There was no one to answer the survivors’ doubts and fears and be with them in their moments of anxiety and panic. No one to offer emotional, social, medical and legal support while they endured the gruelling criminal trial.
Flavia Agnes in Asian Age
The latest Amul ad says it all. A male public prosecutor on one side, a woman judge on the other, and the endearing Amul girl imploring with folded hands to the judge — “Mete it out fairly!” — while the caption blares Insaaf shakti se mila! This ad accurately captures our sentiments.
Even while demanding state accountability and prompt and stringent action, we have stood firmly and unwaveringly against the death penalty. Rape is not murder and a woman who is raped is not a zinda laash. Even when committed by the accused more than once, rape cannot be termed as the “rarest of rare” offence. If rape is equated with murder, more women will be killed after they are raped. The death penalty is medieval and barbaric, not a sign of a civilised society. Do not award it in our name.
After the gruesome gangrape of a paramedic student in Delhi in December 2012, the protesters had demanded death penalty. That case resulted in the death penalty, not because a stringent law was enacted subsequently, but because it was a heinous crime — of rape, brutality and murder — invoking the “rarest of rare” title.
Though the women’s movement and the Verma Committee report did not recommend the death penalty, this provision has been made part of the amended law, but still remains within the scope of “rarest of rare”. It can be invoked as and when public sentiments so demand or to save the honour of a city, as in the Shakti Mills rape cases.
When faced with this challenge, no stone can be left unturned. So the trials were “showpiece” cases for the state. The criminals were detected and arrested without delay. The statements of victims were detailed, gory and graphic. The forensic reports nailed the accused. The charge-sheets were filed within a month. A highly connected special public prosecutor was appointed at huge cost to the state. Over 100 witnesses deposed and the trial was concluded in record time. Everything was worked out to the minutest detail, except care and protection of the survivors.
The girls, a 22-year-old from an ordinary middle-class background, an intern with a media group, referred to as the photo-journalist; the other, even younger, barely 18, a school dropout, from the lower strata, referred to as the telephone operator (a misnomer used for convenience), both daughters of single mothers, struggling to make ends meet. Insignificant cogs in the wheel of justice!
Within a conviction-driven criminal justice system, the girls were mere witnesses to the high-profile drama being played out, within the courtroom filled with melancholy and histrionics. Though the trials were “in camera”, regular media briefings ensured that the momentum of public curiosity was not reduced.
The crescendo had risen to such an extent that, as support persons, we had to urge the police to provide them with additional security, so that their privacy and confidentiality is protected from the intrusive media glare. “Additional security” meant 10 burqa-clad women police officers, walking with the survivor at the centre, also in a burqa, while the mother and our support person trailed behind, without burqa. The melancholy trial had its lighter moments too!
But outside of the context of their case, the girls were a non-entity. Even minimum protection was not offered nor was their dignity maintained. Though the Maharashtra government had abolished the intrusive and degrading “two finger test”, the telephone operator was subjected to it, in a mindless manner, though it had no relevance to the case as it was done one month after the incident. The irony, the protocols were drafted under the guidance of the civil surgeon of the JJ Group of Hospitals along with senior officers of the state public health department in May 2013, four months before this incident and doctors had undergone training regarding these protocols. As the judgment has rightly pointed out, the tests had no relevance to the case at hand but were done in a routine manner. This only goes to show that framing the most ideal guidelines is easy. Ensuring that they are followed is the challenge. If JJ Hospital, which had framed the guidelines, itself violates them in a high-profile case, what fate awaits those in far-off districts. The trial judge has rightly pointed this out.
During the test identification parade, the victims had to come face to face with the accused. They were asked not only to point a finger but also to touch the accused to identify them, within a few days of the traumatic incident. So much for care and protection! The facility of identification by video-conferencing was not availed of. Despite the intrusive media glare, the facility of recording evidence by video-conferencing was also not availed despite our urging. So the girls were asked to appear in court in person and bringing a great deal of additional trauma to them. Even a screen was not in place to shield them from the direct gaze of the accused until this fact was brought out in the media.
While the two survivors continued to go through their ordeal, there was no one to answer their doubts and fears and be with them in their moments of anxiety and panic. No one to offer emotional, social, medical and legal support while they endured the gruelling criminal trial.
That was left to lesser mortals, the NGO support persons, “the do-gooders”. It was not a state responsibility. What is even worse, no call was made to the young 18-year-old, a non-English speaking girl, when her case ended in conviction. There was no time for that. And anyway her “use” for the case was over and it was the moment for the state and the prosecutor to bask in the glory of the conviction.
And to make history, by urging the court to add the additional charge meant for repeat offenders, under Section 376E of Indian Penal Code, which warrants the death penalty.
This section was added for those offenders who are beyond redemption, who commit the same offence after conviction. But the wordings, “previous” and “subsequent” were interpreted to mean that it could be applied even when the trials have gone parallel and the conviction just a few minutes apart. This is a dangerous trend which would rob the death penalty of its premise of “rarest of rare”. This is not what we bargained for, when we demanded a change in law. Restoration of dignity and care and protection was to be the new mantra, in addition to financial and other support to enable rehabilitation. None of this was available, even in a high-profile case.
The writer is a women’s rights lawyer