The words ‘compromise’, ‘mediation’, ‘unwed mother’, ‘social stigma’ loomed in the court room as the judge passed his order for interim bail. The words trailed with the air to the world outside and soon impersonated the spark that started the forest fire. India decried; how could a rape victim be asked to mediate with her rapist?

In a verdict given by the Mahila Court of Cuddalore, Tamil Nadu in 2012, V Madan was convicted for raping a minor and was sentenced to 7 years of imprisonment. The crime was committed in 2008 and the victim bore a child out of the incident. The verdict was appealed. On June 2015, Justice P. Devadass passed an interim bail order and asked the victim and the accused to ‘mediate’ the matter and come to an amicable settlement.

The reasoning of the judge is a reasoning which India has long been professing; redeem a rapist of his sins by forcing him to marry the victim. The judge thought of it as better for the child and the unwed mother to have a man in their life; irrespective of who the man was and the consequences of the same.

This order naturally created a furore. Soon after, the Supreme Court of India in a landmark judgment concretely stated that “there cannot be a compromise or settlement in a rape case as it would be against her honour, which matters the most”. In light of the events and the widespread criticism, the judge quickly recalled his order.

Countless articles have been written since, highlighting the regressive mindset of the judge and preposterousness of asking a rape victim to compromise with her rapist through the tool of ‘mediation’. But what is more perturbing, in my opinion, is the judge’s knowledge about mediation and the legality of such an order.

Alternative Dispute Resolution (ADR); as the name itself suggests is an alternative forum besides the court which can be used to settle a dispute. ADR methods primarily include negotiations, mediation, conciliation and arbitration. Other ADR methods are in essence just variants of these methods. Negotiation is often considered the first step for dispute resolution while arbitration is considered the last resort.

‘Mediation’ means a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by the law of a Member State.

 In cases where there is an intimate connection between the parties, like a matrimonial dispute, or in cases of civil nature, where an amicable settlement may culminate into continuation of business relations, mediation is often advised. But the most important part of mediation is the fact that it is supposed to be a voluntary act. The essence behind this is that both the parties must agree to ‘talk it out’. Moreover the subject matter of the dispute must be eligible for private settlement.

Section 89 of the Code of Civil Procedure,1908, allows the courts to refer cases for ADR. Court ordered mediation is the discretion of the judge. The section specifies that there must be an ‘element of settlement’ in the case for such reference. In the famous Afcons case, the Supreme Court discouraged judicial intervention in ADR processes and highlighted the importance to refer cases to ADR. The judgment also gave a list of cases that cannot be referred to ADR. This list categorically includes criminal cases.

A criminal offence is an offence, not only against a private person, but also the State. Nevertheless, there have been instances before, where a criminal case has been referred to mediation. When in pursuance of the same dispute parties have levied both criminal and civil suits against each other, the dispute can be referred to mediation in light of its civil nature. This mostly happens in matrimonial disputes. Section 498 A (cruelty against women) of the Indian Penal Code, 1860, is a non compoundable criminal offence. Yet in cases of matrimonial disputes where both parties have levied a number of cases against each other, with one being that of cruelty, the cases are referred to mediation.

In the case of , the Supreme Court requested the Law Commission and the Government to examine if the offence punishable under Section 498-A  could be made a compoundable offence. But as of today, there has been no amendment to that law.

Witnessing the surge in 498 A cases, the Supreme Court finally held in K. Srinivas Rao that these cases can be referred to mediation if both parties agree and the judge is satisfied that the case can be mediated. Even in such cases both parties must be willing to settle the matter. The judgment was clear about its intentions when it stated “The judges, with their expertise, must ensure that this exercise does not lead to the erring spouse using mediation process to get out of clutches of the law”

The offence of rape is a non-compoundable criminal offence and cannot be mediated. The judge has erred in this case by giving it the characterization of a matrimonial dispute. The victim was raped when she was 15 and has fought for the past 7 years for justice. She does not seek settlement or a marriage proposal; what she seeks is justice. The judge has misconstrued the essence of mediation by giving this ultra vires order.

There are also cases where a victim willingly agrees to marry her rapist. In 2002, the Delhi High Court acquitted a rape accused because the victim signed an affidavit stating that she was ready to marry him. But what our judiciary fails to understand is that rape is a crime against the society and cannot be absolved just because the victim forgives the accused. With that logic every murder accused must be set free if the family of the victim decides to forgive him.

On the other hand, there are innumerable cases where the court has asked a rape victim to ‘compromise’ with her accused. The problem lies in the deep seated patriarchal mindset of our country. India’s society is more worried about a rape victim’s marriage prospects than her ordeal to fight for justice. It is conveniently forgotten that such an arrangement just means that the next time the rape victim is raped; it would just be her husband asking for what is considered his right.

What also needs to be highlighted is the blatant abuse of the process of mediation. A judge cannot refer cases to mediation according to his whims and fancies. Prudence and reasonability must be used for such reference. The case exemplifies that the need of the hour is better knowledge dissemination amongst judges about the usage of this discretionary right and alternative dispute resolution.

Nevertheless, on a positive note, the controversy coupled with the Supreme Court’s landmark verdict has gotten people talking about an illogical practice that is still prevalent in our society. Moreover, the passage for perfection is always a rocky lane. These small hurdles, in the long run, will only help facilitate better understanding of mediation in India.