By YKA Staff:
Editor’s note: Following are transcribed excerpts from an answer that lawyer and human rights activist Vrinda Grover gave during a panel discussion on the riots that took place in the districts of Muzaffarnagar and Shamli in September 2013. The panel discussion was organised on September 8, 2016- the third anniversary of the riot- for the launch of a researched account of the conditions of people displaced by the riot (Living Apart: Communal Violence and Forced Displacement in Muzaffarnagar and Shamli). Grover detailed her experience of fighting seven rape cases, the state apathy and complicity that she witnessed, and how all this has failed the rape survivors of the 2013 riot.
I will talk about them to also illustrate what is happening on the issue of justice and it’s not peculiar to Muzaffarnagar. It’s happened earlier in Gujarat, in ’84 in Kandhamal; but to see that despite that impunity being underscored, despite all the documentation being done, it being laid bare where the complicity of the system is, that we are not able to rupture the impunity. And if the legal system gives no confidence to people, particularly to women and others that there’ll even be a remote possibility of any redress, to expect people to keep walking into courts to further get their life being torn apart is something that I think we cannot make a demand on people to do.
It was Shabnam Hashmi’s organisation (ANHAD) which brought to my office seven women- six from one village and one from another village. I am just going to go through a list of dates because people here have engaged with these issues multiple number of times and I think the dates in themselves speak volumes.
As Rizwan and Firdaus told us, 8th September, 2013 was the date on which this violence came on in full force although the simmering of it was there the evening before. People were displaced, families were displaced. Some of the women in conversation with their families and husbands…because they belonged to one village- in fact two of them were related to each other- in conversations with each other they did take the matter and lodged at least some FIR. Even though it may not have been detailed but names were given. All the gangrapes were by men who belonged to their own village. They were known to them. There was no stranger who came. It wasn’t a faceless, nameless mob that came and gangraped the women. In fact, one of them said her husband was a tailor and some of those men would come to her house to get clothes and there were various kinds of economic, social relations that they had with and therefore they recognised the rapist and they named them in their FIRs from the very first day. Petitions were filed in the Supreme Court on various grounds- on relief, rehab, compensation, etc- and I had filed on behalf of these seven women asking for specific directions for women who had been gangraped and their cases.
Actually it was quite interesting the way the state of U.P. conducted itself, which is a little different from the way the state of Gujarat ever conducted itself. State of Gujarat till the end is fighting over every penny that is to be given even for rehabilitation in the colonies and (this) has been perhaps the worst record of any form of compensation given in any violence. State of U.P. in contrast was more than keen, because they wanted to wash away anybody labelling them or naming them as having been implicitly or explicitly part of this kind of violence. So whatever the court wanted…and they would get very, very senior lawyers of the Supreme Court all representing the state of U.P. and it was clearly buying back the good name of Samajwadi Party that was at play openly in the Court. We had asked for compensation and the state of U.P. was very happy to give it and it was clearly not coming out of any politician’s or chief minister’s pocket. It is the taxpayer’s money, so how does it matter how it is thrown at you.
And I think here we need to see also where it’s located. This happened in September 2013. Prior to that, in 2012, Delhi has witnessed a huge public upheaval. Post the gang-rape, there is the Verma Commmittee report. There is the Criminal Law Amendment Act. The Supreme Court is sitting in the midst of all that and then it is responding to cases of gangrape that are coming from a totally different context of communal violence. But the Court is not sensitive but attentive to the issue that you cannot just ignore that gangrape has taken place. And therefore they addressed it by saying, ‘Yes, we must give them compensation’ and this is perhaps for the first time that women are getting compensation even before FIRs were registered, because in one of them FIRs had not been registered, and five lakh compensation was ordered immediately and the state of U.P. did not protest for a minute. They said they would happily award that 5 lakh.
The court ordered, in the midst of the proceedings, that the FIR be registered for one woman, which was then registered because the police had until then refused to register it. Arrests had not been made. So they actually took this plea in Court that every time we go to arrest them, the women stand at the village and they don’t let the police, the U.P. police come in. It’s also absolutely correct what Rizwan said. Every time any arrest was to be made, there would actually be a message sent to the village that the police force is coming. So the person would conveniently leave the village. So the complicity between the SIC (Special Investigation Cell) and what was happening on the ground was more than apparent and the Court of course said strong things. It said, ‘We can’t accept this’.
One of the women’s magisterial statement under 164, the way it was recorded, she had actually been threatened a week before or two days before, I forget, at a bus station that your youngest- she had one son who was quite little- that ‘We’ll bring harm to him if you say anything in the court’. So she went and gave a statement to the magistrate and said, ‘Mujhe malum nahi kisne kiya’. And later she said, ‘I do want to actually make the statement’. So we asked the court to allow her, that she said it under duress, and the court allowed a fresh statement of her to be recorded.
And these women told me that when they were taken for the medical examination to the Muzaffarnagar district hospital, they had in their displaced condition in camps still worn new bangles on Eid, because, you know, when you are living you actually do live. And the doctors there had told them, ‘You are telling me you were raped and you are looking very happy wearing these bangles’. So they were not fitting in the mode of the rape victim. In fact every time they would come to Delhi to my office, they would always be dressed well. So that’s part of a person’s dignity. People are not going to be appearing there for you. People deal with their trauma and grief in private. It’s not for public display or exhibition . And so the media was finding it hard how to capture these women who…all of them were married women, they were all women with quite a few children. So it wasn’t a young woman who had been gangraped. So they weren’t really fitting the image of the raped woman.
There was a specific amendment made in the criminal law in 2013 which introduced as aggravated rape- rape during communal or sectarian violence, which emerged from the understanding of what had happened in earlier similar targeted violence and is now in the Indian Penal Code as a form of aggravated rape. Muzaffarnagar fell squarely in that. Of course that section was not invoked. We mentioned that in our writ and the court cannot direct the police to do as per law but asked them. So the SIC that was formed, we were given a woman investigating officer.
Finally in 2014 October, which is one year later, which is not what the law asks them to do, they file a chargesheet. These are fast-track designated courts with a special public prosecutor appointed by the Samajwadi Party, who is a Muslim. So all this is meant to assure us that we’re moving in the right direction. The case to commence reaches 2015. The cases of two of the women have not started. In criminal cases, the first stage is framing of charge. Charges have not been framed in 2016. There is a provision in the Criminal Procedure Code which says once the chargesheet is filed, a rape case will be concluded within two months of filing the chargesheet. I filed a contempt petition in September 2013. What I am trying to show is that until and unless you are going to keep on moving the system, there is nothing today in the system. It is not going to proceed on its own. We get a judgment from the Supreme Court in March 2014. In September 2014, we go back to the Supreme Court with a contempt petition saying ‘None of your directions are being followed’. It’s only when the contempt petition gets filed, because in the contempt petition you will name police officers and administrators who have committed contempt of the Supreme Court judgment, immediately they will understand Section 376 (2g) relating to caste violence and communal violence and that section appears magically in the chargesheet and chargesheets get filed and arrests also dramatically get made. And the Allahabad High Court actually starts giving bail to all of them on orders which are very, very difficult to comprehend. It says, ‘Oh that woman has been given compensation. Everybody seems to know each other’. I don’t know why that is an act of complicity on the part of the victims. And then we have to move for filing of cancellation, which again is something that the state is required to do and of course the state is playing its own long game and courts actually allow that to happen. It doesn’t happen by default. And that time is given. Time is given to the state to buy off systems, to buy off people.
And I really think travelling to Muzaffarnagar District Court was actually an important experience in my life. I moved an application for an in-camera hearing which is done very routinely in places like Delhi, etc, and the judge had never heard of it. And he asked the prosecutor. ‘Iss madam ki application check kijiye’. So the prosecutor told me, ‘Come and tell me what this is’. I opened the law book, showed him the sections. He then goes back to the judge and says, ‘Ye theek keh rahi hain. Isme likha hua hai’. I was not going to surely make up an in-camera trial and move an application to court but that is what is happening in our country two and a half hours away from Delhi and western U.P. has a very high degree of sexual violence of various kinds against women. It did not know about an in-camera trial which we take for granted for people here.
One of the women, (in) her case the defence counsel filed some application. The arguments on that concluded after many months in October 2015. We are today in September 2016. It’s a preliminary application prior to framing of charge. The court has not passed an order. The fast-track court has not passed an order on an application argued from March 2015 till October 2015. When I went again twice to remind the judge that you need to pass an order because we can’t move to the next stage till the order is passed, once he told me his computer had got corrupted. I am not sure what that…he meant ki ‘Maine order likha tha’. Then he said ki ‘Aapne jo Supreme Court judgment di hai wo Angrezi me likhi hui hai’. It is true that Supreme Court judgments are written in English and it is highly possible that a judge may be more comfortable in Hindi but if you are a Sessions judge, you’ll have to know English if you have to read Supreme Court judgments. That burden cannot be discharged by me. That the judiciary has to see when they are appointing the judges or maybe the Supreme Court needs to get a translation system in place. That would be very welcome. That case is stuck where it is. We again went back to the Supreme Court. Finally got an order in July, one and a half months ago, saying, ‘Expedite all trials as they are being monitored by the District Judge’.
It’s a very, very difficult experience. Every time I went, perhaps for the first time in my life I took state protection. I informed the National Commission of Minorities. They would ask the local police to accompany my car. I was very sure and we were told this in so many words while I was coming out of the court. The mother of one of the accused said to me that it’s very commonplace for people to be fired at in court. It’s not new. You can go through the newspaper records but people are killed, witnesses are killed over there. If a woman will depose, she will get killed. If a lawyer will appear, apart from facing the wrath of all the lawyers, who first look at you as a namoona, so everybody comes to see who is this woman from Delhi, you deal with that and then they are very rough with you during arguments.
Only two women had deposed in that court. After they had been turned hostile, they said in Court ‘We were gangraped. I do not remember who those men were. I can no longer identify them’. One of them gave this evidence in December of 2015. In September 2015 and October 2015, on the judicial record is her affidavit and my application begging the court to record her evidence. On two dates she and I went to court. Both dates we begged the court, we moved applications, said there is threat, said she is under pressure, she will not be able to withstand the pressure. There are two cases. In one of the cases, they moved an application saying, where the accused were on bail, all the three accused have got viral fever today. There is no medical, all three getting viral fever together, I told the judge ‘Surely you will not believe this’. He smiled at me, ‘Madam aapko to pata hai kaise hota hai’.
The other woman, in which case the men are in custody, suddenly they said- charges are framed, we are at prosecution evidence- we don’t have a lawyer. I said ‘That’s not possible. The record shows they have a lawyer. How did the charges get framed?’ They said ‘We want to engage separate lawyers’. The court did not listen to me. Therefore I filed applications so there is at least a record. The court granted them 15 days. They came back after 15 days saying, ‘The lawyer we want is asking for a very high fee. So now you have to gives us fifteen more days’. The judge gave them one more month. The third month the woman did not get in touch with me. I learned from the judicial record that her evidence has been taken. She has not named anybody.
This is while the contempt petition of 2014 has got decided by the Supreme Court in 2016 July. Now they have asked for expediting the cases where in two cases acquittals have taken place. In one of them I have moved the Allahabad High Court for transfer. That woman is determined to give evidence. Another of those women died in childbirth last month.
So when we talk of delay and what happens and who is responsible, every element of the system including the courts know what will happen. There is enough documentation and evidence before every court in this country to know that this delay will favour the accused, the women will not be able to do this. Of course there is also money trading hands. Courts know that. They allow it to happen
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