LAW RESOURCE INDIA

SC snubs govt, media on child labour and prostitution

Posted in CRIMINAL JUSTICE SYSTEM, FUNDAMENTAL RIGHTS, JUVENILE JUSTICE, LIBERTY AND JUSTICE, PIL by NNLRJ INDIA on February 11, 2010

FROM THE INDIAN EXPRESS

Even as the Centre suggested banning use of children in TV reality shows, the Supreme Court on Monday criticised the authorities for failing to enforce the existing laws to prevent exploitation of children for prostitution and labour.The apex court also minced no words in expressing displeasure at the conduct of the media which it said was more focussed on the GDP growth, big business houses and Ambanis’ instead of focussing on issues relating to exploitation of children.

A bench of Justices Dalveer Bhandari and A K Patnaik, while dealing with a PIL on exploitation of children for labour and commercial sex, said even though there are enough laws to combat such offences, the necessary will was awfully lacking in the government.”Our system is in such a way that it is only the most powerful who are able to have their way. It is only the powerful who are in a position to influence.

“Unless people at the top act, nothing will happen.What is the point in passing directions when they are not implemented? We have passed so many directions in Narmada Bachao Andolan case,” the bench said. The apex court made the remarks after Solicitor General Gopal Subramaniam came out with a suggestion that the apex court should pass directions to ensure children are not exploited for labour, including their use for TV reality shows.

http://www.indianexpress.com/news/sc-snubs-govt-media-on-child-labour-and-prostitution/577151/

Molested by the Very Guardians of the Law

Jason Overdorf (Issues)

23 January 2010 Nearly 20 years after he was accused of using his position of power to molest a teenage girl, and 16 years after his victim’s suicide, a high-ranking Indian police official was last month finally brought to justice.  Shambhu Pratap Singh Rathore, a state police inspector general, was convicted of molesting Ruchika Girhotra, a rising tennis star, in 1990. On December 21, the court handed down a sentence of just six months jail time and a $25 fine.

What many in India feel is a miscarriage of justice has prompted a re-evaluation of the widely held belief that India, while it lags behind China by many other parameters, remains morally superior to its economic rival not only because it is a functioning democracy but also because it sees itself as a society governed by the rule of law.The rape trial follows close on the heels of a similar breakdown of the legal system involving the murder of fashion model Jessica Lal. Her killer, the son of a prominent politician, was acquitted in 2006, only to be retried and sentenced to life imprisonment after intense public pressure. The Ruchika case has been splashed across the front pages here since the first verdict was delivered on December 21.

“It shows deep infirmities in our system, which is supposed to bring justice to victims,” said member of parliament Brinda Karat, who is vice president of the All India Democratic Women’s Association. “It highlights a systemic failure.” Under intense public pressure, this week the state of Haryana, where the original incident occurred, registered fresh charges against Rathore that allege he abused his power to scuttle the original investigation, delay his prosecution and harass the victim’s family, eventually driving Ruchika herself to commit suicide. But as television channels and newspapers continue to throw light onto more and more incidents in which police, politicians and other powerful people allegedly used money and influence to subvert justice, the citizenry’s faith in the country’s brilliantly penned, but poorly enforced, laws is at an all-time low. Molested by Rathore, who was both the inspector general of the Haryana state police and the head of the state tennis association at the time, 14-year-old tennis player Ruchika Girhotra sought to punish him by lodging an official complaint.

Investigations stagnated for years after the complaint was filed, during which time Girhotra’s family allegedly suffered constant police harassment, according to new charges levelled by the family on January 5. Rathore allegedly hired goons to vandalise the Girhotras’ home, pressured Ruchika’s school to have her expelled, and got his police cronies to arrest her brother for car theft, according to Pankaj Bhardwaj, the Girhotras’ lawyer. After just three years of this treatment, Ruchika killed herself. She was 17 years old. “(Rathore) was the person who was driving everybody,” Bhardwaj said. “He was the mastermind behind the total conspiracy.”

But the punishment wasn’t over for the victim’s family. Rathore apparently suffered no difficulties because of the criminal charges pending against him. Though technically under investigation for molesting a minor, Rathore was promoted to director general of police in 1994. And over the next 15 years, the Girhotras alleged that Rathore used his position to corrupt the inquest into Ruchika’s death and attempted to bribe the country’s main investigative agency.

In what Bhardwaj says is a first for India, a former joint director in the Central Bureau of Investigation (CBI) has publicly accused Rathore of trying to corrupt the probe into the crime. “He used to come to my chamber and even call up at my residence. He used to offer me favours at various joints. He also tried to influence my investigation team,” R. M. Singh, who headed the probe, told reporters at a recent press conference. When Rathore was convicted, the victim’s family, and the whole country, was outraged by the short duration of the sentence — and Rathore’s beaming smile as he exited the court. But the worst tragedy is that Ruchika’s fate is stunningly common — and the problem appears 
to be growing worse.

A 19-year delay is nothing to India’s supposed rule of law. At last count, there were nearly 4 million cases pending in India’s 21 high courts, a backlog that means thousands of perpetrators roam free for years and others who are denied bail rot away behind bars — sometimes for longer than the maximum sentence possible for their alleged crimes.

For the fairer sex, it’s even less fair. According to official statistics, crimes against women are rising faster than other offenses, while police continue to go slow in investigating them. “There is 100 per cent negligence by the police in cases where women go to them to report an abuse,” said Yasmeen Abrar, a member of India’s National Commission for Women.

Official records show that it takes the police more than a year to begin investigating nine out of 10 sexual harassment cases, eight out of 10 cases of molestation or cruelty by husbands and relatives, and seven out of 10 rapes and dowry deaths. According to Supreme Court lawyer Mayank Misra, these delays often give the accused the opportunity to intimidate witnesses, harass his accuser, call in political favors and eventually quash the case entirely. Especially,
when the perpetrator occupies a position of power.

“There is a nexus between criminals, politicians and the police and bureaucrats,” said Ashok Agarwal, president of the Delhi unit of the All India Lawyers’ Union. In many instances, the police refuse to register cases against politicians, police officials and even powerful criminals, says Agarwal, a prominent public interest litigator. Complainants and
witnesses are threatened. Medical evidence is tampered with. Statements of witnesses are wrongly recorded. Cases are delayed in courts, and relevant witnesses are prevented from appearing. All this in the name of the supposed rule of law. Thanks to a crusading media and an outraged public, Ruchika may, in the end, get justice of sorts. The fresh case filed against Rathore on Jan. 5 reintroduces the charge that Rathore abetted Ruchika’s suicide by harassing her and her family — an offence that carries a much more serious penalty than molestation. But even if he has been convicted of molestation, Rathore — who says his accusers are using the media to harass him — has rights, too. And this arbitrary solution is as much an indictment of the system as the court’s original judgment. It is not the rule of law, but rather another subversion of the legal process — this time by the media, the voters, and politicians. The shame is that the last ditch move to render justice at the expense of the law may just convince India’s outraged citizens that they can continue to muddle along.

www.globalpost.com

http://www.khaleejtimes.com/DisplayArticleNew.asp?xfile=/data/opinion/2010/January/opinion_January139.xml&section=opinion

SUPREME COURT RULES FOR IMPLEMENTATION OF LAWS ON CHILD PROTECTION

The Supreme Court Friday asked all states and union territories to “forthwith” set up three types of statutory bodies in all districts, as mandated by a 2000 central law for the welfare of juveniles and children in the country. Two days after ordering Delhi government to establish night shelters for thousand of the capital’s homeless, a bench of Justice Dalveer Bhandari and Justice A.K. Patnaik directed all states to set up statutory bodies under the Juvenile Justice Act, 2000, within six weeks.

ENSURE CHILD PROTECTION

ENSURE CHILD PROTECTION

“It has become imperative to direct all the states to implement the provisions of the law forthwith and establish Juvenile Justice Board, Child Welfare Committee and special juvenile policing units within 6 weeks from today,” the bench ordered.On a suggestion by Solicitor General Gopal Subramanium, the bench also deputed the National Commission for the Protection of Child Rights as the nodal agency to supervise the implementation of the apex court order.The three statutory bodies that the bench ordered state governments to set up in all districts as per the provisions of the Juvenile Justice Act are: Juvenile Justice Board – a court to try juvenile delinquents, Child Welfare Committees (CWC), and the special police units to handle the cases related to juveniles.The bench gave the order while hearing a 2006 lawsuit by a civil society organisation, Bachpan Bachao Andolan (BBA), which sought implementation of the various provisions of theJuvenile Justice Act, 2000.The bench gave the order as senior counsel Colin Gonsalves, appearing for the BBA, told the court that various key provisions of the law remain unimplemented till date despite lapse of nearly a decade after the central legislation was enacted.During the hearing, the bench singled out poverty as the reason why the children keep returning to workplaces, including the hazardous ones, despite ban on child labour.Citing the example of Brazil, Chile and various Latin American countries, the bench observed that child labour was not unique to India and wanted the government to learn from Brazilian experience, where the government would give some financial incentives to the poor parents of the children withdrawn from workplaces and sent to schools.

ENSURE CHILD PROTECTION

ENSURE CHILD PROTECTION

We at Shakti Vahini and as Activist working on Child Rights term this order as an important Land Mark in the cause for proper laws on Child Protection.

Our crimes against our children

Praveen Swami IN THE HINDU JANUARY 21, 2001

By the grim standards of the dystopia India’s children inhabit, S.P.S. Rathore’s crime was utterly ordinary.

In December last, Indians watched in outrage as S.P.S. Rathore, former Haryana Director-General of Police, smirked at the end of court proceedings which saw him receive a six-month prison sentence for sexually abusing a teenager 19 years ago.

Not far from the Chandigarh courtroom where Rathore was convicted, a panchayat in Rohtak gathered to discuss the fate of a seven-year-old girl who had been sexually abused by a retired schoolteacher. The panchayat ordered that the hair of the perpetrator, Sushil Kumar, be shaved off — but asked the victim’s family not to inform the police. It was only three weeks later, after Kumar’s sons threatened the family, that the matter was reported to the police. The child’s story was buried in inside pages of local newspapers; the police say evidentiary issues render it unlikely the perpetrator will ever be punished.

Kumar is not the only paedophile who has not received national attention. Few know the story of a two-year-old raped by a construction contractor in Bangalore, a 10-year-old girl from Valsad raped by her uncle or the Latur teenager raped by three young men in her village and hanged from a jamun tree. Part of the reason Rathore’s appalling crime drew attention was that it fitted neatly with tropes of villainy familiar from pop-culture: among them, uniformed criminals immune from the law and powerful politicians who guarantee them impunity.

But the truth India has shied away from these past weeks is this: Rathore’s crime was, by the standards of our society, utterly ordinary. For the most part, India’s children live in a nightmare; a dystopia founded on our collective complicity and silence. By the Government of India’s account, more than two-thirds of Indian children experience beatings in their homes, schools, workplace and government institutions — beatings which, if conducted in prison cells, would count as torture. Every second child in India, the government says, also faces one or more forms of sexual abuse.

Yet, no government has found the time or energy to enact a law against the abuse of children — leaving the authorities, when they can bestir themselves to deliver justice, to respond using legalisation intended to prevent prostitution, beggary, trafficking and rape. There is no institutional machinery to investigate schools, homes and children’s workplace for sexual and physical abuse. There are no police officers trained in the special skills needed to deal with child abuse. Barring a handful of organisations and individuals working to address the needs of abused children, there is no resource which victims and their families can turn to for help.

Terrifying facts

In 2007, the Union Ministry of Women and Child Development released the thoughtful —and terrifying — Study on Child Abuse in India. More than 12,000 children were polled to arrive at an empirical picture of the scale of beatings and sexual crimes that Indian children endure. Fifty-three per cent of the children said they had encountered “one or more forms of sexual abuse;” 68.99 per cent said they had suffered physical abuse, including beatings. More than a fifth reported severe sexual abuse, including assault, having been compelled to fondle adults’ private parts, exhibit themselves or be photographed nude. Well over half of those reporting severe sexual abuse were boys, the study found.

Popular wisdom holds that sexual abuse takes place when children are in environments outside the supposedly safe confines of their homes and schools. That, the study found, was simply not true. Fifty-three per cent of children not going to school said they had been sexually abused in their family environment. Just under half said they had encountered sexual abuse at their schools. These figures, interestingly, were about the same as children in institutional care who said they had been sexually abused — 47.08 per cent. Most vulnerable were children in workplaces, 61.31 per cent of whom had been sexually abused.

Boys in all but four of 13 States — Gujarat, Madhya Pradesh, Maharashtra and Goa — were found to be more at risk of sexual abuse than girls. In Delhi, a staggering 65.6 per cent of the boys reported that they had been sexually abused.

Most at risk of serious sexual abuse, the study found, were children between 11 and 18 — although the group between six and 10 also reported significant levels of assault. Analysed by age group, the study states, sexual abuse was reported by “63.64 per cent child respondents in the age group of 15-18 years, 52.43 per cent in the age group of 13-14 years and 42.06 per cent in the age group of 5-12 years.” Assam, Delhi and Andhra Pradesh were found to have the highest levels of sexual abuse, with Uttar Pradesh, Gujarat and Goa recording the lowest.

We know, from separate studies, that the use of children in prostitution is also widespread. In their 2005 study, Trafficking in Women and Children in India, S. Sen and P.M. Nair estimated that there are up to half-a-million girl children from across the South Asian region working as prostitutes in India.

Elsewhere in the world, the existence of well-functioning justice mechanisms — and an open public debate on child sexual abuse — seems to have helped contain the problem to at least some extent. In the United Kingdom, a 2000 study by the National Study for the Prevention of Cruelty to Children found that about 16 per cent of children experienced sexual abuse before the age of 16. In the United States, one in four girls and one in six boys reported similar experiences. Horrific as these figures are, they are still well below the levels the Government of India’s study suggests are prevalent in our country.

Victims of violence

Depressingly, sexual abuse is only part of a wider gamut of violence. Sixty-nine per cent of the children polled reported having been physically abused — a term the authors of the Study defined as behaviour manifesting itself in kicking, slapping or corporal punishment at homes, schools, institutions and workplaces. In all the 13 States covered by the study, the incidence of physical abuse directed at children was above 50 per cent — a sign of just how widespread and legitimate the use of force is considered across the country. More than 80 per cent of children in Assam, Mizoram, Delhi and Uttar Pradesh reported physical abuse.

Most of the victims of physical abuse, the Study found, were very young children. Forty-eight per cent of the respondents who reported physical abuse were between five and 12 years old, while 26.29 per cent were 13 or 14. Older children, aged between 15 and 18, seemed to be targeted less for violence; just over a quarter reported encountering abuse. Boys reported encountering violence more often than girls in all States except Gujarat and Kerala. “In all age groups, an overwhelming majority of children (65.01%) reported being beaten at school, which means that two out of three children are victims of corporal punishment.”

The findings of the Study, its authors noted, were broadly corroborated by several other independent studies. Maulana Azad Medical College researcher Deepti Pagare found that over three-fourths of children in Delhi’s Child Observation Home had reported being subjected to physical abuse. Signs of abuse were found on the bodies of about half the children studied by Dr. Pagare. Fathers made up over half the reported perpetrators, and Dr. Pagare found a significant association between physical abuse of children and domestic violence in homes as well as substance abuse. Save the Children and Tulir, in a 2006 study conducted in West Bengal, found that almost three-quarters of child domestic workers had been physically abused. In 41.5 per cent of cases, the perpetrator was a member of the employers’ family.

What needs to be done? For one, India’s criminal justice system simply doesn’t have either the legal instruments or police infrastructure to deal with crimes against children. Despite calls from campaigners and child-rights groups, India is yet to pass a specific law on child sexual abuse — a legislative failure that makes prosecution in many situations almost impossible. Early this year, Punjab and Haryana High Court judges Mukul Mudgal and Jasbir Singh announced that they intended considering guidelines for the prosecution of child abuse cases. However, thoroughgoing criminal justice reforms will be needed for such efforts to yield results. Just 0.034 per cent of the Plan expenditure in 2006-2007 — an appalling figure — was committed to child protection.

In 1974, the National Policy for Children declared children a “supreme national asset.” No country in which two-thirds of children report beatings, and half experience sexual abuse, can make that claim with honesty. We must rip away the shrouds of silence that conceal the sheer pervasiveness of child abuse in our society. Our silence and inaction against the paedophiles in our homes, schools and neighbourhoods make us complicit in the horrific crimes being perpetrated against our children.

Source:  http://www.hindu.com/2010/01/21/stories/2010012155080800.htm

Minor offence?

KIRTI SINGH IN FRONTLINE ,  JANUARY  , 16-29 2010

THE molestation case of a minor girl by the former Director General of Police of Haryana, S.P.S. Rathore, reflects in a microcosm many of the ills that plague the criminal justice system in our country. The case highlights the lacunae in both the procedural laws and the substantive laws relating to sexual assault, particularly of minors. It shows how an influential accused can manipulate the legal system. Rathore used his position as a police officer to subvert the law and file false cases against the girl’s brother and reportedly managed to delay the case for several years. Finally, even though he was convicted, Rathore managed to get away with a light sentence, not only because of a judicial mindset but also because the offence of molestation is punishable with only up to two years’ imprisonment.

In fact, amendments to laws relating to sexual offences have not been a priority for successive governments. In spite of repeated suggestions and demands by the All India Democratic Women’s Association (AIDWA) and other women’s groups, governments, including the previous United Progressive Alliance (UPA) government, have refused to amend the century-and-a-half old laws relating to sexual assaults in the Indian Penal Code (IPC).

Women’s organisations and groups have pointed out how the definitions relating to rape, molestation and ‘eve-teasing’ are flawed and not reflective of women’s experience of these crimes. They have also emphasised the urgent need to differentiate between sexual crimes committed against adult women and those committed against minors. The National Women’s Commission has reiterated these demands. The Law Commission has also, in its 172nd report, suggested an overhaul of the substantive and procedural laws dealing with rape, molestation and sexual harassment (popularly known as eve-teasing) against women and children.

The Rathore case highlights how sexual assault is viewed as a trivial crime not only by the law but by many others, including those in positions of authority. Rathore was given two promotions and made Inspector General of Police in 1990 and DGP of Haryana in 1999. The minor girl was molested about 19 years ago, on August 12, 1990, by Rathore, the then Deputy Inspector General (DIG) of Police, in the office of the Haryana Lawn Tennis Association, of which he was the president.

It has been reported that the initial trauma, accompanied by the persistent harassment, led to the girl’s suicide three years after the crime. It is an acknowledged fact that normally the trauma suffered by a minor victim of sexual assault is greater than that suffered by a major. Suggestions have been made in the past that police stations must be associated with doctors and psychologists, who should counsel these victims as soon as possible.

The case involving Rathore was registered 10 years after the incident, after a writ petition was filed in the High Court on the victim’s behalf by her friend’s mother and after an appeal in the Supreme Court. The AIDWA and other women’s organisations and groups have, time and again, complained about the difficulty in registering a first information report (FIR) owing to gender bias and corruption among large sections of the police force. They have demanded that non-registration of an FIR be made an offence.

The Law Commission, in its 83rd report on “Rape and Allied Offences”, suggested that a new section, 166 A, should be added to the IPC to make the police accountable for deliberate inaction and disobedience of law. Therefore, while the Union Home Minister’s reported suggestion to the police to register FIRs immediately is a welcome first step, the criminal law will also have to be amended to make the police culpable.

The case against Rathore was filed under Sections 354 (molestation) and 509 (harassment) of the IPC. No case was filed against him and the other police personnel and others for threatening the victim and her friend and their families. No action was taken against those who filed false cases against the victim’s brother at Rathore’s instance. These illegal acts were completely disregarded by the police machinery and the Haryana government, and no cases were filed against Rathore and those who acted on his behalf for criminal intimidation, conspiracy and filing of false charges under Section 211.

While some FIRs have now been filed against Rathore, and the Central government has made known its intention to fast-track these and other cases of molestation/sexual assault and amend certain other procedural sections, these measures by themselves are not enough to ensure justice to victims of sexual crimes.

It has been argued that for a case of abetment to suicide an intention to abet the suicide is necessary. The abetment should also be proximate in time to the suicide. In Gurbachan Singh vs Satpal Singh, in 1990, the Supreme Court held that persistent ill-treatment of a woman for dowry amounted to abetment to suicide.

In a case in 1989, the Andhra Pradesh High Court held that “the cumulative effect of the incidents of harassment spread over the period after the marriage had to be considered”. Section 107 of the IPC, Explanation 2, states: “[W]hoever… does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.”

Under Section 354 of the IPC, molestation is defined as “assault or criminal force” by a man with an intention to “outrage the modesty of a woman” or “knowing it to be likely that he will thereby outrage her modesty”. The crime is cognisable and bailable. The section is problematic not only because it is couched in archaic and meaningless language, but also because all forms of sexual assault other than rape have been included in it.

To ensure that the law relating to child sexual abuse is reflective of the exact nature and seriousness of the abuse, AIDWA and others have suggested a number of changes to it. They have suggested that the provision relating to molestation in Section 354 should be amended to redefine molestation as unlawful sexual contact and any man who touches/assaults a woman with a sexual purpose should be liable for imprisonment up to three years and with fine.

They have also suggested that if a child is molested or forced or incited to touch the body of any other person, the imprisonment should extend up to five years along with fine. If the molester is a person who is in a position of trust or authority towards the minor or is a person on whom the minor is dependent, the imprisonment should extend up to seven years. This suggestion should also apply to custodial molestation.

Definition of rape

It has further been recommended that the definition of rape should be enlarged to ensure that some of the forms of child sexual abuse are also considered rape. Such a definition would be in accordance with international legal standards, including the definition of rape by the International Criminal Tribunal for the former Yugoslavia (ICTY). The International Criminal Tribunal for Rwanda (ICTR) has defined rape in even broader terms, as being “a physical invasion of a sexual nature, committed on a person under circumstances which are coercive”.

Apart from these changes, certain procedural amendments are necessary to ensure justice in cases of child abuse. In Sakshi vs Union of India, the Supreme Court held that a child’s statement should be recorded in court without the child having to face the abuser.

Thus, the court held that a videotaped interview of the child’s statement or the child’s testification behind a screen or via closed-circuit television should be permitted. It further held that the cross examination of a minor should only be carried out by a judge based on written questions from the defence, and that the minor should be given sufficient breaks as and when required.

The Code of Criminal Procedure (Amendment) Act, 2008, which has still not been notified, stipulates that a rape victim’s statement to the police should be recorded by a woman police officer at the victim’s residence or at a place chosen by her, in the presence of her parents or guardians or near-relatives or a social worker of the locality. It further states that the investigation of a child-rape shall be completed within three months and that the trial and inquiry should be completed within a period of two months from the date of commencement of the examination of witnesses. These provisions should extend to all cases of child sexual abuse. In most cases of child abuse, the child is not able to express the exact nature of abuse. It is, therefore, necessary to allow experts such as child psychologists and paediatricians to depose on behalf of the child.

It has been said that the seriousness with which a judge views a crime is reflected in the sentence he awards. Rathore was awarded only a six-month imprisonment, ostensibly because he was old and had been subjected to a prolonged trial. It is ironic that though the accused was reported to be mainly responsible for the delay, the court overlooked this and also the fact that he was not so old that sending him to prison would serve no purpose. In fact, several previous judgments show that rapists and those who have sexually abused children have often got away with fairly light sentences. Apart from a higher maximum, minimum sentences must be prescribed for these offences.

Finally, even though several laws now stipulate time limits within which a case should be tried and the judgment given, these laws are not followed by large sections of the judiciary. The High Courts and the Supreme Court will have to ensure that the time limits are adhered to by censuring errant judges.

Kirti Singh is Legal Convener, All India Democratic Women’s Association.

Source:  http://www.frontlineonnet.com/stories/20100129270201600.htm

The rot within

V. VENKATESAN IN THE FRONTLINE,  JANUARY 16-29 2010

The inordinate delay in the conviction and sentencing of S.P.S. Rathore raises uncomfortable questions about India’s criminal justice system.

THE belated conviction and sentencing of S.P.S. Rathore, former Director General of Police, Haryana, for molesting a minor girl two decades ago has certain lessons for India’s criminal jurisprudence. There was outrage after the trial court’s ruling on December 21 for more than one reason, which included the inordinate delay in the filing of the first information report (FIR) after the incident and the sentence – six months’ imprisonment and a fine of Rs.1,000 – that is lighter than what is warranted under the Indian Penal Code (IPC). Above all was the shocking discovery by civil society that Rathore had evaded all these years charges of harassment of the victim and abetment to her suicide, destruction of evidence and tampering with her post-mortem reports, illegal confinement of her brother and attempt to murder him, criminal conspiracy and misuse of power.

Although the victim made the complaint regarding the offence on August 16, 1990, the FIR was registered only on December 29, 1999. That too only after the intervention of the Punjab and Haryana High Court. This was upheld by the Supreme Court.

An FIR refers to information given by anyone to the officer-in-charge of a police station in relation to the commission of a cognisable offence, and which is first in point of time, and on the strength of which the police begin investigation into that offence. Section 354 (assault or use of criminal force on a woman with intent to outrage her modesty) of the IPC, under which Rathore has been convicted, deals with a cognisable offence. The non-registration of an FIR for nearly a decade after the commission of the crime meant that Rathore could evade arrest and interrogation during that period. Had the FIR been promptly registered before the girl committed suicide in 1993, it is believed, the evidence against Rathore could have been stronger than what the court could rely on after her suicide. Rathore even challenged the authenticity of the victim’s signature on the original complaint submitted to the authorities in 1990. The trial court, however, relied on the evidentiary value of signatures of others on the complaint for basing its conviction.

In order to minimise the chances of the police not filing an FIR against a police officer, Union Home Minister P. Chidambaram, on December 28, urged them to register all complaints as FIRs. The heads of police stations, he pointed out, could be asked to give specific reasons for registration or non-registration of a case after receiving a complaint. Even if a complaint is false, the police have to register an FIR and investigate it before closing it, he advised the States, which have the exclusive responsibility for the police. Chidambaram, however, ruled out any formal advisory to the States on the issue.

Observers suggest that an amendment of the Code of Criminal Procedure (Cr.P.C) to make FIRs mandatory on receipt of a complaint might help. But that would require a huge increase in the number of police personnel, for which the States and the Centre are not ready financially.

It appears, therefore, that the Home Ministry is proposing superficial reforms, which are neither practical nor relevant to address the root cause of cases like that of Rathore who allegedly manipulated the system in his favour. Unfortunately, much of the anger against Rathore has not manifested in terms of a campaign for reforms in the police force.

Most State governments are reluctant to comply with the Supreme Court directives issued in September 2006 in the Prakash Singh case. These directives aim to insulate the police force in the States from political pressure and make it truly professional, besides making legislative changes. Even the Centre has not shown any enthusiasm to carry out police reforms. The court has now set up a monitoring committee with a two-year mandate to report on compliance with its directives.

The six months’ imprisonment and the Rs.1,000 fine for Rathore comes when the maximum punishment under Section 354 of the IPC is two years. The trial court’s justification of the lesser sentence citing the prolonged trial and Rathore’s age (68 years) was least convincing to any observer.

Following the trial court’s judgment, and the uproar in the media and civil society, the Haryana government set up a special investigation team (SIT) to investigate the three fresh FIRs registered on the basis of complaints filed by the victim’s brother and father, and after obtaining legal advice. These FIRs pertain to the non-bailable charge, under Section 306 of the IPC (abetment to suicide), of attempt to murder and harassment of the victim’s brother, doctoring of the post-mortem report of the victim after her suicide.

Rathore has questioned the legality of these FIRs, while seeking anticipatory bail. The Punjab and Haryana High Court and the Supreme Court have reviewed two of these charges and have given relief to Rathore. In the first case, Justice R.C. Kathuria of the Punjab and Haryana High Court quashed an order of the Special Judicial Magistrate, CBI, Ambala, dated October 23, 2001, concluding that a prima facie case for the addition of offence under Section 306 of the IPC was made out against Rathore and, accordingly, directing the committal of the case to the Court of Sessions. Justice Kathuria, while giving relief to Rathore, relied on the fact that at no stage had the victim made any statement to the police during the investigation of the case and that until her death in 1993 she had never come in contact with Rathore directly.

The Judge seems to have overlooked the fact that the police did not investigate the molestation case until 1999 when the FIR was filed and that there was no occasion for the victim to make a statement to the police.

The Special Judicial Magistrate, Central Bureau of Investigation (CBI), Ambala, added the offence under Section 306 IPC in the CBI’s charge sheet on the basis of an application made by Madhu Prakash, the mother of Aradhana, the victim’s friend and an eyewitness to the molestation. In her application, Madhu Prakash stated that the CBI, during the investigation, had recorded the statement of key witnesses, including herself, that Rathore had made life hell for the victim, which led her to commit suicide in 1993. Additionally, it was also submitted that the victim’s brother was falsely implicated in six criminal cases at the behest of Rathore. Of these, the court discharged him in four cases. In the remaining two, the police found that the allegations were not substantiated and dropped the proceedings against him.

More important, it was also brought to the notice of the SJM that the CBI had not examined the victim’s brother and had not taken into account the post-mortem report and the inquest report of the victim. Before the SJM, the CBI contested Madhu Prakash’s application for inclusion of Section 306 of the IPC in its charge sheet because it did not find the applicability of Sections 306 and 509 (word, gesture or act intended to insult the modesty of a woman) against Rathore.

However, the CBI took a different stand before Justice Kathuria. It said the witnesses had said during the investigation that Rathore had indeed harassed the victim, her friend Aradhana and their family members after the molestation incident. The witnesses had also apparently said that the victim could not even visit the nearby market and that it was Aradhana who used to make minor purchases for her. The CBI also said that the fact of the false implication of the victim’s brother in criminal cases and his being beaten up by personnel of the Haryana Police at the behest of Rathore were reported to it.

The Investigating Officer of the CBI verified these statements of witnesses and summed up his findings. First, he said, the victim’s name was struck off from the Sacred Heart School, Chandigarh, in September 1990 because of non-payment of fees from April 1990 onwards. Second, he cited the statements of the victim’s grandfather and two maternal uncles that the victim’s death was from taking weight-reduction medicines, and that they did not suspect the involvement of anyone in her death.

Third, he said that the victim’s brother did not make himself available and hence could not be examined. Fourth, contradicting the statements of the victim’s grandfather and the uncles, he suggested that the cause of the victim’s death, as per chemical examination, was poisoning. Based on the I.O.’s findings, Justice Kathuria concluded that Section 306 did not apply to Rathore.

Did the CBI refuse to include Section 306 in its charge sheet against Rathore under pressure? Former CBI joint director R.M. Singh said his attempts to charge Rathore with abetment to suicide were thwarted. When asked why the CBI, during his term, did not charge Rathore with abetment to suicide of the victim, the CBI’s then Director, R.K. Raghavan, said: “The insinuation that the CBI acted under pressure from the accused is without basis. Whatever decisions were taken were on the basis of facts collected by the Investigating Officer and later subjected to strict legal scrutiny. These decisions have since been upheld by the court.”

On April 12, 2002, the Supreme Court rejected Madhu Prakash’s appeal against Justice Kathuria’s judgment without stating any reasons. Observers point out that both the High Court and the Supreme Court only discharged (and not acquitted after a proper trial) Rathore from Section 306. Therefore, a fresh FIR making the charge of abetment to suicide is valid, they say.

Rathore got relief again from the Supreme Court in 2005, when it set aside the order of the Punjab and Haryana High Court directing the District Judge to conduct an inquiry to ascertain the truth of the averments made by the victim’s brother in his affidavit on December 3, 2001, that he was implicated in false criminal cases and harassed by the police at the instance of Rathore. The High Court had sought to know from Rathore and the Haryana government why they should not be burdened with the compensation awarded to the victim’s brother for the harassment caused to him by falsely implicating him in car theft cases. The Supreme Court gave relief to Rathore on technical grounds by holding that neither the news report (on the basis of which the High Court took suo motu action) nor the judgment discharging the victim’s brother in the car theft cases mentioned Rathore’s involvement. The High Court had deemed it proper to direct an inquiry since the matter was of serious nature involving the violation of the fundamental rights of the victim’s brother.

On January 3, the Central Police Awards Committee of the Ministry of Home Affairs decided to strip Rathore of his Police Medal, awarded in 1985 for meritorious service.

It also took a generic decision to authorise the Ministry to recommend the withdrawal of police medals from all persons who are convicted for moral turpitude and for an act that brings disrespect to the police forces. Union Law Minister M. Veerappa Moily has proposed a new law, Sexual Offences (Special Courts) Bill, 2010, to make character evidence illegal and sexual offences cognisable.

These steps, though important, are inadequate to address the concerns in the aftermath of the Rathore case. In an open letter to Moily on January 5, the representatives of 14 women’s groups and 44 leading women’s activists pointed out that Section 354 of the IPC did not redress sexual harassment of women in public or private spaces. It assumes that only some women and children have modesty and are seen as deserving the protection of law, they said.

They have suggested a gradation of sexual assault which squarely name sexual harassment, molestation, stalking, parading and stripping as sexual violence (not amounting to rape). Hopefully, various civil society groups will seek to influence the government and Parliament to reform suitably the current laws concerning violence against women.

Read the Article at: http://www.frontlineonnet.com/stories/20100129270200900.htm

CrPC AMMENDMENTS 2008 TO BE NOTIFIED

THE CAMPAIGN FOR CHANGES IN LAW FOR PROTECTION OF VICTIMS GOT A HUGE WIN WHEN CENTRAL GOVERNMENT DECIDED TO NOTIFY THE CrPC AMMENDMENTS WHICH RECEIVED THE  PRESEDENTIAL SIGNATURE LAST YEAR IN JANUARY 2008. THIS THE CENTRAL GOVERNMENT WAS FORCED TO DO DUE TO THE SERIOUS LAPSES IN RUCHIKA CASE. THE MEDIA NEED TO BE LAUDED AND PREAISED FOR RAISING THESE LAPSES AND CREATING A NATIONAL CAMPAIGN. THE SHAKTI VAHINI TEAM ALONG WITH NATIONAL NETWORK OF LAWYERS FOR RIGHTS AND JUSTICE, NOIDA LOK MANCH, ACTIVIST FOR GOOD GOVERNANCE AND MEMBERS OF THE NATIONAL MEDIA COALITION WERE ONE OF THE FIRST GROUPS TO HIT THE STREET AND SUPPORT THE JUSTICE FOR RUCHIKA CAMPAIGN. A REPRESENTATION WAS SUBMITTED TO SHRI VEERAPPA MOILY UNION LAW MINISTER.

SHAKTI VAHINI ,NATION AL MEDIA COALITION , NATIONAL NETWORK OF LAWYERS FOR RIGHTS AND JUSTICE HIT THE STREET AT JANTAR MANTAR TO SUPPORT THE JUSTICE FOR RUCHIKA CAMPAIGN. THE NATION WAS ANGRY AND CIVIL SOCIETY PROTESTED ACROSS THE COUNTRY. THE MEDIA TOOK THE CAMPAIGN IN A BIG WAY AND IN THIS TOGETHER EVERY ONE ENSURED THAT VICTIM PROTECTION AMMENDMENTS WERE NOTIFIED.

SHAKTI VAHINI ,NATIONAL MEDIA COALITION , NATIONAL NETWORK OF LAWYERS FOR RIGHTS AND JUSTICE HIT THE STREET AT JANTAR MANTAR TO SUPPORT THE JUSTICE FOR RUCHIKA CAMPAIGN. THE NATION WAS ANGRY AND CIVIL SOCIETY PROTESTED ACROSS THE COUNTRY. THE MEDIA TOOK THE CAMPAIGN IN A BIG WAY AND IN THIS TOGETHER EVERY ONE ENSURED THAT VICTIM PROTECTION AMENDMENTS WERE NOTIFIED.

AS ACTIVIST FIGHTING FOR CHANGES IN LAW FOR PROTECTION OF VICTIMS THIS HAS BEEN A LONG STANDING DEMAND AND THE GOVT BY ACCEPTING THESE AND BY NOTIFYING THE AMENDMENTS HAVE LAID DOWN THE ROAD FOR VICTIM CENTRIC JURISPRUDENCE IN WHICH THE CAUSE OF VICTIMS WILL BE IMPORTANT INGREDIENT .

THE NEXT FIGHT FOR WE ACTIVISTS AND CAMPAIGNERS WILL BE TO GET THE COMPENSATION PART OF THIS AMMENDMENT IMPLEMENTED IN SPIRIT . ONCE PROVIDING COMPENSATION BECOMES A STATE LIABILITY THERE IS NO DOUBT THAT STATE WILL TAKE STRONG STEPS TO REDUCE SUCH CRIMES.

THIS WIN SHOULD BE DEDICATED TO THE THOUSANDS OF VICTIMS WHO HAVE SILENTLY SUFFERED DUE TO THE LAPSES IN THE LAW.

THE IMPORTANT PROVISIONS WHICH HAVE BEEN NOTIFIED ARE :

Definition of a Victim:

In section 2 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the principal Act), after clause (w), the following clause shall be inserted, namely:—‘(wa) “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir;’

Victim Can engage Advocate to support and help the Prosecution

In section 24 of the principal Act, in sub-section (8), the following proviso shall be inserted, namely:— “Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section.”

Statement of the Victim to be done in a safe place or a place of her choice and by a women police officer

In section 157 of the principal Act, in sub-section (1), after the proviso, the following proviso shall be inserted, namely:—

“Provided further that in relation to an offence of rape, the recording of statement of the victim shall be conducted at the residence of the victim or in the place of her choice and as far as practicable by a woman police officer in the presence of her parents or guardian or near relatives or social worker of the locality.’’.

Use of Audio Video for Statements

In section 161 of the principal Act, in sub-section (3), the following provisos shall be inserted, namely:—

‘‘Provided that statement made under this sub-section may also be recorded by audiovideo electronic means.’’.

Use of Audio Video for Confession/Statement

In section 164 of the principal Act, in sub-section (1), for the proviso, the

following provisos shall be substituted, namely:—

“Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:

Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.”

Investigations of Child Sex Abuse to be done in time bound

In section 173 of the principal Act,—

(a) after sub-section (1), the following sub-section shall be inserted, namely:—

“(1A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.”;

b) in sub-section (2), after clause (g), the following clause shall be inserted, namely:—

“(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under sections 376, 376A, 376B, 376C or 376D of the Indian Penal Code.”.

Witness Can Be Done By Using Electronic Means

In section 275 of the principal Act, in sub-section (1), the following proviso shall be inserted, namely:—

“Provided that evidence of a witness under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of the offence.”.

In  Camera Trials and identity protection

In section 327 of the principle Act,—

(a) in sub-section (2), after the proviso, the following proviso shall be inserted, namely:—

“Provided further that in camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.”;

(b) in sub-section (3), the following proviso shall be inserted, namely:—

“Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.”.

Victim Compensation

After section 357 of the principal Act, the following section shall be inserted, namely:—

“357A.

(1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.

(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).

(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.

(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.

(5) On receipt of such recommendations or on the application under sub-section

(4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.

(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit.”

Right to appeal for the Victim against the verdict of the Trial Court

In section 372 of the principal Act, the following proviso shall be inserted, namely:—

“Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”.

Rathore isn’t the only guilty man around

BY VIR SANGHVI IN HINDUSTAN TIMES

Such is the reality of today’s India that there is never a shortage of cases that leave us moved and indignant. But every now and then, there is a case that also makes us thoughtful. The Ruchika case is one such instance. In case you haven’t been following the details of the case, here’s what happened.

Ruchika was a happy, school-going 14-year-old with a passion for tennis. As often as she could, she would practise at the state tennis association’s courts. At that time, a police officer called S.P.S. Rathore was president of the Haryana Lawn Tennis Association. In August, 1990, Rathore called Ruchika to his office and molested her. Ruchika was traumatised, told family friends and eventually her father found out. Nine days later, on August 21, 1990, she recorded a statement before the then DG of Haryana, R.R. Singh. That should have been enough to finish off Rathore’s career.  Instead, it finished off Ruchika — and eventually, nearly finished off her family.

Rathore contacted Ruchika’s father and said that if she did not withdraw the complaint, he would destroy the family. He proved as good as his word. When the complaint was not withdrawn, he sent policemen to Ruchika’s house to threaten the family. They would be thrown out of the house and arrested, they were told. Then, goondas began turning up at night and throwing stones at the house. During the day, they would scream filthy abuse at Ruchika. The family could not complain because the goondas appeared to have police protection. Next, false cases of auto-theft were registered against Ashu, Ruchika’s brother. When the family still did not buckle under, Ruchika was thrown out of one of Chandigarh’s top schools where she had studied since she was a child — and where Rathore’s daughter was also a student. She had to give up tennis, her great passion. She began to live like a prisoner in her house.

Then, the police arrested Ashu and began torturing him. He was beaten up again and again, often in the presence of Rathore who threatened him even as his policemen tortured the boy. In October, 1993, Ashu was picked up by the police and according to his own statement, was handcuffed and paraded around the neighbourhood. “The police officers were abusing my sister and father. I was like an animal in a cage…my father begged the police to be afraid of God and not to inflict this torture on me.” Ashu was beaten up again in jail. He was denied food and water. When eventually, he was released on December 23, 1993, he had another shock waiting for him. Unable to live this way, Ruchika had committed suicide.

The false cases against Ashu were thrown out by the courts. But the family’s torture did not end there. When Ruchika’s father tried to get justice for his dead daughter, he was threatened again and driven out of his home. He went underground to avoid a vengeful Rathore and spent several years in Himachal. But thanks to his courage and the bravery of his friend Anand Prakash, and his daughter Aradhana, the case of molestation against Rathore remained alive.

A few days ago, nearly two decades after the incident had occurred, a court finally held Rathore guilty. He was sentenced to a mere six months in jail and walked out of the courtroom smirking. Anybody who saw Ruchika’s father on TV will sympathise with the grief and helplessness of a good man who has lost nearly everything. And I can entirely understand why so many people feel the urge to pick up a gun and see that vigilante justice is done at once, given that the system has failed. (Though, of course, this would be wrong, etc. etc.) But it’s not enough to be angry. We need to focus on the lessons of this sad and tragic tale.

First of all, why did Rathore get away with the molestation in 1990 when Ruchika filed a complaint before the then DGP, R.R. Singh? It was because he was close to Haryana politicians. R.R. Singh now says that political pressure ensured that no action was taken. The then Home Secretary also says that he was unable to move against Rathore because of political pressure.

Ruchika’s father says that the politician in question was O.P. Chautala. Of course Chautala denies this and his supporters blame other politicians. But nobody denies that Ruchika died because politicians protected Rathore. What does this say about our system? It has become a knee-jerk reaction for the middle class to blame politicians for everything. But the truth is that politicians can only function if officials help them. The real problem is not that politicians are venal but that members of the educated middle class — IAS and IPS officers — either help them in return for protection and advancement (as Rathore clearly did) or refuse to speak out when injustice is committed. It is all very well for various Haryana officials to now blame politicians. But where were they when Ashu was being tortured? Where were they when Ruchika was driven to suicide?

Secondly, why is the judicial system so slow and infirm? Even if we accept that the police were unwilling to file charges or take action, the case did eventually go to court. Even then, it took till 2009 for Ruchika’s father to achieve any kind of justice — however inadequate — for his daughter. If the legal system had moved faster, Ruchika’s father would not have been forced to go underground and his family would not have been destroyed.

Lawyers will tell you that everybody knows what needs to be done to fix the judicial system: more courts, more judges etc. But no government does it. No electorate demands it. It never becomes an issue. And millions are denied justice in India every day. Thirdly, the reason we are so angry about the Ruchika case is because we can see her father on TV and hear his story. But let’s not forget that each year there are thousands of Ruchikas. India’s policemen, officials and politicians mistreat, torture, molest, rob and rape poor people all the time. Because the victims are not middle-class, we never get to hear of these cases. Look at it logically. If Rathore could destroy a respectable, middle-class family, how do you suppose he would treat a poor, helpless family? And do you really believe that Ruchika was the first girl he molested? How many other cases have gone unreported because the parents did not have the guts or the resources to fight for justice?

So, let’s punish Rathore.

But let’s not stop there. Let’s find the cops who tortured Ashu. They knew what they were doing. They should be, first, thrown out of service and then should face legal proceedings. If cops feel that there is no accountability — which, frankly, there isn’t — they will continue to harass and torture citizens. It is time the present Chief Minister of Haryana took a stand to make up for the sins of his fellow politicians. And as for us, in the middle class and media, I am sure our pressure will yield results. But we need to go beyond our class and our interests.

Millions of Indians face injustice that is even worse.  It is our duty to fight for them, as well.

http://www.hindustantimes.com/Rathore-isn-t-the-only-guilty-man-around/H1-Article1-491010.aspx

When time is on the state’s side

Posted in CORRUPTION, COURTS, CRIME AGAINST WOMEN, HUMAN RIGHTS, JUSTICE, JUVENILE JUSTICE, LIBERTY AND JUSTICE by NNLRJ INDIA on December 26, 2009

Pratixa Bakshi in THE INDIAN EXPRESS DECEMBER 26,2009

Ruchika Girhotra was 15, a young tennis player who was hoping to go to Canada, with aspirations to train for the country. It was SPS Rathore, President, Haryana Lawn Tennis and later DGP, who advised her father that he would arrange special coaching for her, instead of her being sent to Canada for training. On August 12 1990, Ruchika was molested by Rathore in the office of the Lawn Tennis Association under the pretext of conversing with her about the special coaching. Her friend, Aradhana, found Ruchika trying to free herself from the accused.

It was Aradhana’s testimony 19 years later that was critical to the conviction and sentence in this case. Justice Sandhu sentenced the accused “with rigorous imprisonment for six months and fine of Rs. 1000 for the offence u/s 354 of IPC.” Rathore, now 68, was not given the maximum punishment in light of his age and the time taken for the trial though Justice Sandhu finding him guilty says, “a person can be competent and efficient, but…merely on the ground of meritorious service, it can not be presumed that anybody will not commit the act molestation”.

In other words, a young aspiring sportswoman was seen as “available” by the police officer who subsequently forced her to abandon her fight for her dignity, through a process of institutionalised victimisation which poisoned her everyday life. Ruchika was suspended from the tennis court, thrown out of her school and subjected to everyday threats to her security. False cases, including a case of car theft, were levied against her brother, then a minor, as a technique of criminal intimidation. Ruchika subsequently put an end to her suffering by consuming poison on December 28, 1993 and died the next day.

The case history is Kafkaesque. The unforgivable delay in this case took the victim’s life, destroyed her family, and wounded her friends. The defence not only mounted a vicious attack on the fact of friendship

between two girls, constructed a story of enmity which does not withstand even a casual scrutiny, but it also blamed the victim for “provoking” the violence she encountered. The defence argued that “Ruchika was a convent-educated girl, very rich and had influential background. She was modern and friendly with male trainees in HLTA training court. It is too unnatural and improbable that a girl with such a profile and background could entertain any apprehension from the accused.” It is unbelievable that the defence was permitted to remark on the deceased girl’s character.

The law itself remains rooted in colonial formulations about women’s “modesty” which is seen as an attribute of the female sex. Many judgments have also held that all women do not possess of modesty and therefore do not deserve the protection of law. When a police officer pinches his colleague’s bottom or when he molests a young girl in a tennis association, such individual infraction is framed as flirtation, teasing, a minor public relations embarrassment or even defamation against the police officer.

The recommendation to amend the set of colonial laws has not yet been considered by the Parliament. Nor has our language to describe what happened to Ruchika altered.

Ruchika was a victim of sexualised power, compounded by the fact that this power was abused by a police officer. Even the Supreme Court has held that each incident of sexual harassment ‘results in the violation of fundamental rights of ‘gender equality’ and the ‘right to life and liberty’. Although we have a debate on sexual harassment at the workplace, it is eerie that we do not recognise that we do not have any laws which meaningfully redress sexual harassment of women and children in public or private spaces. Ruchika’s constitutional right to life and liberty was violated with impunity. We must shift our focus from “modesty” to “rights” in the first place to begin a meaningful discussion on the ramifications of this case.

Equally, the fact that systemic stalking, intimidation and harassment of the victim, complainant and her family which leads to her suicide does not occur as a ground for abetment of suicide, in the context of custodial sexual harassment, is a commentary on how the law refuses to recognises structural violence against minors.

There are no laws which protect minors against many forms of sexual violence. There is utter apathy when it comes to norms of how child witnesses in sexual harassment and rape cases should be examined. The child witness is always a suspected of being tutored by a parent. She is subjected to the same kinds of questions you would ask an adult woman in court. Lengthy cross-examinations of children are routine with no provisions for even providing water to the witness or a chair to sit on. Let alone any moves to protect child witnesses from backlash violence.

Sixteen years later, our law and society has refused to recognise that Ruchika Girhotra’s death is political, which symbolises the institutionalised processes by which her life was made utterly abject. The Indian state has refused to mourn Ruchika Girhotra. Instead, the Indian state rewarded the then inspector-general in the Haryana police as if to compensate him for Ruchika’s “impudence” for moving the law in the first place.

In Ruchika’s struggle between victimisation and survival, time was used against the victim. It is to the credit of the victim’s friend, Aradhana, who refused to allow the state’s use of time to extinguish a lifetime of resistance. It is this solidarity and friendship that demands that we, as a society, recognise that Ruchika was forced to die.

It is this courageous woman who speaks to the judiciary today to ensure that the sexualised immunity enjoyed by policemen should meet the violence of the law. Perhaps, the political class will remember now to invite public discussion on the sexual assault bill to provide some measure of protection to minors from sexual violence?

Alas, the parliamentarians who claim to lament Ruchika are like mourners without tears, performers without prayers and speakers without meaning.

The writer is assistant professor, Centre for the Study of Law and Governance, Jawaharlal Nehru University.

http://www.indianexpress.com/news/when-time-is-on-the-states-side/559368/0

Rape of the law- State machinery has failed to act

BY KULDIP NAYYAR  IN TRIBUNE

India is not a banana republic. But certain incidents indicate that the country is rapidly forfeiting the right to be counted among the civilized nations. Take the rape of a Russian girl in Goa. Shanta Ram Naik, a member of the Rajya Sabha, the House which sets tone to public debates, wants a different treatment of the rape cases in which women move around with strangers after midnight. The member expressed no regret for the rape because the Russian girl was outside her place past 12 at night.

I thought Goa Chief Minister Digambar Kamat would have taken Naik to task. But nothing like that happened. Instead, the Chief Minister said that a girl who went out with a man at night was asking for something like rape. He did not care for the impression he was creating through his statement inside India and in foreign countries.

Asked about the action his government would take against the member, the Chief Minister said: “Let the Russian government write to me.” Yet his police has been trying to bribe the girl repeatedly. The last offer made to her was Rs. 15 lakh.

Congress Foreign Minister S.M.Krishna had no word of condemnation either. He merely said: “Foreigners should be more careful.” I do not know whether the Minister for Tourism would agree with the Foreign Minister. But how does Goa expect foreigners or, for that matter, Indians to visit the place where one of the ministers of the state says that Goa is the “rape capital of the world.”

The incident prompted Moscow’s Consul General in Mumbai, Alexander Mantytsky, to write to the Indian authorities about the concern he felt on behalf of his nation.

According to one estimate, the Russians make up about 40,000 of the 400,000 international tourists who visit Goa every year.

Sabina Martins, who runs the NGO, Bailancho Saad, has let the cat out of the bag when she says: “No longer does tourism advertisements talk about the natural beauty or the hospitable nature of the state. It is now promoted along the ‘wine, women and song’ line, which is different from the local culture.”

What has shocked me the most is the silence of Sonia Gandhi, the Congress president. She is probably busy calculating what political repercussion the action against the accused, John Fernandes, a heavyweight in the state, would have on the Congress government in Goa.

True, the party rule hangs in balance because the revolt of a few members can make the government fall or bring the opposition to power. But is this what counts ultimately? No morality, only politics!

A television network has asked for three days in a row why no action has been taken against the rapist. Some Parliament members have also posed the same question to the government. But it has preferred to remain silent.

The question is whether the state machinery has any responsibility to pursue the case where a rape has been committed. The accused may be let off or there may be nothing proved against him. But how can the police, looking after the law and order machinery, sit silent? It is apparent that political pressure can let off
the rapists.

This is confirmed by a case in Haryana. After 19 years, a special court of the Central Bureau of Investigation (CBI) has sentenced former state Director General of Police SPS Rathore to six months’ imprisonment and fined Rs 1,000. He was accused of molesting a 14-year-old girl. I

t is a travesty of justice that the police Director General gets only six months in prison. The court is not to blame for a light sentence because the CBI, for obvious reasons, refused to charge the DGP for the real crime. The FIR was filed nine years after the molestation and that too was changed to a memorandum. The pressure used can well be imagined. Still the state government found Rathore so useful, then IG, that he was promoted after four years of his committing the crime.

How powerful was Rathore can be judged from the fact that goons were placed outside the victim’s house to accost and harass her whenever she stepped out. Her house was pelted with stones, smattering the windows.

Three years later she consumed insecticide and died a day later. Her father sold the house in Panchkula, near Chandigarh, and went to Kolkata. Two brothers of the victim faced 11 cooked-up cases which went on for years before they were acquitted.

The mother says in a statement: “We were threatened when we filed a memorandum against Rathore for exemplary punishment.” But Rathore was given a bail even for the light imprisonment. The entire police system in Haryana and the CBI, which played with the investigation have to be cleaned up.

Punjab and Haryana High Court Chief Justice Mukul Mudgal can appoint a special team to reinvestigate the case. The Supreme Court did so in the case of Gujarat where it found the judgment was not correct.

It is time that the government introduces the much-awaited police reforms and overhauls the judicial system. How can a case of molestation against a former DGP go on for 19 years? All those ministers, bureaucrats and police officials who are responsible for the cover-up should be brought to justice.

Let this be a test case to punish even the highest in the country. After knowing the details, the nation feels abhorred and inaction would look like a compromise with pressure and power.

Yet another affront comes from an American Ice cream company, Haagen-Dazs. While opening its branch at Delhi, it puts outside a board to say that only international passport holders can buy ice cream, thereby meaning that no Indian could enter.

This was an outrage for a sovereign country. The company removed the board but it did not tender an apology. The company merely said that the advertisement idea did not work the way it imagined it would. A simple question that the company should answer is: Would it have dared to put up such a board in America, the country which owns the company?

The developed countries consider the Third World a playground to test their arrogant and bizarre ideas. But then the Third World has become prone to humiliation.

Rape of the law
State machinery has failed to act
by Kuldip Nayar

India is not a banana republic. But certain incidents indicate that the country is rapidly forfeiting the right to be counted among the civilized nations. Take the rape of a Russian girl in Goa. Shanta Ram Naik, a member of the Rajya Sabha, the House which sets tone to public debates, wants a different treatment of the rape cases in which women move around with strangers after midnight. The member expressed no regret for the rape because the Russian girl was outside her place past 12 at night.

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