V. VENKATESAN IN THE FRONTLINE
THE Report of the Select Committee on the Prevention of Torture Bill, 2010, presented to the Rajya Sabha on December 6 has been hailed as a significant step forward in undoing the injustice caused by the hasty passage of the Bill without any debate in the Lok Sabha last year.
The Central government introduced the Bill in the Lok Sabha on April 26, 2010, to allow India to ratify the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The Lok Sabha passed it on May 6. The passage of the Bill, with members expressing no concern about its inability to prevent torture, disappointed human rights activists.
However, the Rajya Sabha adopted a motion on August 31 referring the Bill to a Select Committee, comprising 13 of its members, for examination. Chaired by Ashwani Kumar of the Congress, the committee included E.M. Sudarsana Natchiappan of the Congress and Brinda Karat of the Communist Party of India (Marxist). The committee held nine sittings and met the inmates of Tihar Jail, New Delhi, who had suffered torture at the hands of the police. It also heard the views of human rights activists and legal experts before finalising the report. The committee’s recommendations merit sincere consideration by the government, especially in the light of the fact that eminent members of civil society have serious misgivings about the Bill.
The foremost of these is the very objective of the Bill, which was conceived merely as an enabling piece of legislation to ratify CAT. The United Nations General Assembly adopted CAT on December 9, 1975. India signed the Convention on October 14, 1997, when I.K. Gujral was the Prime Minister. To ratify the Convention, it was necessary for a member-country to enact enabling domestic legislation. The short-lived Gujral government could not pave the way for its ratification. And Gujral’s successors, Atal Bihari Vajpayee and Manmohan Singh (during his first term), had no political will to propose such legislation.
When the Manmohan Singh government, in its second term, introduced such a Bill in Parliament, its sudden change of heart surprised observers. A close scrutiny of the Bill, however, revealed that the government was more interested in symbolic conformity with the requirement of ratification rather than substantive compliance with CAT. India is one of the few countries that have not yet ratified CAT, and the inordinate delay in doing so appears to have eroded its moral standing within the international community. However, India’s credibility would have suffered a serious dent if the Rajya Sabha too had passed the Bill as done by the Lok Sabha.
The Bill seeks to provide punishment for torture inflicted by public servants or for torture with the consent or acquiescence of a public servant. As the Indian Penal Code (IPC) neither defines nor deals with torture, Clauses 3 and 4 of the Bill aim to fill this gap. Activists and experts find these provisions very restrictive. According to the Bill, to amount to torture, an act must either cause grievous hurt or must cause mental or physical danger to life, limb or health. Article 1 of CAT, however, defines torture as “severe pain or suffering whether physical or mental”. The Working Group on CAT interpreted the word “severe” to mean “prolonged coercive and abusive conduct which, in itself, is not severe but becomes so over a period of time”.
The Pre-Legislative Briefing Service (PLBS), a group of young legal experts consulted by the Rajya Sabha Select Committee, pointed out in its report that acts that in themselves may not constitute torture become so by reason of their repeated application. The PLBS pointed out that the term “grievous hurt” set the bar too high, without any recourse for persons suffering slightly less but still severe hurt. In particular, it brought to the committee’s attention the following examples of severe hurt for which a police officer would be punishable under the IPC under Section 330 (dealing with ordinary hurt) but not under the torture Bill:
i) Stubbing a cigarette on the body of a person several times;
ii) Whipping a person with various instruments;
iii) Causing a person severe pain that lasts for less than 20 days.
In order to include many instances of torture within its ambit, the PLBS suggested that the words “grievous hurt” and “danger to life, limb or health” be replaced with “severe pain or suffering” in line with CAT. The Select Committee has accepted its suggestion and recommended that the definition of torture be suitably enlarged so as not to exclude acts generally known to be committed on persons in custody which cause severe physical and mental injury, pain, trauma, agony, and so on.
The committee is of the view that the definition of torture should not only be consistent with that of CAT but should also be enlarged to include specific and serious offences against the human body as enumerated in the IPC.
Anomaly in the Bill
The PLBS also revealed another anomaly in the Bill. Clauses 3 and 4 of the Bill indicate that only the person who actually committed the act of torture be punished. This implies that a public servant who abets, consents, acquiesces or conspires in an act of torture cannot be punished under the Bill. It “incentivises and legitimises the outsourcing of torture to private parties and provides the impunity for the public servant who planned or directed the torture,” the PLBS reported. The Select Committee appears to have missed this subtle distinction between a public servant who commits torture and the one who simply abets or attempts it, and the need to punish both.
The Select Committee, however, has recommended that the definition of public servants should be enlarged to include those employed in government companies or any institution or organisation, including educational institutions under the control of the Union and State governments.
The committee has recommended that a minimum punishment of three years be provided to make the law more deterrent. Similarly, it has proposed that a minimum fine of Rs.1 lakh be imposed on the torturer. The Bill does not provide for any minimum punishment for torture, thus leaving the scope for lesser punishments not consistent with the gravity of the offence of torture.
The committee has also made recommendations for suitable provisions in the Bill to rehabilitate victims of torture. It feels the Bill should indicate guidelines to be followed to arrive at a fair and adequate compensation to the victim, and in case of death, to his or her dependants.
The Bill implies that an act of torture is not punishable unless it is committed for the purpose of extracting a confession and on the grounds of religion, race, and so on, of the victim. The PLBS suggested that the conjunctive clause “and” was inappropriate because it had the effect of making a narrow definition of punishable torture. The PLBS suggested that an act of torture committed by a public servant – in his public capacity – must be punishable regardless of the reason for which that act was committed. The Select Committee has not found it necessary to deal with these suggestions.
Clause 5 of the Bill states that no court shall take cognisance of torture unless the complaint is made within six months from the date on which the offence is alleged to have been committed. The PLBS suggested that this clause be deleted, as the limitation period of six months imposed an arbitrary restriction on cognisance of cases relating to torture by courts. The Standing Committee, however, has recommended that a liberal limitation period of two years from the date on which the alleged offence was committed for filing of the complaint would give sufficient time to enable the victim of torture to initiate proceedings against those responsible for torture. The committee has also considered it necessary to vest the discretion with the court to entertain complaints even beyond the period of two years so as to advance the ends of substantive justice.
Clause 6 of the Bill requires prior sanction for the prosecution of a public servant accused of torture. The committee feels that there is a need to retain the provision of prior sanction of a competent authority before proceeding against the public servant concerned so as to insulate honest public servants from false, frivolous, vexatious and malicious prosecution. At the same time, the committee has opined that such a provision should not be used to shield those officials who have, in fact, intentionally tortured or abetted the torture of individuals.
It, therefore, has recommended a provision in the Bill under which if the requested sanction is not granted within a period of three months from the date of application, it would be deemed to have been granted. This, the committee hopes, will help ensure that the right of the victim is not lost owing to procedural delays and he is not made to run from pillar to post to get justice.
The committee has recommended that sanction in blatant cases of torture should be the norm and where sanction to prosecute is declined, the said decision should be supported by reasons, and the decision must also be appealable. The committee also wants the trial of offences under the Bill to be concluded within one year from the date of cognisance of the offence. It has urged Parliament to include in the Bill suitable provisions to protect victims, complainants and witnesses.
Observers wonder whether the government will revise the Bill in the light of the Standing Committee’s significant recommendations.
- ‘Torture Is Forbidden’ In Iran, Says Larijani (newsweek.com)
PRAKASH SINGH & ORS. VS VERSUS U.O.I. & ORS.
Date: 08/11/2010 This Matter was called on for hearing today.
HON’BLE MR. JUSTICE AFTAB ALAM
HON’BLE MR. JUSTICE K.S. RADHAKRISHNAN
O R D E R
As far back as on 22nd September, 2006, this Court in the case of Prakash Singh & Ors. vs. Union of India in Writ Petition (C) No.310 of 1996, since reported in 2006 (8) S.C.C.1 issued, inter alia,six directives to the State Governments in respect of State Security Commission, selection of minimum tenure of DGP, minimum tenure of IG of Police and other officers, separation of investigation, setting up of Police Establishment Board and setting up of Police Complaint Authority.
By Order dated 16th May, 2008, in I.A. Nos.20-38 with I.A. No.3 in Writ Petition (C) No.310 of 1996, in the matter of implementation of the above directions, Thomas Committee was constituted and it was directed to submit it’s Report within three months. The terms and conditions on which the Report was sought was also stipulated in the said Order, which reads as under:
“1) To examine the affidavits filed by the different States and the Union Territories in compliance to the Court’s direction with reference to ground realities.
2) Advise the respondents wherever the implementation is falling short of the Court’s order, after considering the respondents’ stated difficulties in implementation.
3) Bring to the notice of the Court any genuine problems the respondents may have in view of the specific conditions prevailing in a State or Union Territory.
4) Examine the new legislations enacted by different States regarding the police to see whether these are in compliance with the letter and spirit of the Court’s directions.
5) Apprise the Court about unnecessary objections or delays on the part of any respondent so that appropriate follow-up action could be taken against that respondent.
6) Submit a status report on compliance to this Court every six months.
The Committee shall be provided necessary infrastructure and required financial assistance by the Government of India (the Ministry of Home Affairs/Bureau of Police Research and Development (BPRD) to enable it to carry on its functions.The Committee may, if necessary, visit a particular State for discussing any matter relating to implementation with the officers of that State. Home Ministry is directed to deposit Rs.10 lakhs with the Secretary General of Supreme Court towards initial expenses of the Committee.
The Committee will function initially for a period of two years only. This Hon’ble Court may, however, extend its life span, if considered necessary.”
The final Report of the Thomas Committee dated 23rd August, 2010, has now been submitted to this Court and the same has been received by almost all States appearing before us, particularly,States of Karnataka, Maharashtra, Uttar Pradesh and West Bengal. We regret to say that, till today,most of the directions given by this Court in it’s Order dated 22nd September, 2006, have remained noncompliant.
To begin with, the Thomas Committee has given a chart, which is quoted at Page 12 of the compilation given by the learned amicus curiae, which indicates non-compliance, partial compliance,marginal compliance and in the end, to say the least, paper compliance. None of the above States have issued appropriate notification/Government Order on the directions given by this Court in it’s Order dated 22nd September, 2006.
In the circumstances, we hereby issue notice, in the first instance, to the following four States:
[iii] Uttar Pradesh; and
[iv] West Bengal.
We hereby direct the Chief Secretary of each of the above four States to remain present in this Court on the next date of hearing, i.e., 6th December, 2010. The said notice will be show-cause notice which the States will have to reply through the Chief Secretary as to why the six directions given in the Order dated 22nd September, 2006, have not been complied.
We may reiterate that each of the States have appeared through their respective advocates before us. They have stated that they are in receipt of the Report of Thomas Committee. The matter shall stand over to 6th December, 2010, at 2.00 p.m.
FROM THE TRIBUNE, CHANDIGARH
The Supreme Court’s slew of directives notwithstanding, the implementation of police reforms has proved to be an uphill task. The Chief Ministers are reluctant to enforce them as they don’t want to lose their hold over the police. How can the police be insulated from political interference and improve governance? An in-depth study
The problem with policing is too well known to be rehashed. More important is the solution. In democracies, the relationship between the police and the political executive is always close. Both are bound in the common enterprise of preventing and investigating crime, maintaining law and order and ensuring that society has a well provisioned, well functioning essential service that protects life, liberty and property. The key to better policing lies in defining clearly the roles and responsibilities of the political executive (i.e. the bureaucracy and the people’s representatives) and the police and making them know their limits of power.
Those who fear losing their death grip over the police sometimes deliberately like to create the impression that any rein on the unfettered exercise of will over the police will create an entirely independent and out of control police force. Ironically though, today’s dysfunctional police-executive relationship has given us a force with very few limits on its power.
There is no question but that the political executive must always be paramount. But the relationship has to be symbiotic, not parasitic or dependent.
A suggested model for defining this relationship would read: “Responsibilities and independence of State Police Chief” The supervision, direction and control of the police throughout the state shall, be vested in an officer of the rank of Director General of Police (DGP) designated as the state police chief.
A. The DGP shall be responsible to the Minister for
i) carrying out the functions and duties of the police;
ii) the general conduct of the police;
iii) the effective, efficient and economical management of the police;
iv) tendering advice to the Minister;
v) giving effect to any lawful ministerial directions.
B. The DGP shall not be not responsible to, and must act independently of, the Minister regarding:
i) the maintenance of order in relation to any individual or group of individuals; and
ii) the enforcement of the law in relation to any individual or group of individuals; and
iii) the investigation and prosecution of offences; and
iv) decisions about individual police officers.
C. The Minister may give the DGP directions on matters of government policy that relate to
i) prevention of crime;
ii) maintenance of public safety and public order;
iii) delivery of police services; and
iv) general areas of law enforcement.
D. No direction from the Minister to the DGP may have the effect of requiring the non-enforcement of a particular area of law
E. The Minister must not give directions to the DGP in relation to the following:
i) enforcement of the criminal law in particular cases and classes of cases
ii) matters that relate to an individual or group of individuals
iii) decisions on individual members of the police
n If there is dispute between the Minister and the DGP in relation to any direction under this section, the Minister must, as soon as practicable after the dispute arises,
i) provide that direction to the DGP in writing; and
ii) publish a copy in the gazette; and
iii) present a copy to the legislature
True, present Acts are hazy about how the police is to be ‘supervised’ and seemingly do not explicitly condition the political executive’s powers. But underlying police manuals specify exactly how and by whom administrative powers will be exercised. Similarly, there is clear law that prohibits any interference in police investigations from any quarter. But all this is observed in the breach.
Judicious supervision has degenerated into bossism and the power to transfer, appoint, promote or suspend police officers is too often used as punishment and reward to bend the police until today ‘control and supervision’ has become something entirely different from what was originally intended.
Nevertheless, willy-nilly we are in the era of police reforms. After 30-odd years, the National Police Commission’s recommendations have been dusted off. Multiple committees have spent endless hours culling out priorities. Under the chairmanship of Soli Sorabjee, the Ministry of Home Affairs has drawn up a brand new Model Police Bill for the benefit of lawmakers across the country. Civil society has polished it and is begging policy makers to pay attention.
Union Law Minister Veerappa Moily’s Administrative Reforms Commission has added more suggestions to change the police force into a reliable and trusted police service. The ruling party’s manifesto has recognised “the imperative of police reforms” and said “a clear distinction between the political executive and police administration will be made.”
Even the Supreme Court has spoken and laid out a road map for reform. Its directions came nearly five years ago. Since then, every government has avoided compliance. Some have gone through the motions change while going about business as usual on the ground. Others have created stunted institutions designed to defeat intention. Yet others have legislated their way out from under the weight of obedience. And some have simply done nothing at all.
Meanwhile, everyday, in the absence of honest and law abiding policing, the security situation for country and individual is worsening. At the root of rotten policing lies the degree to which raw political power has been able to gain control over it. Weak leaderships have bowed low before illegitimate interference in the everyday running of the force and allowed informal but powerful influences to gain a large footprint in all police work. If policing is ever to improve this has to be rectified. The solutions are there. We need the political will.
The writer is Director, Commonwealth Human Rights Initiative, New Delhi
Cosmetic changes won’t do
By Shankar Sen IN THE TRIBUNE ,
THE demand for meaningful police reforms in India is an old one. Successive governments created many committees and commissions for nearly three decades. In 1979, the National Police Commission (better known as the Dharam Vira Commission) made a number of practical recommendations for police reforms which are relevant today.
In 1996, two former DGPs filed a PIL before the Supreme Court asking the court to direct the states to implement the Dharam Vira Report. But after a decade, the Supreme Court had given clear directives to the Centre and the states to implement the core reforms recommended by the NPC to insulate the police from extraneous pressures and influence. Despite these unambiguous orders, the state governments are dragging feet and betraying unwillingness to lose their stranglehold over the police.
The majority of the states have said that they support the spirit of reforms but objected to many of the directives of the court. Initially, the states, one after another, filed petitions in the Supreme Court asking for more time to implement the directives. On January 11, 2007, the Supreme Court considered the objections and concerns of the states, but said firmly that the process of police reforms must commence immediately. Unfortunately, the process of implementation of police reforms is still not visible in most states.
States like Gujarat, Nagaland, Uttar Pradesh, Karnataka and Andhra Pradesh have questioned the raison d’ etre of State Security Commissions. They have brazenly stated that no unwarranted influence is at all exercised over the state police. They have also expressed the view that setting up a State Security Commission with binding powers will lead to the creation of a parallel body which is not accountable to the people of the states.
Further, a fixed two-year tenure for DGP, irrespective of the superannuation date, will block opportunities for promotion of other senior eligible officers who will feel demoralised. Most states have not also complied with the directives of the Supreme Court regarding the establishment of independent Police Complaints Authority at the state and district levels to look into public complaints against police misconduct. The state governments’ stand is that the establishment of PCA will demoralise the police personnel and adversely affect their working.
The Soli Sorabjee Committee submitted its draft report to the government on October 31, 2006. But no meaningful steps have been taken so far by the Centre to enact a new law for the police in the Union Territories.
Many states have enacted new police Acts. A number of them have submitted in the Supreme Court that they are in the process of framing new police laws. On the surface, they appear encouraging. But a reality check on the ground will reveal that what is being attempted in many states is contrary to the spirit of instructions issued by the Supreme Court.
The new police Acts that have been passed and the Bills that have been readied have diluted the core systemic reforms stipulated by the Supreme Court. Some states have set up State Security Commissions and packed them with yes men and excluded the Leader of the Opposition. To retain political control over the police, they have made some cosmetic changes and not meaningful systemic reforms.
A three-member Monitoring Committee was set up by the Supreme Court with Justice K.T. Thomas, a former Supreme Court Judge, as its chairperson. It is mandated to examine the affidavits filed by the states. It will also examine the new police Acts passed by the states after the Supreme Court judgment of 2006 and find out if the Acts are in keeping with the letter and spirit of the apex court’s directives.
The committee has not yet submitted its final report. Thus, meaningful police reforms in the country are stalled. But the reforms brook no delay. The country needs an apolitical, efficient and revamped police force to take on the forces of disruption and destabilisation. Tomorrow will be too late.
The writer, a former Director-General, National Human Rights Commission, is Senior Fellow, Institute of Social Sciences, New Delhi
Status of Supreme Court’s directives on Police Reforms
FROM THE TRIBUNE
Not a single state has managed to fulfil all the criteria prescribed by the Supreme Court with regard to the State Security Commission (SSCs). Most states have set up SSCs that do not reflect the court’s criteria with regard to the composition, function and powers. States such as Tamil Nadu, Orissa, Madhya Pradesh, Jammu and Kashmir and Andhra Pradesh are in complete non-compliance with this directive.
Arunachal Pradesh, Meghalaya, Mizoram and Nagaland are the only states that have adopted the court’s prescribed criteria with regard to the selection, tenure and removal of the Director-General of Police. A few states have only partially incorporated these criteria whilst several states such as Karnataka, Jharkhand, Haryana, Kerala and Andhra Pradesh are not compliant with this directive.
Andhra Pradesh, Madhya Pradesh and the north-eastern states of Arunachal Pradesh, Meghalaya, Manipur, Mizoram and Nagaland are in full compliance with this directive which provides for a fixed tenure for officers on operational duties. While a few states have partially satisfied the criteria set by the Supreme Court, it is notable that the majority are not in compliance with this directive.
Several states such as Assam, Arunachal Pradesh, Haryana, Himachal Pradesh, Karnataka and Sikkim have complied with the Supreme Court’s directive to separate the law and order police with the investigation police. However, a majority of states have not fully implemented this directive.
Most states have established a Police Establishment Board, but only Arunachal Pradesh and Goa are in full compliance with all the court’s stipulated criteria in this regard. In contrast, Bihar is the only state which has taken no steps towards complying with this directive.
No state government has established Police Complaints Authorities at both district and state level that fully comply with the Supreme Court’s orders. Many states have established Authorities which only partially comply with the court’s directive in terms of the composition, mandate and powers.
Many states — Uttar Pradesh, Tamil Nadu, Punjab, Mizoram, Madhya Pradesh, Karnataka, Jammu and Kashmir and Andhra Pradesh have completely ignored this directive.
IN THE EDITORIAL OF THE HINDU
The politicisation of policing is rampant across Indian States. When the police come under political pressure, they are known to serve as the handmaiden of the ruling party, whether in covering up failures and misdeeds of the administration or in targeting political opponents. In many such instances, courts have intervened in the interest of an impartial probe and ordered investigation by the Central Bureau of Investigation. Therefore the ruling of a Constitution Bench of the Supreme Court that the highest court in the land and the High Courts have the power to order, without the consent of the State government concerned, an investigation by the CBI into cognisable offences committed within its territory comes as no surprise. But importantly, while upholding the constitutional validity of an existing judicial practice, the court entered certain crucial caveats. Calling for great caution on this issue, the Bench asked the courts to “bear in mind certain self-imposed limitations on the exercise of these constitutional powers.” While disagreeing with the contention that the ordering of a CBI probe without the State government’s consent would impinge on the federal structure of the Constitution and violate the doctrine of separation of powers, the Supreme Court ruled that such orders could not be passed as a matter of routine or on the basis of allegations against the local police by a party.
However, the judgment raises several other issues and concerns. For one thing, the CBI too is not insulated from political pressures. As was evident in the Bofors case, the CBI is susceptible to pressures from the central government just as the State police forces are to pressures from the party in power in the State. Preferring one agency at the expense of another is not the solution. Institutional mechanisms must be put in place to protect investigating agencies from the influence of their political masters. It is a sound principle of law that courts should not normally intervene at the stage of investigation; judicial intervention at this stage should come only in the face of overwhelming evidence of a possible miscarriage of justice. This is also because the primary responsibility for maintaining law and order rests with the State government, and ‘police’ is in the State list. Courts have shown a tendency to overreach, to encroach on the powers of the executive. Each encroachment is made in the name of protecting civil liberties and fundamental rights of the citizens. But every time the courts do so without sufficient reason, the foundations of the Constitution are shaken. Wrong use of extraordinary provisions is the surest way of undermining them.
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.
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
TOI Crest, 16 January 2010, 11:33am IST
Those who claim to see ghosts will always fear the dark. Babloo – not his real name – has seen the devil and will remain terrorised of it till his last day. A resident of Indira Nagar in Lucknow, the very sight of the colour khaki sends chills down his battered body. He has been seeing psychiatrists and undergoing therapy ever since he spent a harrowing seven days with the police some years ago. But things like a car battery, electricity cables, a cooking heater and pliers still scare the life out of him. When the police let him off – they wanted Babloo to confess to a murder he never committed – his ear lobes were charred, his palms were so swollen that they looked like pillows, and two of his toes had been sliced open after nails were hammered into them. But there are countless others who don’t have to be tortured to fear the police in India. It’s common for Indians to make way for cops when they are behind you, and walk at a safe distance when they are in front of you. Truant children are often threatened with a call to the policeman, as if they were some evil spirit. There is a dread, and it is all pervasive, all encompassing.
“This is because the police have no fear of punishment and there is total lack of accountability ,” says former IPS officer-turned lawyer Y P Singh. “And they are sure that the senior officers will always bail them out.”
Giving a more nuanced view, political scientist Imtiaz Ahmed says, “The explanation for the kind of police we have lies in the fact that we have a colonial police. Neither the structure nor the orientation of the police has changed. The colonial attitude – in which the only interest was to establish their rule at any cost – still persists. The police responds to the government, not to the people.”
He adds, “The police behaves the way it does partly because the recruitment of personnel comes mostly from the dominant castes in each area. For example, the Jats predominate in the Delhi and Haryana units, especially in the constabulary and above. The feudal attitude is there for all to see. They continue to be oppressive, carrying forward the characteristic in their interaction with the public. And the Indian state has become more khaki… The attitudes of dominance and coercion are reflected in various aspects of the state.”
Vikas Narayan Rai, DGP, Haryana Police Academy, feels the police can improve only if society is empowered. “By ’empowered’ I mean they should have the means to assert their legal right. In our country a person feels totally helpless whether he goes to a police station, a court, or a hospital. They should have rights that can be enforced. We have inherited our police from our colonial masters. The same system persists and now that I am associated with police training I realize what kind of training we are giving. They are being trained to deal with criminals and not with common people though 90 per cent of the time they are dealing with citizens . The mindset has to change and the police has to be sensitized, they have to be conditioned to the values of democracy, to the rights of the common citizen. That change of mindset is difficult to achieve after 200 years of colonial rule. But it is possible and it is being done.”
Former police and security supremo Julio Rebeiro has a solution. “It is very simple ,” he said. “The police force should be free from all political interference. Until this is done the force cannot be improved. The crux of the problem is the interference of the politician in the police department. Leave it to the commissioner of police to take all decisions , including transfers and postings from inspectors to deputy commissioners and above. The political godfathers decide the postings for better known reasons and the officers are not interested in serving society . It is time the government wakes up before the situation becomes worse.”
WITH INPUTS FROM REMA NAGARAJAN, S AHMED ALI, RAHUL TRIPATHI, PEVEZ IQBAL SIDDIQUI
Siddharth Varadarajan in THE HINDU DECEMBER 9 2009
The peremptory deportation of a Nepali student from India and the unlawful detention of a tribal woman shot by the police in Chhattisgarh raise troubling questions about the power of our ‘national security’ apparatus.
The Indian Constitution and various laws framed under it grant the Indian state and its agencies enormous power to regulate the movement of persons, especially when the bogey of national security is raised. These powers include the preventive detention of citizens under one pretext or the other and, under the Foreigners Act, the summary deportation of foreign nationals, including those that have legally entered the country and have not violated the laws of the land in any way. Indian nationals who are unable to prove their citizenship to the satisfaction of the police are also subject to summary deportation, without the automatic right to be heard by a court.
Implicit in the grant of such extraordinary powers in a democracy is the understanding that the exercise of authority will be governed by reason and justice in the broadest possible sense. When these principles are jettisoned, arbitrariness and abuse of power become the norm, exposing, under the brittle veneer of democratic paint, the ugly face of a police state answerable to no one other than itself.
Nitu Singh, a young woman from Nepal, is a final year student at the prestigious Film and Television Institute of India at Pune. On the night of December 5, 2009, the city police landed up at the FTII hostel without any warrant or paperwork, took her into custody, gathered her personal effects and moved her to Mumbai, from where she was deported to Kathmandu the next day.
The only reason cited by the Pune police was that Ms. Singh had indulged in “anti-national activities”. No detail of these alleged activities was provided, no mention was made of which Indian laws she had violated and no attempt was made to substantiate the charges. The Indian Express, which broke the story, quoted Ravindra Sengaonkar, the city’s Deputy Commissioner of Police (Special Branch), as saying: “Nitu Singh was deported to Nepal because she was found to be involved in anti-national activities. It was a high-level secret operation which our team completed successfully in quick time… We are not supposed to share details. The case is high-profile and various investigative agencies are involved.”
Whatever the nature of her “anti-India activities”, one thing is clear: they were not serious enough to warrant the filing of criminal charges. So why was she deported?
Nitu Singh is the wife of Amaresh Singh, a member of Nepal’s Constituent Assembly. He has also served as an interlocutor between the Nepali Congress, which is his own party, the United Communist Party of Nepal (Maoist), and the Government of India, a process in which India’s external intelligence agency, RAW, has been deeply involved.
According to women’s activists in Pune who have taken up her case, Nitu’s deportation was engineered by her husband, from whom she had grown estranged over the past year or so. On his part, Amaresh has denied playing any role in the entire affair.
Of all the issues this deportation involves, the state of the Singh marriage need not detain us. Husbands and wives fight all the time. When global travel is involved, marital disputes can take on very complex dimensions. But what is unusual is the speed with which Nitu’s expulsion from India took place and the “national security” grounds invoked by the authorities. Despite the enormous latitude granted to the police by Section 3 (2) (c) of the Foreigners Act, foreign nationals are usually deported from India (a) if they are illegal migrants, (b) if they have overstayed their visa, (c) if they have finished serving their sentence for any crime they might have been convicted of, or (d) if their presence in the country is deemed by a minister to be prejudicial to public order. In most cases, the process of deportation is so leisurely that some of those targeted even manage to bring their case before a court, or to escape, as the three Pakistanis who relieved themselves of their police escort in Delhi did last week.
In Nitu Singh’s case, however, none of the usual grounds for deportation obtain. That is why those who took the decision to deport her chose “anti-national activities” as the reason. They gambled on the fact that the smokescreen of national security is usually a thick enough deterrent to ward off troublesome questions. While the S.P.S. Rathore case has taught us that no abuse of law or process is beyond the local constabulary, it is hard to imagine the Pune police dreaming up this deportation on their own steam. Indeed, Mr. Sengaonkar gave the game away by speaking of a “high level” operation and the involvement of other agencies. Since the Ministry of Home Affairs under P. Chidambaram has ordered a probe into this matter, one can safely assume that the “agencies” involved are not those that report to the MHA.
In a speech last month, Mr. Chidamabaram drew attention to the fact that several agencies involved in counter-terrorism report not to him but to the Cabinet Secretariat, the Prime Minister’s Office, and the National Security Advisor. Among these are RAW, the Aviation Research Centre and the National Technical Research Organisation. Could one of those agencies have been involved in the deportation? If so, who within the national security establishment decided Nitu Singh was engaging in “anti-national activities” and what evidence do they have to substantiate the charge? Was Amaresh Singh able to influence this process in any way? These are the questions the Home Minister will hopefully ask as he seeks to get to the bottom of a case that makes India look more like a banana republic than a democracy with rule of law.
If the power to expel a foreigner can be exercised so arbitrarily, this is because the power to prevent the movement of citizens within the country is subject to the same degree of caprice and contempt for the rule of law.
A young Adivasi woman named Sambho Sodi who was injured in police firing in Dantewada last year was prevented by the Chhattisgarh police from travelling to Delhi last week for medical treatment to her wounded leg. The grounds for her detention were that the police needed to record her statement about the incident in which she alleges the security forces fired upon unarmed civilians near Gompad village on October 1, 2009. The police, which claimed the Gompad shooting was part of an anti-Naxalite operation, had all the time in the world to record her statement but chose not to do so as long as she was in Dantewada. But the day she needed to travel to Delhi for treatment, they compelled her to get down from the vehicle she was travelling in and took her in for questioning, prompting her colleagues and friends to urgently move the Supreme Court.
On January 7, the Supreme Court ordered the State of Chhatisgarh “not to interfere in any manner whatsoever” with Ms. Sodi coming to Delhi for her medical treatment and to not “create any obstacle in her way”. At the time of going to press, however, activists handling her case said the police had still not cleared her departure for Delhi. Chhattisgarh has become one of India’s most notorious “no rights” zones, where state-supported vigilantes in the name of Salwa Judum and ‘Special Police Officers’ are free to attack those who are critical of the actions of the security forces. As matters stand, the Chhattisgarh government is already in violation of Supreme Court orders on the rehabilitation of Adivasis displaced by the Salwa Judum. How long the state police will prevent Ms. Sodi from travelling to Delhi remains to be seen.
In their own way, Nitu Singh and Shambho Sodi are both victims of a security establishment which operates on the penumbra of legality and whose forays to the dark side frequently remain unseen and unheard. Rare are the moments when we get to shine the light on them, rarer still the times when senior ministers undertake to right a wrong. The media and the judiciary must make the most of these opportunities.
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.
Siddharth Varadarajan IN THE HINDU
Behind every man like S.P.S. Rathore who abuses his authority stand the generals and footsoldiers who help and support him. We need to take them all down.
S.P.S. Rathore, the criminal former top cop of Haryana, may appear alone today but we must never forget that he was able to get away with the sexual molestation of a young child and the illegal harassment of her family for 19 years because he had hundreds of men who supported him in his effort to evade justice.
The fact that these men – fellow police officers, bureaucrats, politicians, lawyers, judges, school administrators – were willing to bend the system to accommodate a man accused of molesting a minor speaks volumes for the moral impoverishment of our establishment and country. Decent societies shun those involved in sexual offences against children. Even criminals jailed for ‘ordinary’ crimes like murder treat those serving time for molesting children as beyond the pale. But in India, men like Rathore have their uses for their masters, so the system circles its wagons and protects them.
The CBI’s appeal may lead to the enhancement of Rathore’s sentence and perhaps even the slapping of abetment to suicide charges, since his young victim killed herself to put an end to the criminal intimidation her family was being subjected to by Rathore and his men. But the systemic rot which the case has exposed will not be remedied unless sustained public pressure is put on Prime Minister Manmohan Singh and Union Home Minister P. Chidambaram, two men who have it in their power to push for simple remedies in the way the Indian law enforcement and justice delivery system works.
First, abolish the need for official, i.e. political sanction to prosecute bureaucrats, policemen and security forces personnel when they are accused of committing crimes. The original intent behind this built-in stay-out-of-jail card was to protect state functionaries from acts done in the course of discharging their duties in good faith. Somewhere along the line, this has come to mean protecting our custodians of law and order when they murder innocent civilians (eg. the infamous Panchalthan case in Kashmir where the trial of army men indicted by the CBI for murdering five villagers in 2000 still cannot take place because the Central government will not grant permission), or assault or molest women and children. No civilised, democratic society grants such impunity. It is disgusting to see former officials and bureaucrats from Haryana saying how they had wanted Rathore prosecuted but were prevented from doing so because of pressure. Such officials should either be made formally to testify in a criminal case against the politicians who so pressured them or they should themselves be hauled up for perverting the course of justice.
Second, stop talking about how making the police and army answerable to the law will somehow demoralise their morale. Does anybody care about the morale of ordinary citizens any more? Or the morale of upright police and army officers, who do not think it is right for their colleagues to be able to get away with criminal acts?
Third, bring an end to the cosy relationship between the police and politicians. Rathore was protected by four chief ministers of Haryana. He served them and they served him by ensuring his unfettered rise. It is absurd that the Indian Police is still governed by a colonial-era Act dating back to 1861. A number of commissions have made recommendations for reforming the police over the years; but no government or political party wants to give up its ability to use and misuse the police for their own benefit.
Fourth, ensure that police officers who abuse their authority and engage in mala fide prosecutions are dismissed from service and sentenced to jail for a long period of time. Mr. Chidambaram should use the considerable resources at his command to find out who were the policemen involved in filing 11 bogus cases against the teenaged brother of the young girl Rathore molested. He should then make sure criminal proceedings are initiated against all of them. The message must go out to every policeman in the country: If you abuse the law at the behest of a superior, you will suffer legal consequences.
Fifth, ensure that criminal charges against law enforcement personnel are fast-tracked as a matter of routine so that a powerful defendant is not able to use his position to delay proceedings the way Rathore did for years on end. The destruction or disappearance of material evidence in such cases must be treated as a grave offence with strict criminal liability imposed on the individual responsible for breaking the chain of custody.
Sixth, empower the National Human Rights Commission with teeth so that police departments and state governments cannot brush aside their orders as happened in the Rathore case. This would also require appointing to the NHRC women and men who have a proven record of defending human rights in their professional life, something that is done today only in the breach. The attitude of the Manmohan Singh government to this commission and others like the National Commission for Women (NCW) and National Commission for Minorities is shocking. Vacancies are not filled for months on end.
Seventh, ensure the early enactment of pending legislation broadening the ambit of sexual crimes, including sexual crimes against children. Between rape, defined as forced penetrative sex, and the vague, Victorian-era crime of ‘outraging the modesty of a woman’, the Indian Penal Code recognises no other form of sexual violence. As a result, all forms of sexual molestation and assault short of rape attract fairly lenient punishment, of the kind Rathore got. In his case, the judge did not even hand down the maximum sentence, citing concerns for the criminal’s age. Sadly, he did not take into account the age of the victim and neither does the IPC, which fails to distinguish between ‘outraging the modesty’ of an adult woman and a young child.
A draft law changing these provisions and bringing India into line with the rest of the modern world has been pending with the NCW and Law Ministry for years. Perhaps the government may now be shamed into pushing it through Parliament at the earliest.
Eighth, take steps to introduce a system of protection of witnesses and complainants. The fate that the family of Rathore’s young victim had to endure is testament to the fact that people who seek justice in India do so at their own peril.
Ninth, ensure that robust interrogation techniques like narco-analysis, which are routinely used against other alleged criminals, are also employed against police officers accused of crimes.
Tenth, the media and the higher judiciary must also turn the light inward and ask themselves whether they were also derelict in their duty. The Rathore case did not attract the kind of constant media attention it deserved, nor do other cases involving serving police officers accused of crimes against women, workers, peasants and minorities. As for the upper courts, their record is too patchy to inspire confidence. It was, after all, the high court which chose to disregard the CBI’s request for including abetment to suicide charges.