Archive for the ‘Rape’ Category

Schoolteacher Soni Sori is a Lok Sabha candidate from Bastar in Chhattisgarh. The Aam Aadmi Party member’s campaign will be different from that of many other aspirants: she will tell her own story.

Sori has just returned to her ancestral home in Palnar village in Dantewada district after three years in jail. Accused of being a Maoist accomplice and attacking a Congress leader in 2011, she has now been acquitted in five out of seven cases registered against her and granted bail in the remaining ones.

But she has filed a case too — alleging that a senior police officer oversaw her assault while she was in police custody in 2011. The Supreme Court is yet to decide on it.

In her complaint, Sori said the police officer verbally abused her and directed policemen to torture her.

“In a conflict zone like Chhattisgarh, there is no one to hear our plea,” she says.

With armed unrest rampant in parts of the country — from Kashmir to Chhattisgarh and Manipur — human rights activists are raising the issue of sexual violence by security forces against citizens. There are also numerous cases of sexual assault by armed men who have the government’s backing. In Chhattisgarh for instance, members of Salwa Judum, a civil militia group formed in 2005, face 99 charges of rape.

Tribal activists such as Sori often face the brunt of such attacks. In the Jadingi village of Odisha’s Gajapati district, Arati Majhi, 21, was marked as a Naxalite and allegedly raped by the police in 2010.

Not surprisingly, the activists have been urging India to sign a Declaration of Commitment to end Sexual Violence in Conflict. In September 2013, 122 nations endorsed the declaration that was tabled by the UK in the 68th UN General Assembly.

The declaration says that sexual violence in conflict areas must not be viewed as a lesser crime. It also calls for comprehensive, improved and timely medical and psychosocial care for survivors and funding for sexual violence prevention.

“Most victims never see justice for what they have endured nor receive the necessary assistance and support,” it says.

Former cop K.P.S. Gill, who fought terrorism in Punjab, agrees that sexual violence against women and children is common in every conflict zone. “India too has seen it for years. Our government authorities do make investigations about such violence but no comprehensive plan has been worked out to tackle it,” says Gill, president, Institute for Conflict Management, Delhi, a non-profit outfit which analyses internal security in South Asia.

Some experts fear that India will not back the declaration. The government, they believe, shies away from backing such a document as it would put the State under the international scanner, especially in places such as Kashmir where the problem goes beyond its borders.

“Even after alleging that the violence in Kashmir is instigated by neighbouring Pakistan, India doesn’t recognise Kashmir as an international armed conflict because that would mean allowing international investigations into the violence,” says Khurram Parvez, programme co-ordinator, Jammu and Kashmir Coalition of Civil Society.

“Endorsing it would mean India is open to international scrutiny, and it would never be acceptable to the government,” echoes Colin Gonsalves of Human Rights Law Network, a Delhi-based lawyers’ collective that fought Sori’s case in the Supreme Court.

But as more and more cases get exposed, the demand for steps to protect women is also on the rise. “Majhi and Sori belong to that unarmed population which is caught in the crossfire of Maoists and State forces… Such a declaration is an instrument for the people to take their fight forward,” advocate Shalini Gera, who fought Sori’s case at the Dantewada court, argues.

But far from supporting the declaration, the activists point out that the government has laws such as the Armed Forces (Special Powers) Act which give immunity to security forces, even when they commit sexual violence.

The human rights activists stress that steps have to be taken urgently, arguing that sexual violence against women is an old and continuing problem.

In 1991, security forces allegedly raped over 100 women over one night in Kunan-Poshpora in J&K’s Kupwara district. In 1992, soldiers in Shopian in Pulwama district were accused of gang raping at least six women. In Manipur, Thangjam Manorama Devi, 34, was allegedly raped by soldiers of Assam Rifles, a paramilitary force, in 2004.

“During conflict, women are particularly vulnerable to sexual attack by both State and non-State actors,” Human Rights Watch spokesperson Meenakshi Ganguly says.

Not everybody agrees that endorsing such a document is the answer to the problem. Supreme Court advocate K.T.S. Tulsi believes that it undermines India’s democratic process. “Endorsing it could subject us to trial in international tribunals, which is not right for our democracy,” he argues.

Tulsi also believes that India has enough safeguards to tackle such issues. “Our courts have taken suo motu cognisance of many such crimes in conflict areas. Our Constitution has the provision of giving fair trials to everyone,” he says.

But the activists argue that such declarations lead to the forming of effective domestic laws.

“International laws always help in the formation of domestic laws,” People’s Union for Civil Liberties general-secretary Kavita Srivastava maintains. “After India ratified the Convention on the Elimination of All Forms of Discrimination against Women in 1993, we got the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.”

But there is a feeling that unless the government wants change, joining such global efforts will not yield results. “India signed the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1997 but it has not ratified it. The Prevention of Torture Bill that is related to the convention too is pending before Parliament,” Parvez says. “India signed the International Convention for the Protection of All Persons from Enforced Disappearance in 2007 but it has not ratified it. Such half-hearted initiatives serve no purpose,” he adds.

Sori, for one, will be happy if the declaration leads to action. Because, she stresses, it’s not just her case that needs to be redressed. During her time in jail, she met many other women who had been sexually tortured in jail or custody. “It’s the fight of several others like me,” she adds.

Delhi law minister Somnath Bharti could be sent to jail for a term of one year on the charges of house trespassing. But this midnight raid certainly points out the urgent need to tone up the Immoral Traffic Prevention Act, even if we believe that those women were into sex trade.

SEARCH CLAUSE: Protestors demand the arrest of Somnath Bharti

The recent midnight raid at the house of a few African women in Delhi’s Khirki extension area by state law minister Somnath Bharti has caused widespread outrage. Bharti alleged there was a thriving prostitution and drug racket in that house and insisted on a raid without a search warrant. While the illegal nature of the minister’s act is beyond doubt — he could be imprisoned for a year for house trespassing — legal experts point out that the incident is also a violation of the Immoral Traffic Prevention Act (ITPA), 1986.

“Even though it is not yet proven if the women were prostitutes, the raid clearly brought out the prevailing mindset that prostitutes may be harassed at will because they are considered evil for society. It is shocking that even the law minister didn’t know that what he was doing was a violation of the existing prostitution law,” says Supreme Court advocate K.T.S. Tulsi.

The ITPA does not criminalise the practice of sex trade as long as it is done in private. Soliciting clients in public is considered illegal. The point, however, is that these women were not caught doing that.

“There was no evidence to suggest that any of these African women who were dragged out of their house that night was soliciting clients in public,” senior advocate Pinki Anand says.

Experts also point out that the ITPA does not allow the police to conduct a search without a warrant, something that Bharti had exhorted them to do that night.

A search without a warrant is allowed under Section 15 of the ITPA only if the special police officer or the trafficking police officer has reasonable grounds to believe that an offence punishable under the act has been or is being committed. But in this case, the cops didn’t have an iota of information about what was going on there. “The cops at the local police station didn’t even know what they were called for! How could they just raid a house like that,” a senior Delhi police official asks.

But even if the police were aware that unlawful activities were taking place in the house, a search without a warrant would have been legal only if two women police officers had accompanied them in the search, say experts.

“In the absence of women cops, the interrogation of the residents of the house should have been done only in the presence of a lady member of a recognised welfare institution. In this case, none of these things was done,” says Priti Patkar of the NGO Prerana in Mumbai that works for the rights of sex workers and the prevention of human trafficking.

What was done that night was nothing short of unbelievable. The women — one Nigerian and two Ugandan — have stated in their first information report (FIR) that Bharti and his men barged into their house at 3am. They added that they were assaulted by the crowd and were subjected to a cavity search during their medical examination at the All India Institute of Medical Sciences (AIIMS), which was a humiliating experience. They have also alleged that the minister and his people had asked them to give urine samples in public.

“Bharti could be arrested without a warrant under Section 41 of the Code of Criminal Procedure because a reasonable complaint has been made against him by the women,” says Tulsi. “He could also be imprisoned for a term of one year on the charge of house trespassing under Section 447 of the Indian Penal Code,” he adds.

Of course, harassment of prostitutes is nothing new in our country. Taking note of it, the Supreme Court in 2011 said that sex workers had the right to live with dignity. In their order in 2011, Justices Markandey Katju and Gyan Sudha Misra had said that sex workers were also “human beings” and nobody had the right to assault them and referred to several classics to underline the fact that a person did not become a prostitute by choice.

Later, a bench comprising Justice Altamas Kabir and Justice Misra said the court had from the beginning lay special emphasis on the rehabilitation of sex workers. Subsequently, a committee was constituted by a Supreme Court order to look into the prevention of trafficking, the rehabilitation of sex workers who wished to leave sex work, and the creation of conditions conducive for them to live with dignity in accordance with the provisions of Article 21 of the Constitution.

“Creating a conducive environment for sex workers to let them live a life with dignity is the least that we can do,” Patkar stresses.

Indeed, after the Criminal Law (Amendment) Act, 2013, which keeps sex workers out of the purview of punishment, there is now a demand for doing away with Section 8 of the ITPA that punishes sex workers for soliciting in public. “Section 370 of the amended act supersedes the ITPA. It is based on the UN protocol to prevent, suppress and punish trafficking in persons, especially women and children. It decriminalises the victims. So we want the ITPA to be made defunct,” says Ruchira Gupta, who runs the NGO, Apne Aap Women Worldwide.

That demand is bound to gain momentum. For, examples of police harassment of prostitutes abound. In fact, sex workers often get picked up by the police on the charges of committing nuisance.

Patkar points to the regular harassment of prostitutes in Mumbai. “Since lodging an FIR under the ITPA is cumbersome, sex workers in Mumbai get picked up under Section 110 of the Bombay Police Act for behaving indecently in public. We need to change this attitude towards sex workers.”

Others say that the answer lies in the legalisation of prostitution. “These outdated laws concerning prostitution are the biggest problem in society. Prostitution should be legalised to save a large section of women from being exploited and harassed,” Tulsi says.

Until that happens — or at least until the IPTA decriminalises sex work — men like Somnath Bharti may be counted upon to charge any woman who does not conform to their personal ideas of morality with prostitution — and heap harassment upon her.

Let them live with dignity

Though the Supreme Court had issued guidelines to deal with sexual harassment in the workplace 16 years ago, it did not implement them in its own precincts until last week.

Let’s hear it for Bhanwari Devi. Not many would remember the village-level social worker of Rajasthan. Over 20 years ago, she sought to stop the marriage of an infant. The village strongmen resented the move, and she was raped by a group of men in 2002 in front of her husband when they were working in the fields. Bhanwari Devi dragged the men to court — and it was this case, fought under a women’s group called Vishaka, which led to the formulation of guidelines for dealing with sexual harassment.

Last week, 16 years after the Supreme Court’s landmark Vishaka judgment, the apex court announced the setting up of a 10-member committee headed by Justice Ranjana Prakash Desai to deal with complaints of sexual harassment within its precincts. The move may be late, but is still an important step for gender justice in the legal world.

That courts and chambers are not safe for women became apparent a few weeks ago when a young woman — a former student of the West Bengal National University of Juridical Sciences (NUJS) — blogged that she had been sexually harassed by a retired Supreme Court judge when she was interning in his office last year. Subsequently, a three-member committee was formed to look into her charges, but the graduate is clearly not happy. She said in an interview earlier this week that she felt “humiliated” and had to constantly justify that she was not lying. Last week, Justice A.K. Ganguly was named as the person who had allegedly harassed the intern.

The case certainly underlines the need for reform in legal circles. “There is a dominant culture of sexism in the profession, and about certain peculiarities in its structure that make speaking out very difficult,” says Mihira Sood, a graduate from Hyderabad’s Nalsar University of Law. Sood, who is now studying in Columbia, had recently blogged that she had also been harassed by a lawyer. “It is a conservative profession, where people are inherently reluctant to rock the boat,” she says.

The NUJS alumna wrote in her blog that she had heard of three other cases [of sexual harassment]. “And I know of at least four other girls who’ve faced harassment from other judges…” Her claim was corroborated when another law student from NUJS wrote on Facebook that she too had been at the receiving end of “unsolicited sexual advance more than once” by the same judge.

Senior Supreme Court lawyer Vrinda Grover stresses that it’s not just lawyers who are harassed, but interns, litigants and clerks as well.

But among the most vulnerable are young women lawyers who practise in courts. “Many have quit their jobs because of this, or moved away from litigation to corporate counsel jobs in large firms where there is more regulation and accountability,” Sood says in an email interview to The Telegraph. “Many women I know who want to litigate are discouraged by their parents from doing so for this reason. Very often the parents are themselves part of the profession so they have seen it for themselves.”

Everybody in legal circles has an incident to relate on sexual harassment. In March this year, a woman advocate was secretly filmed while she was in a toilet in the old lawyers’ chamber building inside the Delhi High Court premises. And a lawyer cites the case of a 27-year-old woman lawyer who was stalked by her male colleague. He sent her obscene text messages and once even dropped in at her house.

In the corridors of courts, tales of harassment by lawyers and judges of juniors are whispered — but seldom aired.

“There is a strong network which is very hierarchical. Juniors and interns have absolutely no voice. Seniors tend to be very powerful, connected not just with other lawyers but also with judges and politicians, which makes it more intimidating to speak out,” Sood stresses.

Legal insiders point out that the profession — unlike say fields such as medicine and engineering — needs individual mentoring. A junior often has to intern with a senior. “Assisting a judge or a senior advocate is always good for the career of budding lawyers because the same judge or advocate can recommend them to others,” says the former dean of Delhi University’s law faculty, Rajiv Khanna.

Justice A.K. Ganguly

Often, in such circumstances, it is difficult for a young lawyer to speak out because her career is at stake. “How many girls can afford to take that risk in a competitive world like this,” Khanna asks.

A few changes are taking place now — mainly because scores of young graduates from prestigious new law schools are entering the field. They are articulate, aware and assertive, and not willing to take harassment without a fight. “She (the NUJS alumna) has shown immense courage to talk about the incident,” NUJS registrar Surojit C. Mukhopadhyay says.

Mumbai-based advocate Anand Grover, too, points out that women lawyers are putting up a fight. “It is not easy for women to stand out bravely in this male-chauvinistic profession but they are doing so,” he says.

It is expected that the new 10-member SC committee will work towards battling sexual harassment. The Gender Sensitisation and Internal Complaints Committee (GSICC) will hear complaints against all kinds of sexual harassment. A complaint has to be inquired into and the inquiry report acted upon by GSICC within 45 days of completion of inquiry. If found guilty, an advocate would be barred from entering the Supreme Court’s premises for a period that can extend up to a year and face other forms of punishment.

“These cases are so common that only a strong mechanism like this can help address the issue,” says advocate Binu Tamta, who filed the petition to implement the Vishaka judgment in the judiciary.

Meanwhile, law schools are doing their bit too. “We plan to give a written advisory to our students on guidelines to be followed when they go out for internships,” Mukhopadhyay says. “We also plan to set up a panel of faculty members who can be contacted anytime by students if anything unpleasant happens to them during the internship. It will be our job to help them.”

Days after a high-level committee submitted a report on laws on sexual violence, the government framed an ordinance recommending death for heinous sex crimes. But the head of the committee, former Chief Justice J.S. Verma, tells me that worldwide studies have shown that capital punishment doesn’t curb rape

The ground floor of this white two-storey house close to the Golf Course in Noida, on the outskirts of Delhi, has become the media’s favourite hunting ground. I have an appointment, but have to wait outside till the clock strikes five — for only then will I be allowed inside. In five minutes, I am face-to-face with the man who’s the talk of the town.

“I am sorry — I slept for a while,” says Justice Jagdish Sharan Verma, the former Chief Justice of the Supreme Court of India. He is late by five minutes, and is humbly apologising for it. “This is the third interview that I am giving today,” he adds, as he settles down on a brown sofa in his living room.

Justice Verma has just presented a 630-page report titled “Amendments to Criminal Law” for reforming the criminal justice system on sexual offences. In the aftermath of the December 16 gang rape of a young woman in a moving bus in Delhi and the ensuing national outcry, the government set up a committee headed by him, with advocate Gopal Subramaniam and Justice Leila Seth, to look into the issue of violence against women. And within a month, the committee was ready with its report, which it presented on January 23.

The report has won accolades across the country. Earlier this week, Prime Minister Manmohan Singh also wrote a letter to Verma, assuring him that his government would be “prompt in pursuing the recommendations of the Committee.”

But when Verma had wanted to present the report to Singh, he was told he couldn’t do so. “We were informed that the home minister would like to receive the report in his office. But I refused to do so because in my capacity as a former Chief Justice of the Supreme Court I would deal only with the Prime Minister,” Verma says.

Later, a joint secretary in the home ministry was sent to Vigyan Bhawan to collect the report on the day of its release. Though security comes under the purview of the home ministry, minister Sushil Kumar Shinde did not contact the committee. Neither the Delhi police commissioner, Neeraj Kumar, who reports to Shinde, nor any of the state directors general of police, appeared before the committee during its public hearings.

“It clearly reflects their apathy,” Verma says.

He did get a list of suggestions from the Congress — but at midnight when an official sent by AICC general secretary Janardan Dwivedi knocked at his door. Later, of course, Congress president Sonia Gandhi apologised to him for this.

His report — which looks deeply into the law — has been commended for its thorough approach. His team of 15 young lawyers, academics and students worked tirelessly for a month to prepare the report. “The night before the day of its release, none of them slept,” he says. The committee received around 80,000 mails from various parts of the country, and from different walks of life and strata, suggesting effective police mechanisms, tougher laws and implementation of punishment for rapists.

Some were for the death penalty for rape — which the committee turned down, suggesting instead imprisonment for 20 years for rape and murder, and lifelong imprisonment for gang rape and murder. “Women’s groups were unanimously against the death penalty,” says Verma, whose panel also disapproved of chemical castration of rapists, calling it a “violation of human rights.”

The recent Ordinance on Criminal Laws, 2013 — approved by the Cabinet on Friday — suggested capital punishment in cases of aggravated sex crimes leading to death or a persistent vegetative state. But Verma is not among those who support capital punishment. “Studies worldwide have shown that the death penalty doesn’t decrease the number of rape cases,” he says.

The committee did not succumb to public pressure demanding lowering the age of juvenile perpetrators from 18. The demand had been gathering ground because the most brutal of the December 16 rapists was allegedly a juvenile. “We cannot change the law because of one incident,” he clarifies. “Also, even if the law is changed now, it will not be applicable in this juvenile’s case because he will be tried under the law that existed on the day the crime was committed.”

But Verma says that while he was overwhelmed by the huge public response to the December 16 incident, he was equally puzzled by the fact that these very people who were so agitated seldom acted to help the public in times of crisis. Few, for instance, came forward when the young woman and her companion were lying stripped and bleeding after they were thrown out of the bus. “They were lying on the road for 20 minutes. Many cars and autorickshaws passed by but nobody offered help. I hope people who came up with various suggestions on reforms would also be sensitive and help out others in crisis,” says Verma, who peppers his sentences with the Hindi wordsamjha — meaning, did you get it?

Dressed in a dark brown coat, a black sweater and brown trousers, Verma is 80, but looks younger and is certainly more energetic than most others of his age. He turned 80 on January 18, but there were no special celebrations for the big day as he was busy finalising the report. “I cut a cake which Gopal Subramaniam’s wife had ordered for me. It was the only five-minute break that we took from our work,” he says with a smile.

The work was all done with the help of Subramaniam’s office resources. All that the government did was provide them with a car which used to pick him and Justice Seth from their Noida homes and drop them at Subramaniam’s office in Jor Bagh. Earlier the committee sat in the government-run Vigyan Bhawan, but soon the members realised that it was better to work from Subramaniam’s office, since they were relying heavily on his staff and resources.

The report has raised eyebrows in some sections. The Army, for instance, hasn’t taken kindly to its recommendation of reviewing the Armed Forces Special Powers Act (AFSPA), which gives sweeping powers to the Army, including the right to shoot at sight.

Ironically, Verma headed a nine-member bench in 1997 that upheld the constitutional validity of this very act.

“If it is coming from me — I who once upheld its validity — it is because there are more and more complaints of increasing misuse of the act,” he explains.

The report also said that Army personnel committing a rape should be tried under the ordinary law of criminal justice. So far, the home ministry, in consultation with the defence ministry, has not accepted this recommendation of the committee. “I don’t think any part of the official duty of Army personnel allows them to commit sexual offences,” says the former chairman of the National Human Rights Commission. “It explains the mindset of the people who are against it,” he says, referring to the criticism that the section on the AFSPA has evoked.

But Verma also admits that not all is well with the legal community either. Gender insensitivity is rife in judicial circles too. In fact, the day Verma presented the report, an Uttar Pradesh judge was accused of molesting a teenager.

Curiously, Verma’s 1997 judgment dealing with sexual harassment of women at the workplace was never implemented in the offices of the judiciary.

He is also “embarrassed” about corruption in the judiciary. Instances of judges taking bribes from petitioners for pronouncing judgments in their favour make him hang his head in shame, he says. “Every time these incidents happen, I feel demeaned because even one corrupt judge is enough for the judiciary to lose its credibility,” says the retired judge who lives in a rented two-bedroom house.

The son of a railway officer, Verma explains that the law was never his first choice of career. Born in Satna in Madhya Pradesh, he earned a BSc degree and then went on to do his law degree from Allahabad University. “I wanted to join the Army but my mother objected to it. My second choice was the civil services, but my brother objected to that,” he says. He finally became a lawyer, which was his father’s choice, he adds. And Verma would have done his father proud. Widely seen as a man of great integrity, he has pronounced many landmark judgments — including the Nathdwara Temple case in 1989 on Dalits being allowed into the Rajasthan temple.

But his observations on the Mumbai High Court’s decision on an election petition stirred up a furore. While hearing this appeal in 1995, Verma interpreted “Hindutva” and “Hinduism” as “synonyms of Indianisation”. Many saw it as a validation of the resurgence of Hindutva in the country.

Justice Verma holds that the judgment was “misconstrued and misused” by many and quoted out of context. “But I am not responsible for the mental capacity of everyone else,” he says tersely. “Politics and religion are a deadly mix. Nobody admits it but everyone practises it here.”

As we reach the last leg of our one-hour long conversation, his cellphone rings. I have been told that he gets annoyed by calls on his cellphone. But his landline doesn’t stop ringing either. “My wife, Pushpa, gets irritated by these calls. And I ask her to imagine my plight,” he says.

Verma is now ready to call it a day. He wants leisure time — he’d like to read his favourite author, Amartya Sen, and spend time with his granddaughter, Preetika, who is on a vacation from the UK and was part of the team that worked for the committee.

Clearly, Verma has done his bit. Now it’s the people’s turn.

 Published in The Telegraph, February 3, 2013

Fast track courts are being hailed as they promise to deliver swift justice. But the pressure to perform fast may also lead to a miscarriage of justice.

The nationwide outrage over the gang rape and murder of a 23-year-old woman in Delhi has led to a call for speedy trial of grievous criminal cases. Responding to the public outcry, the government recently announced that it would set up 1,800 fast track courts to deal with heinous crimes, especially those committed against women.

But the question being asked is how effective these courts are. Some believe that for a country plagued by a huge shortage of judges and lack of adequate judicial infrastructure, fast track courts will not necessarily translate into speedy justice.

Fast track courts are presided over by the judges of sessions courts (district level courts that deal with criminal cases). The judges are taken out of a general pool of judges heading regular sessions courts, thus adding to the backlog of cases that are still to be resolved.

“In India, there are 11 judges per million people as against the ideal ratio of 60 judges. The government should first appoint more judges before setting up fast track courts,” argues Supreme Court advocate Rebecca Mammen John.

In the past one month, six regular sessions courts in Delhi have been converted to fast track courts to hear rape cases, including the December 16 incident of gang rape and murder. These courts have disposed of 24 cases of sexual assault on women in past three weeks. But in the process of giving priority to a particular kind of crime, other cases are being pushed to the sidelines, lawyers complain.

“For example, three terrorist-related cases were to be heard in a sessions court at Tis Hazari on January 17. But on the date of the hearing, we were told that this particular court is now a fast track one and all its previous cases have been transferred to another sessions court. The hearing has now been pushed to February because the other court complains its hands are already full with older cases,” says Delhi-based lawyer N.D. Pancholi.

The concept of fast track courts to speed up the judiciary system gathered ground in 1999. Around 1,743 courts were set up to take up sessions cases pending for two years or more and the cases of undertrials on priority. In a span of 10 years, fast track courts disposed of around 28 lakh cases out of the 35 lakh cases that were transferred to them.

Some experts feel that only fast track courts can lead to speedy justice. “People have lost faith in the judiciary system because of long delays in trials. Fast track courts give people the hope that there is light on the other side of the tunnel,” says former Justice Patri Basanna Gouda of Bangalore, who was one of the members of a committee that set up fast track courts in Karnataka in 2000.

In West Bengal, 88 fast track courts were set up recently to hear cases of crimes against women. “Matters that can be tried taking prima facie evidence should be heard in fast track courts to reduce the pendency of litigation,” Calcutta-based advocate Chitra Bhanu Gupta says.

But others argue that giving some crimes priority over others is a violation of a citizen’s right to justice. “By fast tracking some cases and ignoring others, the judiciary sends out a wrong message to the public that some cases are more important than others,” John holds.

A fast track court doesn’t always deliver speedy justice either. For example, a 1997 case of gang rape of a 26-year-old woman by seven men at a hostel in Rajasthan University was heard in a fast track court but the verdict of 10 years of rigorous imprisonment for all the accused was delivered only in October last year.

Lawyers believe that adjournments in fast track courts should be monitored by the higher courts. “The high court of each state should monitor the functioning of the sessions courts. Judges of the fast track courts should be hauled up for giving multiple adjournments,” maintains N. Santosh Hegde, former Supreme Court justice and former Lokayukta, Karnataka.

There are other problems with fast track justice too. Sometimes, cases are disposed of so fast that they can lead to miscarriage of justice. Experts worry that there’s pressure on fast track courts to deliver justice at the earliest. Earlier this month, a 10-day trial led to a Delhi fast track court awarding the death penalty to a 60-year-old farmhouse guard for raping and killing a three-year-old girl two years ago.

Lawyers object to such hurried trials. “The court should give enough time to both the prosecution and the defence to present witnesses during a preliminary hearing and also for cross-examining each other’s witnesses,” John stresses.

Indeed, there was criticism of a fast track court which was hearing the Best Bakery Case of the 2002 Gujarat riots. The National Human Rights Commission (NHRC) submitted a special leave petition in the Supreme Court against the verdict of the fast track court, which acquitted all the 21 accused in the case relating to the murder of 14 Muslims. It said the judge had made no effort to ascertain why witnesses had turned hostile. The NHRC also raised strong objections to why there was no effective cross examination of witnesses who contradicted their earlier written propositions.

In Mumbai, too, questions are often raised about the fast track courts. In 2005, around 15 such courts were set up for speedy justice in rape, murder and dacoity cases. “But in more than 50 per cent of cases, the high court overturned the conviction by the fast track courts. Cases tried by fast track courts are usually cases of hurried and buried justice,” Mumbai-based advocate Yug Chaudhry states.

Some experts also question the sustainability of these fast track courts. Initially, the fast track courts were partially funded by the Centre but in 2011, the funding of all fast track courts stopped. More than 70 per cent of the fast track courts across the country were shut down as the states couldn’t afford to run them. “I doubt the seriousness of the government on fast track courts as these announcements were made only to lessen public anger,” holds Colin Gonsalves, founder, Human Rights Law Network.

Swift judgments in fast track courts do not necessarily mean succour for the victim either. Often, cases get stuck in a high court and then the Supreme Court when the defence teams file an appeal.

Of course, there is also the belief that unless courts speed up justice, the huge backlog of cases will only get bigger. Some top retired judges feel that the entire judiciary system should be put on a faster track to ensure certainty of punishment. “We have to create more courts and appoint more qualified judges to speed up the justice delivery system. Creating a few fast track courts will not serve the purpose,” former Chief Justice of the Supreme Court, J.S. Verma, stresses.

The government, however, is confident that the legal infrastructure will soon be improved. “I have written to the Prime Minister asking for a good sum of money for building more court rooms and for appointing more judges,” Union law minister Ashwani Kumar states.

Till then, the debate on the overall efficacy of fast track courts will continue.

(Published in The Telegraph, January 30,2013)

The images are as stark as they are real. The burly man in khaki comes tearing at the protestors aiming his stout cane at their heads. The men in blue pocket a wad of notes from a truck driver. The bored man sitting with his cronies in his office spits out betel juice to say that a complaint cannot be registered. And the drunk, pot-bellied man pushes a woman to the floor as he weighs down on her.

From Chennai to Calcutta, Delhi to Mumbai and Imphal to Srinagar, these are images that spring up the moment you mention the word police. Arguably, the most hated section of society is not the politician, but the policeman in India. The lathi charge on protestors in Delhi’s India Gate – who had gathered on December — to voice their concerns about the safety of women after the brutal rape and murder of a 23-year-old Delhi woman only reinforced the general belief that the police force across the country was there not to safeguard the people, but to harass them.

To be sure, there are any number of honest, efficient and considerate men and women in the force. But the number of people who are at best uncaring, and at their worst brutal or murderous, is so overwhelmingly large that the police continue to instills fear among the people. “The police are an essential force but unfortunately not popular,” admits former additional commissioner of Delhi police, Gautam Kaul.

And that is putting it mildly. “They don’t discharge their duties correctly, they are rude and abusive to people and they intimidate people instead of helping them – these are some of the most common complaints against the police” adds Prakash Singh, former director general of police, Uttar Pradesh.

A victim of rape in east Delhi recalls how traumatic it was for her to lodge a complaint with the police. “First, the police were not ready to believe that I had been raped as the rapist was known to me. They insisted that it was consensual sex. Then they started questioning me instead of nabbing the culprit. Finally, I had to take the help of a local group to get my case registered,” she says.

Unfortunately, despite talks of reforms, the image of the police – who are under the jurisdiction of respective state governments, except in Delhi, where they come under the ministry of home affairs — has not improved over the years. A study conducted by the Bureau of Police Research and Development said so over three decades ago. “The image of the police in the minds of the public is not good. As a result, the police fail to secure the cooperation of public in its fight against crime and disorder,” it said in 1979.

Police action – or inaction – can have grave repercussions. Recently, a minor girl in Patiala committed suicide a month after she was allegedly gang raped. Her family said the police did not act on their complaint against the accused, who were from the same village.

There are also numerous occasions when the police themselves turn into perpetrators. In Mumbai, a constable called Sunil Atmaram allegedly raped a 17-year old girl in 2005 inside a police station. The constable was drunk and had hauled the teenager to the police station with her boyfriend when he found the two together at the Marine Drive promenade. He sent the boyfriend out after threatening him, and then raped the girl.

Members of the police are accused of a host of crimes – from bribery and intimidation to rape and murder. Fake encounter killings are common in troubled areas. The fake encounter killings of Sohrabuddin and Tulsiram Prajapati in Gujarat in 2005 created such a nationwide furore that the Supreme Court ordered an inquiry by the Central Bureau of Investigation into the case.

The situation is similar across the country– though the intensities vary. According to National Human Rights Commission (NHRC) data, Uttar Pradesh has the dubious distinction of the state with the highest number of fake encounter killings. In 2010-11, it received complaints that 40 people were killed by security forces in UP in such encounters. According to the NHRC, some 191 fake encounter killings took place in the country in the last five years. Supreme Court, on Friday, had set up a three-member commission to investigate cases of fake encounter killings in Manipur.A petition in the court had alleged more than 1,500 fake encounters took place in Manipur in the last three decades.

Incidents of police firing on citizens are not rare either. In September last year, the police opened fire against demonstrators protesting the opening of the Kudankulam nuclear power plant in Tamil Nadu and killed one fisherman. In June last year, four villagers in Bihar’s Forbesganj died in police firing. Last month, a journalist in Imphal was killed in police firing while he was covering a protest against the molestation of a local actress by a militant. In Kashmir, 91 civilians were killed in police firing in 2010.

Some argue that the police conduct these acts with impunity because of political patronage. In September 2011, five Dalits were killed when the police fired at Dalit agitators who had put up a blockade at Paramakudi in Tamil Nadu. Chief Minister J. Jayalalithaa had defended the police, saying that they had fired in self-defence and to protect public property.

Some argue the police conduct these acts with impunity because of political patronage. “The public is seen as threat to the State (government) by the police as they are trained to be the protectors of the State and not its people. In any other democratic nation, the public is dealt with professionally,” says sociologist Nandini Sundar, who recalled how she had once complained against a powerful lawyer neighbour – and found the police unresponsive.

The police-politician nexus hit the headlines after Jessica Lal’s murder in 1999. The Delhi Police had admitted that senior officials had tried to help the main accused, the son of an influential Haryana Congressman. “The police don’t feel the need to be accountable to the public because their loyalty lies with politicians. Cops know they will get good promotions or postings if they please politicians,” says a home ministry official.

Even women cops do little to instill confidence among the people. “The problem is that female cops too come from the same police culture of corruption and brutality. How can they be any different?” asks N. Dilip Kumar, joint commissioner of police, provision and logistics, who had earlier served in the anti-corruption and vigilance departments of the Delhi police. “Indian policing is all about batons and bullets and criminals and charge sheets. It is unfortunate that cops don’t remember that they are dealing with human beings,” he says.

There are reasons for this. Experts maintain that the Indian police are carrying on the legacy of their colonial predecessors – who saw the agitating people as the State’s enemy. “Since the colonial times, the police are seen as the instrument of torture,” admits a senior official in the Calcutta police’s crime department. “It is the face of hostility and brutality. And sadly, the colonial mentality of cops hasn’t changed even in the 21st century.”

Adds S.A. Huda, director general of police (law and order), Andhra Pradesh: “The uniform and the baton symbolise power.” Coupled with this is a feeling of resentment. “So they vent out their class angst on the public, whenever they get a chance,” he says.

It’s not just that. In most parts of the country, just to get a lower-level police job means shelling out thousands of rupees – some estimate that it’s in the range of Rs 3-9 lakh – to the cops who recruit them. “So the moment they get inducted into the force, they want to recover the bribe money that they have paid,” says Prakash Singh. Bribes are paid by the cops through their service years – for a good posting at a money-spinning police post and so on.

The police also point out that constables are overworked and underpaid. “The stress piles up and then they snap in public. We manage a population of one crore only with 11,000 cops,” says additional commissioner of police (Law and Order) T. Sunil Kumar, Bangalore. Delhi – the capital of India – has a shortage of 7000 personnel, for example.

Salaries haven’t kept up with inflation either. “After 20 years of service, a constable would be promoted to head constable and his take home salary would be Rs 20,000,” Huda says.

With such handicaps, the efficacy of the police will be affected. According to the 2011 data of the NCRB, Uttar Pradesh recorded the highest number of cases of violent crime at 32,987, followed by Bihar at 26,003 and Maharashtra at 23,900 cases. In the south, on the other hand, especially Andhra Pradesh and Kerala, there were fewer examples of police atrocities.

A senior Delhi police official reasons that this is because the police in the north are insensitive to gender issues. “The north Indian patriarchal mindset is to be blamed,” says a senior Delhi police official. “Our force mostly comes from neighbouring states such as Haryana and Uttar Pradesh, where feudal mindsets are strong.”

But ironically more and more such men are being inducted into the force because they meet physical requirements. The Delhi police believe that men of a height of 5 feet 7 inches  or more and a chest measuring  81 centimetres are ideal for the job of a constable.

The tests for new recruits too follow a pattern that do little gauge the mind of a constable. The would-be recruit is tested in maths, English and reasoning but little beyond. “We just have to answer in yeses or nos. There is no scope to tell how we would behave in a crisis,” says inspector Raj Kumar of Delhi’s Kingsway Camp police station.

The negative image of police that one sees in the society is often reflected in popular culture such as movies, theatre, folk songs and even jokes. In many commercial movies, cops are seen to have reached late at the scene of crime, much after everything is over.

How bureaucracy affects the job of a cop was revealed In Mahesh Dattani’s play, Seven Steps Around the Fire also revealed .“In my play, I showed how bureaucracy affects the functioning of the police They can’t see things objectively.”

Some stress that it is time for reforms in the police force. “Specific classes on gender sensitivity, timely promotions and placing the non-corrupt officers at the highest level are some of the immediate measures to be taken to cleanse the system,” says Singh, who filed a petition in the Supreme Court in 2006 demanding police reforms.

The same year, a model Police Bill was framed which stated that state police boards be set up for deciding on promotion and transfers. Other recommendations included a fixed tenure for a police chief and other key functionaries. “This would have also checked political interference in the police system,” says Singh. The Bill, however, has been gathering dust.

A sense of belonging, some argue, has to be instilled in the forces. “They also have to feel that they are for the people,” says Sanjeev kumar Singhal, joint commissioner of police, Pune.

That, however, seems a distant dream. For the present, many would say that the police are not for them – but against.


Caught in the Act

1974: A 16-year-old tribal girl, was allegedly raped by two policemen on the compound of Desai Ganj Police Station in Chandarpur district of Maharashtra.

September 2006 : Five policemen accused of allowing passage of arms and ammunitions from Rajgad to Mumbai which were later used in the series of 12 blasts in 1993 were convicted under Terrorist and Disruptive Activities (TADA)

August 2008: Mumbai police’s encounter specialist Pradeep Sharma was dismissed on charges of corruption but was reinstated on 9 May 2009. . He developed close links with underworld don Chhota Rajan.

October 2008: An Uttar Pradesh police head constable posted at Sahibabad police station alleged to have criminally assaulted a minor girl inside the police station.

November 2011: A woman was dragged out of her house in Hariharpara of We st Bengal’s Murshidabad district and was gang-raped by cops inside the police station.

May 2012 : A police Inspector in Uttar Pradesh’s Amroha district turns body of a dead man with boot to see bullet injury.

July 2012: A teenaged girl allegedly kidnapped by three men in UP’s Sitapur was reportedly recovered, detained illegally for five days and repeatedly raped by a policeman and a village chowkidar before being handed over to the family.

August 2012: A 23-year old injured man dies in front of police station in Indore after being denied medical aid.

November 2012 : Delhi Police officer Dinesh Dahiya caught red-handed by CBI for taking Rs 3 lakh.Cash worth Rs 4.25 lakh was also seized from Dahiya’s house.

December, 2012: A gang-rape victim from UP’s Ambedkar Nagar was allegedly raped by the inspector in charge of the police station where she had lodged her complaint.

December 2012: A  mentally challenged man was dragged, punched, and kicked by policemen in Satna district of Madhya Pradesh

December 2012: A constable arrested on charges of raping an Class VIII student in south east Delhi.

December 2012: A 35-yr-old man died in police custody in Mumbai’s Dharavi police station. Family alleged police toruture the reason for his death.

  (This is the longish version of the story published in The Telegraph on January 6, 2013). There was additional reporting by Kavitha Shanmugam in Chennai and Velly Thevar in Mumbai

Two Sundays back, precisely on December 16, I had barely started my evening walk in a neighbourhood park when the street lights went off. At half past eight in any winter evening in Delhi, parks are usually deserted. As the lights went off, I realised that I am left in the company of four strangers – a middle-aged male walker and a group of three young footballers.

As I conitnued to walk, I started having premonitions. “What if this man molests me, will these young boys be of any help?” “What if these boys join him in and all four gang-rape me?” “Will people from the neighbourhood come to my rescue?” “Will I be mentally strong enough to report to the police?” .

But I didn’t let these thoughts occupy my mind for long and continued to walk for next one hour.

Next morning, the news channels were flooded with the story of a 23-year old woman who was gang raped by six men in a bus around nine in the evening. She and her accompanying male friend were brutally beaten up with iron rods, and were thrown off the bus.

So, a rape did happen in my city the previous evening when I was thinking what if I get raped. The only consolation was that it was not my turn that day. But like other women in this city, I too was reminded, all over again, that Delhi isn’t safe for us.

After staying in this city for over eight years, incidents of rape don’t really surprise me anymore. But there was something about this incident. In no time, this news travelled like wildfire.People started demanding the arrest and faster conviction of these six men. There was widespread condemnation of the incident followed by nationwide protests demanding safety of women. Meanwhile the girl continued to battle for her life in Safdarjung hospital.

I couldn’t take my mind off this incident either. It was not just a story for me but it had started having an insidious effect on me.

The fear of getting raped grew more and more in me. I started imposing restrictions on my mobility. On my sister’s advice, not only I stopped taking a bus or a metro to work but I had also stopped driving late. I had stopped my evening walks. I had stopped meeting my friends late in the evening. I had stopped going for evening shows even at a nearby cinema hall, which is barely 300 meters away from my house. I must confess that these restraints had terrorised me internally. I was slowing becoming fearful and timid. I was turning into a coward, which I never was, I never wanted to be.

I came to Delhi in 2004 and like any other woman in the city, I too had my share of unpleasant experiences.

Travelling in Delhi buses was never a pleasure. I still vividly remember my horrifying experiences of travelling in  bus route number 883. On my way back from office at ITO, I used to take any Blue Line bus from ITO to Kashmere Gate and then take another connecting Blue Line of route number 883 from Kashmere Gate to North Campus, mostly post 9.30 pm, after work. There had been instances when male passengers ogled me – the only female passenger on-board. Often in crowded buses, men have tried to touch and grope. When I had asked them to move off, some silently obeyed but many rebelled and refused to budge with no remorse. Once, I had slapped a man who tried to fondle my breasts while getting off the bus that I was about to board. He was obviously using the wrong gate to de-board.

The anxiety whether I would return home safely or not had always preoccupied my mind. Every day, I told myself, “don’t take risks”  and “don’t invite trouble.” Yes, I was always alert but never a quitter.

But I must say that I had never found suggestions like “keep a knife or a pepper spray” feasible.I am yet not convinced if one can really use them at the perpetrator at the right moment. How is it possible to push the spray button in a crowded bus?By the time, I would have tried to do it, the shameless man would have already de-boarded the bus and hopped on to the other to harass another woman or to look for his next prey.

Recently, Delhi government  decided to deploy home guards in buses from 11 pm to 4am to ensure safety of women passengers. I wonder which girl has the courage to travel in a bus post 10 or 11pm? These home guards should be deployed post 7.30-8pm because the molesters often get active soon after the sun goes down.

But buses are not the only places where women are being eve-teased in this city.Like any other girl in this harsh and hostile city,I too have encountered bikers who would ask, , “chalti hai kya?” or “Hi baby,chal na hai?.” I have always avoided any confrontation with such  cheeky men on streets.

When one night at 11.45pm, I took a rickshaw from Vishwavidyalaya station to my house in Outram Lines, I was followed by a young man who had wanted me to respond to his advances and go with him in his car.I ignored him and had asked the rickshawpuller to speed up. He followed me till the gate of my colony but didn’t dare to go any further.

For the past year and a half, I have been driving. It has certainly minimised my chances of being sexually harassed but that doesn’t mean I am absolutely safe. Often, men have hurled abuses at me because I refused to jump a red light thus blocking their way t o overtake or took a little longer to park my car keeping them waiting in queue. It is a truth universally known that men in Delhi look down upon women drivers. But what had amazed me that many women take pride in their supercilious brothers and boyfriends and husbands who ridicule women drivers by saying, “ladkiyon ko gaadi nahin chalana chahiye”(girls should not drive), “yeh zaroor ladki chala rahi hai” and “yeh zaroor ladki ne park kiya hai. (taunting women for their ‘poor’ driving and parking skills).” I am sure such comments are not made at male drivers, no matter how bad or reckless they are.

But I must say that these unpleasant experiences have made me a fighter. They have made me learn how to survive in this city. Yet, the fear of getting raped hasn’t really gone off my mind.

But this fear is not really Delhi-centric. In fact, there have been times when I had felt intimidated and threatened by autowallahs and taxi drivers in Calcutta. Whenever I had any argument with them over issues of refusal or over-charging, I had feared that they would go violent, drag me into the taxi or auto and rape me just to show how powerful they are.

But the question is not about Delhi or Calcutta. As a woman, I don’t I feel safe anywhere in my own country.

For my work, I often travel to the obscure places of the country. Three years back, when I was in Bastar, I had to travel from Dantewada town to Sukma as a pillion rider with a local. It was a 10-hour journey both ways through the dense jungles. As the evening inched closer, I feared that the security forces especially the CRPF known to harass tribal women of the Maoist belt may be on the prowl. But thankfully, nothing unfortunate had happened and I came back to Dantewada town safely.

After Bastar, I have travelled to many other far flung areas like Churachandpur in Manipur, Guntur in Andhra Pradesh, Narayanpatna in Odisha, Kokrajhar in Assam  etc for reporting. But I have never travelled alone to these places. What has travelled with me is my fear – my fear of getting raped.

But something changed this Saturday morning, December 29. At 4.30 am, I was informed by a reporter friend that the 23-year- old- girl had passed away .Government had claimed that they had shifted her to a Singapore hospital for better treatment. Not that any of us was expecting any miracle but the news of her death forced me to pause and introspect my own apprehensions related to rape.

It is not rape that caused her death. She died because her attackers had damaged her intestines. If she would have recovered from her physical injuries, I strongly believe, she would have lived a normal life (or at least, would have tried to do so despite the society victimising her). She would have sent a strong message to those six men who wanted to “teach her a lesson”. She would have emerged out to be a fighter. She would have certainly proved BJP leader Sushma Swaraj wrong, who said rape victims are no less than “zinda laash”(living dead).

On Saturday, I also realised that my self-imposed curfew won’t really save me from any evil. Anything unexpected can happen anytime .A bomb blast can maim me. I may be detected with any terminal disease. Will the trauma or pain in these cases be any less than rape? Why can’t I treat rape just as a contusion, which has to heal with time? I understood, the healing would be faster if I turn all the more stronger mentally.

Of course, rape is one of the most heinous crimes but why should I believe rape is the end of life? Even though I strongly believe that rapists should get the harshest punishment(I consider imprisonment for entire life, and not 14 years, is the most harsh punishment. I don’t think death penalty will act as a deterrent), but why would I kill my peace of mind because there are perverts on the prowl? The fight against the rapist would be fearless for a survivor if she is mentally strong enough to think positive and move on.

So before I call for a change in the patriarchal mindset of men, who rape women because they think that it is the best way to  teach them a lesson or overpower them, I need to change my own thinking. I need to break free from the shackles of this constant fear of getting raped.

The process has slowly begun.I am not scared to drive late anymore. I would soon go for an evening show in the nearby theatre.  I have resumed my evening walks too. I, no more, live with the fear that it could be my turn today.

(You can mail your feedback at sonia_26)

Neha Taneja does not want to step out of her house. For almost a week, the 21-year-old Delhi student has stayed home, not willing to go to a pub or a movie. “I fear that if I go out, it will be my turn to get raped,” she says.

 Taneja’s concerns are real. Last Sunday’s incident of a brutal rape and assault have instilled a sense of fear in the minds of Delhi women. Six men raped a 23-year-old woman in a moving bus, beat her and her male friend with iron rods, and then threw them off the bus.

Spread over 1,482 square kilometres, Delhi — famous for its historical monuments, broad roads and butter chicken — is now being seen as a city that has no place for women. Not surprisingly, the media have started calling it the rape capital of India.

Statistics corroborate the fact that Delhi is unsafe for women. This year so far, 661 rape cases were reported in the city, according to National Crime Records Bureau figures. Last year, there were 572 reported rape cases — far higher than such incidents in Mumbai (221), Bangalore (97), Chennai (76) and Calcutta (46). According to government data, rapes per lakh population are higher in Delhi than in any of the metros. Jabalpur in Madhya Pradesh has the highest rate (7.3) in the country, but experts say because the city is a small town with a smaller population than Delhi’s, the number of rapes in Delhi far exceeds those in the MP town.

“There has been a 20 per cent rise in the number of complaints related to sexual assault that we have received over the past two years,” says Nilanju Dutta, manager, violence intervention team, Jagori, a Delhi-based women’s organisation.

What makes Delhi so unsafe?

A combination of factors, say experts — the ever-expanding city has low police vigil and an ever growing migrant population. “The city is being stretched from every corner. It is not possible to set up police stations near every new colony,” says a senior Delhi police official.

The porous borders that the city shares with states such as Haryana and Uttar Pradesh also make it unsafe. “Many crimes are committed by migrant drivers coming from neighbouring states who get drunk and harass women,” says the police official.

But the blame cannot be blindly put on migrant workers because the city’s rich have a criminal record too. “A group of neo-rich has come up in the city. They have money but little education. Often, being intimidated by the English-speaking crowd, they pick up fights in pubs and nightclubs and vent their frustration by sexually assaulting women,” says the officer. And there are enough cases of rapes being committed by the powerful and affluent.

The city — with its vast fleet of vehicles (7.2 million, exceeding the combined vehicle population of Chennai, Calcutta, Lucknow and Mumbai) — is difficult to manage. Rapes are often conducted in moving vehicles.  In 2005, a student from Mizoram was gang-raped in a moving car in Dhaula Kuan and also in 2010, a 30-year old BPO employee from the north-east.was also gang-raped in a moving car. “But it is not always possible to keep a check on every vehicle,” says Dharmendra Kumar, commissioner, Special Commissioner of Police (Law and Order).

 Home to over 1.67 crore people, the city has also come up over the years as the workplace of diverse communities. In that sense, it’s unlike other cities which invoke a sense of regional pride. “There are many cities living together in Delhi without integrating with one another,” says social commentator Santosh Desai. “There is no sense of belonging. It is a users’ city where people come only for work opportunities with a strong sense of detachment,” feels Desai.

This detachment is often reflected on the streets, says criminal psychiatrist Rajat Mitra. “Women fight a lonely battle against harassment because Delhiites are mostly mute spectators,” he says.

The city has long stretches of lonely roads where the security cover is not adequate. One policeman is in charge of the security of 400 citizens and one public call response (PCR) van handles law and order over a 10-kilometre stretch.

“Further, the body language of policemen doesn’t generate confidence in women. The police also often refuse to lodge complaints of sexual assault,” says National Commission for Women chairperson Mamata Sharma.

There are others who believe the issue goes beyond the police. They say, the problem lies with the people of the city.

“The problem is with the patriarchal mindset of the people of north India. Also, traditionally, they lack sense of civility. They need to change their attitude towards women,” feels former additional commissioner of police Gautam Kaul.

Even though Kaul says that he is not stereotyping men of north India but he adds, “North Indian men don’t want women to be on par with them.Also, they cannot take rejection from women.”

In fact, in the recent rape case too, the accused driver Ram Singh raped the girl to teach her a lesson because she protested when Singh taunted her for being out so late with her male friend.

“Some men think that women are their property. They think they are entitled to sex and thereby control female sexuality at their will,” adds Supreme Court advocate Aarthi Rajan.

Some say that north Indian men are habituated to see docile women at home and therefore they expect similar behaviour from women on roads. “Women in north Indian households traditionally don’t protest. So men get aggressive and revengeful when a woman protests,” thinks Calcutta-based psychiatrist Dr Jai Ranjan Ram. He adds, “This is not a situation in a city like Calcutta or Mumbai.”

But the cops also say that these incidents get media coverage because they are occurring in the country’s capital. “Incidents like these happen in every city,” says the senior police official.

Kumar adds that Delhi’s track record is better than that of other cities. “The incidence of rape per lakh population is 52.8 in London and 10.6 in New York whereas it is 4.07 in Delhi.” Others, however, point out that rape has a wider definition in the West, where cases are also reported more often and taken more seriously.

But Kaul stresses that such incidents can be curbed if the law and order is improved. “Our past experience says that those who go scot free by doing petty crimes often get involved in ghastly acts like rape. The accused in this case too had a criminal background,” says Kaul.

Delhi is a city where people from across the country converge. But with increasing lack of security, not many would repeat the words made memorable by the 19th century poet Zauq: “Who could bear to leave behind the alleys of Delhi.” Who, a 21st century poet would write, would want to walk down dark alleys?

Despite a Supreme Court order questioning its efficacy, the investigation of rape cases often involves a clinical test that is humiliating for the victim. It is time to abolish the practice.

In August this year 21-year-old Malati Jha (name changed) was coming back home from her tutorial classes when she was allegedly raped by her neighbour in a dark bylane of east Delhi. A day later, she lodged a complaint with the police. She was taken for a medical examination that involved the per vagina (PV) or the two finger test. Though she twitched in pain, she didn’t have any option but to go through it.

“The doctor inserted her two fingers into my vagina. She said that this test was necessary to ascertain if I was raped. I wanted it to be over soon,” recalls Jha, who feels the test was almost as humiliating as the rape.

According to doctors, this medical test is done to check the level of vaginal laxity that determines if the victim is “habituated to sexual intercourse”.

But legal experts call this test “illegal” as the Supreme Court in 2003 had labelled it “hypothetical” and “opinionative”. Again, in 2010 Delhi’s additional sessions judge Kamini Lau had said that the test “traumatises the survivor and gives the defence… a stick with which to intimidate and demoralise her in court.”

According to the National Crime Records Bureau, 24,206 rape cases were registered across the country in 2011. If the ongoing trend of medical examination is anything to go by, every rape victim is subjected to this test.

But there has been widespread condemnation of this practice. In 2010, a report titled ‘Dignity on Trial: India’s Need for Sound Standards for Conducting and Interpreting Forensic Examination of Rape Survivors’ released by international human rights group Human Rights Watch stated that defence counsel use the findings of the finger test “to shake the morale of survivors and challenge or discredit their testimony. In some cases, defence counsel even use the findings to claim that sexual intercourse was consensual.”

Legal experts dealing with cases of rape tend to agree with that. “The test violates the fundamental right to privacy of the victim,” says criminal lawyer K.T.S. Tulsi. He adds, “Plus, the act of determining if the victim is habituated to sexual intercourse or not is itself degrading for a woman. In a way, this means that rape of a woman habituated to sexual intercourse is justified. It questions the moral character and dignity of a woman and increases the prejudice which exists against a survivor.”

Activists say that the World Health Organization too stresses that the health and welfare of a survivor of sexual violence is “the overriding priority” and that forensic services should not take precedence over it. “It also says forensic examinations should be minimally invasive and that a purely clinical procedure such as the bimanual examination (which also involves the insertion of two fingers into the vagina) is rarely medically necessary after sexual assault,” says Raj Mangal, vice-president, programme, Pratidhi, a crisis intervention centre in Delhi.

But the police and government hospitals have turned a deaf ear to such observations. In fact, the forensic template that the police follow in rape cases asks the examining doctor to give an opinion on whether or not the hymen is intact. “And the finger test is necessary to see if the hymen is ruptured,” says a gynaecologist at Delhi’s Lal Bahadur Shastri Hospital, who conducts the test on rape victims.

But forensic experts feel that the examination of the position of the hymen is of little consequence. “The hymen is a flexible membrane that partly covers the vaginal opening. The popular notion that there was no rape if the hymen is not ‘torn’ is wrong. At the same time, a hymen can have an old tear and its orifice may differ in size for reasons that are unrelated to sex. The assumption that a woman’s hymen can only be torn as a result of sexual intercourse is absolutely baseless,” says Dr Sudhir Gupta, associate professor, department of forensic medicine and toxicology, All India Institute of Medical Sciences.

He also adds that examination of the external injury of the victim, collection of vaginal swab, pubic hair and blood samples, are enough to prove if the complainant has been raped.

The government too seems to feel that the PV test should be done away with. Last year the Union ministry of health and family welfare made it optional. “We had stated that the PV test would be conducted only ‘if medically indicated’ and with the ‘consent of the victim’,” says a senior ministry official.

But victims say that they are not informed about the test beforehand. “The doctor asked if I would like to go for a medical test. I gave my consent but she did not specifically mention that the finger test is also a part of the medical test,” reveals Jha.

Several non-government organisations that act as crisis intervention centres in rape cases say that they are trying to make the medical examination more victim-friendly. For example, the Mumbai-based Centre for Enquiry into Health and Allied Themes (Cehat), in consultation with doctors from across the country, has developed a rape examination protocol that leaves out the question on hymen rupture. But so far only three hospitals in the city have adopted it.

“Our proforma was overlooked. The proforma that is followed has scope for comments on the past sexual history of the victim,” says Padma Deosthali, co-ordinator, Cehat.

Legal experts also say that the government’s failure to comply with the Supreme Court order amounts to contempt of court. “A victim has every right to go to the court challenging the test. The court can always hold the medico-legal team guilty. State police and doctors should understand that apex court orders are not mere paper tigers,” says Tulsi.

He feels that India should have a rape shield law similar to the US which limits a defendant’s ability to cross-examine rape complainants about their past sexual behaviour. “I feel that a rape shield law would serve legitimate public interest in encouraging rape victims to come forward and prosecute the crime,” says Tulsi.

Pending that, at least the two finger test used to investigate rape cases ought to be dispensed with, argue activists. As Ranjana Kumari, director of the Delhi-based Centre for Social Research, says, “Police, doctors and prosecutors — all should work together to stop the test from being administered. It should be a joint effort to standardise evidence collection to protect the rights of survivors.”

The Telegraph. December 12, 2012.

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