”. 
Rejecting any room for compromise, Justice Misra, who wrote the judgment, said that rape is a non-compoundable offence against the society and the parents of the minor victim had no right to settle with the person who violated their child. 
The apex court ordered the Madhya Pradesh High Court to consider the evidence in the case afresh and directed the accused to be taken back into custody.