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Making of a High Profile, Shakti Mills Rape Trial #Vaw #Justice

rapepublic1

The Shakti Mills trial of Mumbai, as the court cases relating to the two gang rapes in 2013 came to be known, led to the accused being sentenced to death. This is an account by the members of a survivor support project who supported the two young women at the centre of these cases. It offers insights into the prosecution’s strategy, the police investigations and the grit and spirit of the two young women and their respective mothers, and how the survivor’s socio-economic profile often dictates not only how she is treated but even the outcome of the case.

The authors ([email protected]) are part of the survivor support project of the Majlis Legal Centre.

The gang rape of a 22-year-old in broad daylight in August 2013 tarnished Mumbai’s image as India’s safest city for women. The historic significance of this case was that it was the first “high profile” one after the amendment to the rape laws in April 2013 Criminal Law (Amendment) Act, following the brutal gang rape and murder in Delhi, on 16 December 2012.

The trial in the August gang rape in Mumbai is known as the “Shakti Mills rape trial” and constitutes trials of two different cases, connected by the scene of the crime. There were five accused in both the cases, one among them a minor in each case but not the same minor. The first case is popularly referred to as the case of the “photojournalist” (called Simran here), the second the case of the “telephone operator” (called Suman here), a misnomer given to a IX-Standard school dropout who had barely turned 19 at the time of the incident. Both are children of single mothers.

We were closely involved in the process as part of our survivor support programme, Rahat, a collaborative venture with the Department of Women and Child Welfare, Maharashtra, and the Mumbai police. It is within this context that we have analysed the manner in which these high profile cases unfold, and examined our role as support persons in opposition to the “prosecution”.

Simran, a young intern at a prestigious magazine, decided to accompany her colleague Arvind1 on an assignment to photograph old and dilapidated structures, and the two ventured into the decrepit mill compound at Mahalaxmi (central Mumbai) in the early evening to capture the structure in the golden sunset hour. What followed has been reported widely.

Without going into the gory details, suffice it to say that the assault on the photojournalist included vaginal, anal and oral penetration and the showing of pornographic clips and forcing her to perform accordingly. As she confided in us later, all Simran could think of during the entire horrific episode was that she wanted to live, she did not want to die in the process. A clear defiance of the patriarchal notion that “rape is worse than death” and that women prefer to die rather than get raped. After each of the boys had given vent to the wildest sexual perversions they could fathom, they cleaned themselves on her socks or dupatta leaving behind ample evidence for the forensic experts to nail them. While escorting her out of the mill compound they warned the two against mentioning anything to anyone and even boasted of their “high level contacts”. A bleeding Simran was taken to the nearby Jaslok Hospital after Arvind informed a colleague in the magazine’s office.

Simran also called her mother to the hospital but did not divulge further details. Even in her wildest nightmares, Simran’s mother Mona could not have imagined that her daughter had been brutally gang-raped. The news of the gang rape spread like wildfire within the journalistic grapevine and television camera crews reached the hospital even before the police van could. Simran was soon shifted to a VVIP suite with security, to facilitate visits by dignitaries – the chief minister, the home minister, the police commissioner and several others. A bewildered Mona had to cope first with the gang rape, then the VVIP treatment and the constant hounding by the media. The government’s announcement that it would pay the hospital bills was a relief.

Media Frenzy

The incident was reported in great detail in the media. When her residential address was revealed, reporters landed there to find out whether the neighbours and the security guards “knew” that a resident had been gang-raped. Others wrote about how that fateful day also happened to be her mother’s birthday. Mona was terrified that her colleagues and friends would connect her to the incident. A young woman journalist even climbed 14 floors of the hospital through the external skirting, risking life and limb to photograph the victim. Sketches of the accused were splashed in almost all the newspapers along with the reports. Within a week, the five boys were arrested. The newspapers and television channels trained their cameras on the slum colony where they lived. The ailing grandparents, poverty stricken mothers and the frail wife with infants of one of the accused were all hounded and photographed. Even young children were not spared. The photograph of a 12-year-old boy, a school dropout who used to be in the company of the accused often (they were his mentors) and who became the first informant was published without bothering about the risk to his safety.2 One of the accused was found to be a juvenile and once again (as in the coverage of the Delhi gang rape), television anchors demanded lowering of the age of juveniles involved in serious crimes.

The Investigations

The Mumbai police reeling under a barrage of negative media coverage left no stone unturned and the investigation was handed over to the crime branch. A high profile public prosecutor, known for the death penalties he has secured in cases involving terrorists, was appointed overriding the high court directive that public prosecutors in rape cases must be women. Every minute detail about the investigations was handed out to the media.

The investigations were meticulous. The victim’s statement was detailed and graphic, the test identification parades were done as per the rule book, the medical and forensic reports were detailed and in record time, the statements of doctors, forensic experts, the constables, the panchas (witnesses), and other technical witnesses, were all in order. An elaborate charge sheet of 600 pages was prepared and filed within a month and the charges framed.

Concerns for the Survivor

Despite the case’s high-profile status, the additional burden of the media intrusion and the offensive high-profile investigations, the focus continued to be on conviction with hardly any concern about the victim. Support to the survivor was conspicuously absent. The same pattern that we have noticed in most of the other cases we have handled was apparent here too.

Mona informed us that Simran was coping well; the treatment in the hospital was excellent, the police were cooperative and very helpful, her office had been very supportive, and they had arranged for her to go through counselling. So then, why did she want to meet us?

The trial was approaching and they were nervous. They did not know what lay ahead. There was no one to answer their questions and quell their anxiety. The police were telling them what to do next, but no one was answering the “why”. Being an alert and confident girl, Simran wanted to know why she was being asked to do the things that she was asked to do and how they were important for the case. They were also apprehensive that a male prosecutor had been appointed and Simran had misgivings about discussing the intimate details of the perverse sexual acts with him. A sensitive and caring approach to a rape survivor was what was missing.

An Ideal Survivor

When she walked into our office, Simran could have passed for a junior lawyer. Her interest in clothes, accessories, shopping, movies, etc, were like those of any of our young colleagues. For the first time we had an educated girl, who was eager to go over the technicalities, keen to complete her case and move on and not wallow in guilt or shame. Here was an ideal survivor. However, she confided that she felt lost in the face of the legalities, and wanted us to guide her. The three things that disturbed her most were:

(1) The threat to her privacy. She was perturbed that her name, address, phone number and personal details were in the charge sheet. She was also disturbed at the way some reporters and state officials had projected her character.

(2) Test identification parade. She had to give a graphic account of the sexual act of each accused in the presence of seven other dummies. She had to do this five times over. At the end of it, she felt sick.

(3) She wanted her new phone instrument which was a gift from her mother and which was in police custody, returned. It had some valuable photographs. She was perturbed that these would be damaged while in police custody.

When we asked for the papers, the Joint Commissioner, Crimes was happy to know that we would be involved with the case, and shared with us the charge sheet. When we went through it we realised there were graphic descriptions of the sexual act. There were statements that could be punctured during the cross examination by an astute criminal lawyer. Her testimony could be shred to pieces, in case she faltered and the carefully manicured case could just collapse.

Initially, when we contacted the public prosecutor, he boasted that he is a “one man army” and did not need any help. However, when he tried to ask Simran to repeat the sexual acts he was too embarrassed, and Simran could not grasp what he was trying to convey. Finally, even he had to acknowledge the need for a support person.

Second Case Revealed

To make this case truly historic a prop was needed, so that a provision in the amended law which warranted the extreme death penalty for repeat offenders could be invoked. The crime branch issued a public statement requesting those who had met with a similar fate inside the mill compound to come forward and assured them complete confidentiality.

The second case came to light almost accidentally. The incident had occurred a month prior to the brutality against Simran. While on her way to the Mahalakshmi temple, Suman had been gang-raped in a similar way and her testimony bears an uncanny resemblance to Simran’s. After the gruesome gang rape, Suman too was issued a similar warning against reporting it to anyone.

Suman was in excruciating pain as she had suffered internal injuries, her clothes were torn and she could not find her undergarments and dupatta. So Kaushik her boyfriend, who was accompanying her purchased a T-shirt from a vendor outside the station. Like Simran, Suman too was protective towards her mother, and was worried how the latter would be able to cope. She did not want to return home. Kaushik suggested that they go away for some time. When she reluctantly agreed, Kaushik borrowed some money from a friend and went to a small village in Chhattisgarh where they stayed at his friend’s place and returned after a month. When Suman did not return home, the worried mother filed a “missing” complaint. Though Suman informed her mother about her whereabouts the next day, the complaint could not be “closed” until she appeared personally before the police. So when Suman returned on 2 September 2013, her mother took her to the police station. As the female police officer started probing the reason for her disappearance, Suman started crying. She disclosed that she had been gang-raped and described the location. By now the Shakti Mills compound had become notoriously well known. So the officer made the necessary connection. The first information report (FIR) was registered in the early hours of 3 September 2013 (2 am) itself (even though no woman should be retained at a police station at night). She was then sent to the N M Joshi Marg police station for identification of the scene of the crime.

This second case did not receive the same attention from the media or support from the state. While Simran’s medical bills at a private hospital amounting to lakhs of rupees were paid by the state in order to make the case “high profile”, Suman was examined at the J J Hospital where routine vaginal tests were conducted, though one month had lapsed since the incident, including the “two finger test”. Incidentally these tests have been banned through a protocol drafted by a committee constituted under the Public Health Department, headed by the senior doctor of this very hospital! On the other hand, no treatment was provided nor paid for, despite the fact that Suman was still in pain and was also in an acute depression.

Suman was called daily to the crime branch office and had to travel nearly two hours from her residence to record her statement. Her mother missed work as she did not want Suman to travel alone due to her fragile health. This had financial implications as the mother who works as a security guard had to miss work. Noticing her poor health, the crime branch officials asked us to intervene and extend our support to Suman. She needed medical care and counselling and was nervous about meeting the public prosecutor, so we accompanied her on those days. The public prosecutor’s tone while addressing her was different, less patient and laced with irritation and disrespect which was rather jarring, as compared to his behaviour in the Simran case.

The Two Trials

As the date for Simran’s deposition was nearing, media frenzy reached a crescendo. Simran was anxious that everything should go well. She would now come to our office nearly every day to go over her statement or just to chat. We requested the police commissioner to seek permission to record her evidence through video conferencing (as had been done in the Spanish rape case, earlier), but he left the decision to the public prosecutor. The latter who enjoys the high pitched courtroom drama did not heed our request. Finally, we had to push hard for additional security. We ensured that Simran entered through a back entrance that was not well known. She was in a burqa, along with 10 other women constables also in burqa, to conceal her identity, while hordes of cameras lined up at the main entrance.

Simran answered the questions raised by defence lawyers with quiet composure, reassured by our presence in court. The judge was very helpful and stopped irrelevant, derogatory and humiliating questions. (For example, when did she get her last periods, and when she replied that she did not know, the comments that followed were “what sort of a girl is she who does not keep track of her own monthly periods?”.)

She identified the accused sitting across the court hall at the rear end, with their heads bent, except the most brutal one, who glared at her throughout her deposition. The only time she lost her composure was when she was asked to identify the pornographic video clips shown to her while she was being raped. She asked for a short break to regain her composure. In her absence, the public prosecutor sought an adjournment, and she had to return the next day. Outside the court, the public prosecutor held a media briefing and gave all the details of the “in camera” trial and stated that she had fainted during her deposition, and hence the matter had to be adjourned. This sensational story became front page news. The next day, after her deposition, Simran went back to her office which was an indication that she was trying hard to move on and was not letting this incident weigh her down. Thereafter, we kept Simran abreast with the progress in her case, as well as the campaign issues that we had flagged, based on her experience.

Suman’s trial was less high profile as compared to Simran’s. There was hardly any media coverage. The day before Suman’s deposition, the public prosecutor informed her that she could beat the accused in court if she desired. We were unnerved to hear this. He even looked at her footwear and said it is too flimsy and asked the crime branch to purchase a new pair with a thick sole for the desired impact. Next morning before entering the court, Suman was asked to wear them and the public prosecutor reminded her of the “plan”.

Suman’s mother deposed first. Though illiterate, she is a woman of the world, confident and capable of dealing with the challenges of life. She had singlehandedly raised three daughters. Initially, a bit nervous within the formidable court atmosphere, she settled down soon enough and answered the questions with composure. At the end, she asked the judge to mete out the severest punishment to the accused and show them no leniency.

Suman was next. Her hands were trembling and she had a headache, but she did not want to ask for an adjournment. The piercing gaze of one of the accused disturbed her. So, the judge asked for a plank to be placed to block the direct gaze, which the public prosecutor had failed to bring to the notice of the judge earlier. Towards the end of her deposition, she appeared unsure about the “plan”. When it was time for her to identify the accused, she hesitantly told the judge that she wanted to beat them up. The judge smiled at her indulgently and explained that it was not possible but that the law would take its course. The public prosecutor looked away sheepishly. Later, he announced to the waiting media that the girl was so overwhelmed with grief that she wanted to hit the accused with her chappals from the witness box!

Judgment Day

The marathon trials were concluded in record time, within six months from the date they were committed to the sessions court. In the first case, the prosecution examined 44 witnesses while the second had 31. Apart from the usual and technical witnesses, employees from the mobile phone companies were also summoned to prove call records.

For us, it was a reversal of roles considering our usual cases. Here there was a high profile public prosecutor pitted against inexperienced defence lawyers since the accused lacked the resources to engage the services of astute criminal lawyers. The thrust of the cross examination was along conventional lines and was clichéd. The girls might have indulged in sex with their male companions and then in order to cover up had put the blame on the accused, the accused were shown to the victims in advance and their sketches were published in newspapers. Hence, the test identification parade was a sham, the property discovered by the investigation team at the scene of the crime may have been planted by the police to nail the accused, and so on.

One could have said that it was a watertight case or that the public prosecutor was brilliant. Strangely, it was neither. It was just that the scales were unevenly balanced. The defence failed to ask questions about even the most glaring lapses. During the final arguments, while the public prosecutor quoted John Salmond (a doyen of English jurisprudence) the defence lawyers were struggling to find the right words to make their points.

Finally the day of the judgment arrived. The hall was packed with reporters who were waiting anxiously, albeit for a foregone conclusion. They had already keyed in the words, “convicted” on their cell phones, and were waiting to press the “send” button. At this juncture, the carefully crafted game plan of the prosecution rolled out.

The judgments were pronounced within minutes of each other. Though Simran’s FIR and charge sheet were filed earlier in time, Suman’s judgment was pronounced first. The four accused were held guilty. Then the four accused in Simran’s case were held guilty. Our lawyer messaged the girls before they watched the news on television since it was their case after all and they had a right to know first.

On the following day, the judge read out the sentence in Suman’s case. It was the maximum punishment that can be awarded for gang rape under the new amendment: life imprisonment for the remainder of their natural lives.3

At this point, the PP submitted an application to add a charge under Section 376E of the Indian Penal Code (IPC) in Simran’s case. There was a flutter in the courtroom. What was 376E? The defence tried to put up a feeble resistance that new charges could not be added at this late stage after the verdict had been pronounced. The judge merely asked them to submit their reply to the application. The dice had already been cast in favour of the death penalty, since the judge had already awarded the maximum permissible under the section rather than the minimum which in itself was harsh – 20 years.4 The progression from here could only be the death penalty.5

Over the next 10 days, Section 376E became the topic of conversation everywhere. Advocates, human rights activists, journalists and the general public all had an opinion. Since it was a new section added by the 2013 amendment and had been invoked for the first time, there was no precedent. Can a verdict of “guilty” pronounced a few minutes earlier, render the accused “repeat offenders” warranting the death penalty? If the second case had not come to light during the trial of the first, the court would have had to stop at life imprisonment.

Since the verdict of death penalty was preordained, the rest was a mere formality. It became a matter of time before the dreaded verdict would be pronounced. The defence tried to postpone this moment, but these turned out to be mere histrionics which only served to annoy the judge.

The worst moment of this entire trial was when the impoverished and illiterate mothers of the accused stepped into the witness box to plead “mitigating circumstances” to ward off the death penalty. The reporters crowded round the witness box demeaning the sanctimony of a court about to deliver the harshest punishment in the statute books. Their poverty, sickness and lack of opportunity were on full display as the “state” cross examined them. (The “state” of course was beyond culpability for its own neglect to provide basic necessities of life to its citizens.)

Survivors, Not Victims

For the final arguments, the public prosecutor showed records of the accused who had earlier been a juvenile offender of a petty crime to prove “serial criminality”, which is strictly prohibited by the Juvenile Justice Act. At the final moment, for impact, he advanced the most conventional and sexist argument: rape is a state worse than death. These comments were far removed from the reality of the lives of the two girls, who possessed great survival instincts due to which they had survived the attacks and had courageously withstood the criminal trial despite the media onslaught. They were well on their way from being “victims” to “survivors”.

On the other hand, the public prosecutor who was pleading for the death penalty on the ground that they had been scarred for life and would never recover from the “vegetative state” they had been reduced to, had not even bothered to inform them about the verdict. They had obviously been relegated to the background. The state’s own concern for retributive justice and the city’s desire to salvage its pride became the prime concern.

Finally, it was time for the dreaded verdict to be pronounced. The judge held that the accused had used the most potent weapon of all, their male organ. They had violated the canons of human behaviour and tenets of human dignity, sanctity of human life and individual dignity. Class, poverty, young age, dependents – none of these were considered to be “mitigating circumstances”. The judge relied upon two recent judgments – the Kasab case and the Delhi gang rape case (the victims had died in both). Coming soon after the Delhi gang rape case, the judge declared that the incident had shocked the collective conscience of the society, which justified the death penalty. There was no possibility or hope of reform. The accused had to be hanged.

The city rejoiced. Justice had been done! While most countries were retracting from awarding the death penalty, we were moving in the reverse direction.

The irony is that while throughout the trial, we were the support persons the girls relied on, at the time of the judgment the talk shows on television pitted us against the public prosecutor and the police. It almost seemed as if they were speaking for the victims while we were speaking in support of the accused!

Glaring Contrasts

In order to highlight the different standards adopted while investigating a “high profile” case and “ordinary” cases where young girls from impoverished backgrounds are involved, we shall discuss another judgment delivered around the same time, which concerned a 13-year-old from a poverty stricken background, brutally raped by four middle-class men of a similar age group. The girl’s mother is a domestic maid, her father an alcoholic. Though the case was reported in the media, it did not become a high profile one. The collective conscience of the city was not pricked.

She was raped at a house party, to which she was taken by her 16-year-old friend. It was so brutal that the girl had to be hospitalised for six days. At the shelter home where she was placed for care and protection, she was assaulted by this older girl who was an accomplice and was placed there as a juvenile offender. The girl continued to be in a state of extreme trauma and depression for several days after the incident, a fact brought before the court by the counsellor of the shelter home who had interviewed her nearly three weeks after the incident.

The investigations were full of loopholes. There was delay in arresting the accused and in seizing objects from the scene of crime. The bedsheet had semen stains of all the four accused, but the judge held that this could not be connected to the victim as the vaginal swabs did not have any semen stains despite the fact that the girl had suffered injuries due to the sexual assault. The test identification parade could not withstand judicial scrutiny. An independent witness faltered in identifying the right accused. A local non-governmental organisation (NGO) which had initially met the child on the very next day of the incident, failed to provide the necessary long-term support beyond the first meeting.

It is not surprising that the child turned “hostile”.

While the three accused in the Shakti Mills were given the death penalty, this case resulted in acquittal.6 The accused are now roaming free in the same area. In all probability, her alcoholic father may have “compromised” with the accused and the investigating team may have facilitated this process. It was a case where everyone concerned – the family, her friend, as well as the other stakeholders – the police, the judge, and the civil society group, seemed to have let her down.

Notes

1 Names of all important witnesses have also been changed.

2 The fact that the state had failed to provide him basic education despite the mandate of free and compulsory education, and the only place he was being “groomed” for adult life was in the company of these lumpen elements, did not seem to bother anyone. Neither state nor civil society expressed any remorse, nor held themselves in any way responsible for this sorry state of affairs.

3 Prior to this, the maximum, life imprisonment, was for 14 years, the amendment raised the minimum to 20 years and the maximum or the remainder of the entire life for gang rape.

4 Section 376D – Gang Rape: Where a woman is raped by two or more persons constituting a group or acting in furtherance of a common intention, then each person is said to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean, imprisonment for the remainder of that person’s natural life and with fine.

5 Section 376E – Punishment for Repeat Offenders: Whoever has been previously convicted of an offence under sections 376, 376A or 376D and is subsequently convicted of any offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life or with death.

6 Case decided by the Special Court under the Protection of Children from Sexual Offences Act, 2012, at Sessions Court, Fort, Mumbai on 1 April 2014.

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Muzaffarnagar Riots — Clutching at FIRs

Published: June 25, 2014 12:30 IST | Updated: June 23, 2014 15:05 IST

The victims of the Muzaffarnagar riots still live in abysmal conditions in relief camps with no hope of justice or rehabilitation. By AJOY ASHIRWAD MAHAPRASHASTA IN Shamli

TWO powerful dust storms this summer left in tatters Anisha Begum’s tent—thin tarpaulin sheets borne by two weak bamboo sticks. It had been her residence ever since she and her family were forced out of their village, Phugana, after riots broke out between Hindus and Muslims in Muzaffarnagar, Uttar Pradesh, last September.

With two young children to take care of in the absence of her husband who is working somewhere in the south of India, the 26-year-old is braving 40-plus °Celsius. The heat is the last thing on her mind. “I can bear the heat but not my fears,” said Anisha while she searched for a bunch of papers amid a heap of dirty clothes. The papers, as it emerged, were three copies of the first information report (FIR) she had filed at her village police station accusing some lumpen elements in her village of vandalising her house.

“They robbed us, destroyed our property… they had come to kill us. We escaped empty-handed, leaving behind our cattle and jewellery at home, and took shelter at the police station where we filed this FIR,” Anisha recounted her traumatic experience of September 2013. “How will we go back home now? They know we have filed an FIR against them. They are roaming around freely in the village waiting for us to return so that they can take their revenge. We will never go back but we don’’t know where else to go,” added Anisha.

Overwhelmed by a sense of fear and insecurity about the future, Anisha derives comfort from the fact that she is not the only one to have gone through the trauma of being uprooted from her native land. With Anisha, there are thousands of Muslims from disparate backgrounds, being forced to take shelter in the relief camps that mushroomed soon after the riots in western Uttar Pradesh. And for thousands of them, as a result, even 10 months after the riots there is no choice but to stay in temporary tents since they have lost all their properties in the riots.

The FIRs that they had filed against the rioters are their most important possession now. Some also flash their Voter Identity Cards. Since September, many Islamic organisations, non-governmental organisations, government bodies and political leaders have showed up at the camps. They believe that the FIRs or identity cards are probably the only legal documents that will establish their place of residence, and help them win some compensation to start their lives afresh. “We have lost all hope in the U.P. Police. Perhaps, people who come here from Delhi can help us,” said Saleem, a resident of Malakpur relief camp in Kairana.

There are at least 14 relief camps, some privately funded and some unfunded, in the Kairana block of Shamli district, adjacent to Muzaffarnagar. These camps are located on a piece of panchayat land in the Muslim-dominated villages of Kairana, between fields bearing the newly sown rabi crop and a 14-kilometre stretch of the Yamuna that flows along the region. Amidst the greenery, these camps come across as deserted ghost towns from a distance, but, as one goes closer, one realises that they are places where a host of people live in abysmal conditions. The camps lack proper toilet facilities, water and electricity supply, so the riot victims rely on the mercy of the villagers for their daily supplies. Severe malnourishment, along with bouts of dysentery and malaria, have become common among children in these camps. Sunstroke is something the residents have become used to.

With a Muslim population of almost 90 per cent, Kairana was the safest territory for people who were forced out of Muzaffarnagar, Shamli, Meerut, Baghpat and other districts of western Uttar Pradesh. “Where else could we have gone? We realised that if we die, we may get some land for burial here. In our own villages, our dead bodies would have been fed to animals,” said Md. Sajid.

Sajid’s comment indicates the volatile situation in Muzaffarnagar and Shamli. State government records acknowledge only nine villages (six in Muzaffarnagar and three in Shamli) as riot-affected, thereby making the residents of only these villages eligible for relief and compensation. However, the riots that occurred in these nine villages had repercussions for others too. Throughout western Uttar Pradesh, Muslims left their homes in fear. And in most cases, their fears were not misplaced.

“Our village did not see any fight but the Jats moved around with weapons in their jeeps to scare us. They openly passed snide remarks about our women and threatened to rape our sisters. Our relatives asked us to leave the village as soon as possible. Every Muslim we knew in other villages was on the run too. We too ran away in the middle of the night,” said Qayyum, a resident of Hanifa village in Meerut, who is now in Barnawi relief camp.

The riots resulted in the death of around 100 people but displaced more than a lakh. They proved to be the best way to grab land. Most of the people in the relief camps claimed that their houses had been destroyed and whatever little land they had were encroached upon. The landed people (Jats in this case) ended up with more land at their disposal after the riots. The affluent among Muslims managed to buy land in Muslim-majority areas and start their lives again. However, the poor, landless families are left with no choice but to stay in the relief camps. Western Uttar Pradesh presents an ahistorical image at present. A region in which every village had an almost equal number of Muslims and Hindus is now strictly divided along religious lines. One can easily identify every village as a Hindu village or a Muslim village. With riot victims reluctant to go back to their own villages, the demography of the region seems permanently transformed.

Sense of victimhoodThe Jats, on the other hand, are a happier lot. For the first time, they have voted out their traditional party, the Rashtritya Lok Dal, in favour of the Bharatiya Janata Party. Ajit Singh, the son of the legendary Jat leader Charan Singh, and his son Jayant Singh suffered massive losses in the recent parliamentary elections. The BJP won all the 10 constituencies in western Uttar Pradesh owing to a Hindu consolidation irrespective of caste and communities. Significantly, the results reflect the communal polarisation and the deep “Hindu sentiment” that has now crept into the area. “All these years, we voted only for Charan Singh’s party. But it did nothing of benefit to us. It fielded affluent Muslim candidates and made us transfer our votes to them. Do we not have the right to represent ourselves? The BJP was the only party that fielded Jat candidates from here, so we voted for it,” said Sonaram Baliyan, a Jat Pradhan in Muzaffarnagar.

This notion of Hindu victimhood is deeply entrenched in him, and reflects the general sentiment of the Hindus of the region. “The so-called secular parties wanted to give reservation to Muslims too. At a time when we should enjoy the benefits of reservation, they wanted to field Muslims against us,” said Baliyan. A similar thought was echoed by Amit Shah, who was in charge of the BJP’s campaign in Uttar Pradesh, at a Jat mahapanchayat in Shamli just a month before the election. When asked about the displacement of Muslims in his own village, Baliyan said that they were free to come and settle down there but added that he and his community would not tolerate their dabang (lumpen) nature any more. In the absence of Muslim agricultural workers, he has hired migrant labourers to work in his fields at a much lower wage rate, a trend that is fast becoming popular in western Uttar Pradesh.

In such a scenario, the riot victims dread the thought of going back to their villages. Western U.P villages look like ghettoes divided on religious lines. However, the riot victims fear that the State government will eventually ask them to evacuate the panchayat land on which the relief camps are located. In fact, a few residents claim that the district administration has been asking them to go back to their villages. Consequently, people are slowly moving out of the camps but not to go back to their villages but to nearby cities where they can rent a place and work. Some of them have taken to construction labour and are working in brick kilns. The camps look deserted now. Only women, children, and the elderly inhabit many camps because men have gone to cities looking for work.

Political gamesBoth the Samajwadi Party (S.P.) and the Bahujan Samaj Party (BSP) are trying to make inroads into these camps. The relief work, too, is motivated by these concerns and is even affected by political rivalry. “The State government used to send milk and medicines to the relief camps on condition that the community remain loyal to the S.P. The supplies stopped coming when the government came to know that the residents of the camp were drifting towards the BSP,” said Md. Shabbir, a resident of Malakpur camp and a supporter of the BSP. A local leader of the S.P., however, denied the allegation and told Frontline that the medicine supply was still going on but the milk supply was stopped as many residents had left the camp.

The extent of the Muzaffarnagar tragedy cannot be measured in numbers. The State government, however, has shown little imagination in addressing it. Without a proper rehabilitation policy and with poor implementation of a formulaic compensation policy, the State government has not been of much support to the riot victims. It is in this context that some Islamic charity organisations have been funding the rehabilitation of these people. In one such case, some Islamic organisations have agreed to fund construction of 300 houses, a high school, and a masjid for the riot victims in Dabherikhurd village of Kairana. A resident of the village, Haji Dilshad, has donated 27 bighas of land for this purpose. However, the district administration has stalled the construction of the houses and has asked Haji Dilshad to furnish affidavits of the allottees first. Such bureaucratic troubles, residents of Dabherikhurd say, are common when the rulers do not see any significant political gains from giving relief.

In western Uttar Pradesh, both Muslims and the Hindus traditionally identified themselves by their caste rather than their religion. However, the riots have foregrounded their religious identity like never before. Today, people are united more by religious brotherhood than anything else. The riot victims see no assurance of justice and the perpetrators fear no punishment. The political equations that have unfolded in recent times have given the Hindu majority socio-economic supremacy. If the state remains apathetic to such demographic transformation and the plight of riot victims, the problems of the people in the region may reach unimaginable proportions.

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Akshardham Judgment – The Law at Work

Vol – XLIX No. 25, June 21, 2014 | Ravi Nair 

 

The Supreme Court judgment in the Akshardham temple attack case has acquitted six innocent men who were tortured and then made to suffer imprisonment. The Supreme Court has come down hard on the investigating agencies of Gujarat and the way in which the lower judiciary has functioned in this case. The apex court must take this forward and revisit the existing prosecutions under the Prevention of Terrorism Act and examine the Unlawful Activities (Prevention) Act which incorporates many of the pota provisions.

Ravi Nair ([email protected]) is with the South Asia Human Rights Documentation Centre, New Delhi.

This article was earlier posted on EPW’s Web Exclusives Section.

Incredible India it certainly is. On the day that a majoritarian government led by luminaries who are no friends of democratic freedoms and civil liberties was voted in by one-third of the voters in the recent Lok Sabha elections, there was some cold comfort for those who would like to believe in the rule of law.

The Supreme Court in its order of 16 May struck half a blow for the rule of law when it ordered the acquittal of all the innocents framed in the Akshardham temple attack case.1 Four of the six acquitted were released after being in prison for 11 years. Three of them, Adambhai Ajmeri, Abdul Qaiyum Muftisaab Mohmed Bhai and Chand Khan were under sentence of death since July 2006. The fourth, Mohammad Salim Hanif Sheikh, was serving a life imprisonment. The fifth, Abdullamiya Yasinmiya, was on bail after having been in prison for seven years of the 10-year sentence imposed on him by the trial court. The sixth, Altaf Malek, was out after having served his five-year sentence.

The Supreme Court in its judgment expressed itself in no uncertain terms about how innocents are framed and the shoddy nature of investigations, conveying its

anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the Nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing (p 280, para 136).

It further declared,

Here, we intend to take note of the perversity in conducting this case at various stages, right from the investigation level to the granting of sanction by the state government to prosecute the accused persons under POTA, the conviction and awarding of sentence to the accused persons by the Special Court (POTA) and confirmation of the same by the High Court. We, being the apex court cannot afford to sit with folded hands when such gross violation of fundamental rights and basic human rights of the citizens of this country were presented before us… (p 261, para 131).

Falling Short

And yet the reliefs it provided to the acquitted fell far short of what it loftily claimed. There was no court order granting monetary compensation or other restitution for those who had lost 11 years of their lives for a crime they did not commit. No orders were given for the prosecution of those who had held these men in illegal police custody, concealed evidence, fabricated evidence, and committed torture. Nor were there orders against elected and other public officials for dereliction of duty.

The Supreme Court saw the process adopted by the prosecution as flawed. It held the sanction granted as “void” and illustrative of, “clear non-application of mind by the Home Minister in granting sanction” (p 109, para 77). The home portfolio was held at that time by the then chief minister of Gujarat, Narendra Damodardas Modi. His minister of state for home was a worthy by the name of Amit Shah.

The apex court even held the confessional statements obtained under torture and duress as “highly contradictory and improbable in nature” (p 255, para 125).

The Supreme Court is conscious that Parliament has placed the judiciary and the citizen in a situation that borders on the theatre of the absurd. It states,

POTA was repealed in 2004. Yet, the trials, its implementation has entailed, are continuing till date. POTA was repealed for the gross violation of human rights it caused to the accused persons due to abuse of power by the police. This is an important aspect to be kept in mind while deciding this case and hence, it was pertinent to mention this in the beginning to say that we are wary of the abuse the provisions of this Act might bring… (p 97, para 90).

The Dramatis Personae

The initial investigation was done by V R Tolia of the Crime Branch, Gandhinagar, and later by K K Patel of the Anti-Terrorist Squad (ATS). It was later taken over by G L Singhal, Assistant Commissioner of Police (ACP), Crime Branch on 28 August 2003 (p 17, para 8).On the same day Ashfaq Bhavnagri (PW-50) “was interrogated, and he revealed the entire conspiracy as well as the role of A-1 [Malek] and A-3 [Sheikh] in committing the dastardly offences” (p 58, para 41).

Singhal was accused of torture by all the defendants. All six accused

in their retraction statements, complained of having been beaten up by ACP Singhal, V D Vanar and R I Patel, because of which they could not stand up on their feet. On denying their complicity in the Akshardham attack, they were threatened of being encountered. Each accused persons said that every day they were called either by Singhal, V D Vanar or by R I Patel and were forced to admit their complicity in the Akshardham attack (p 45, para 32).

When the accused persons were produced before the Special Court (POTA) on 5 November 2003 all of them

made an oral complaint of police atrocities during the police custody and also complained of having been in police custody for long time. According to each accused person, he was made to sign the confessional statement prepared by the police under coercion and duress and had not made the same of his own free will (p 46, para 32).

The retraction statement of the accused Ajmeri Suleman Adam says it all.

Then Singhal Sahib abused me and told that should agree to what they say. I should agree that I am the criminal of Akshardham carnage. I told them that I have never gone to Akshardgam (sic) nor have I seen it. Kindly do not involve me. He immediately called five or six persons and told me to have handcuffs and fetters. Vanar Saheb beat me on soles. Shri Singhal Saheb told me that I agree with the crime of Askhardham (sic), they shall not beat me and have some benefits. Then they beat me in such a way that I became unconscious and fell down. ….When I became conscious I was near Vanar Saheb office. I suffered much difficulty. I was weeping. It was night. At that time one constable came and told me that superior sahib was calling. I had no strength to walk or stand. I was caught and taken to Vanzara Saheb office. All four officers were present there.
“They told me to agree the crime, otherwise I shall be encountered. But I did not believe.
Then they brutally beat me. There was bleeding in back portion….They gave me currents. Then I told them, sir, have mercy on me. I am not culprit. Pardon me. Please don’t make me criminal wrongly. I do not know anything in this regard. They threatened me to harass me and my family members. Even though I have not committed any crime, they wanted to agree Akshardham crime” (p 231, para 115).

Singhal, who was also an accused in the Ishrat Jehan case was reinstated in service in the last week of May. Earlier, he was enlarged on bail by the court after the Central Bureau of Investigation (CBI) failed to charge sheet him within the mandatory 90-day period. Singhal also figured prominently in the Snoopgate controversy.  Clearly, both the governments of Gujarat and India had conveniently forgotten about Article 311 of the Constitution permitting them to effect summary dismissal of the official.

Second Lead: D G Vanzara

The defence brought out the role of D G Vanzara. It stated that there was

serious doubt about the manner in which the evidence was sought to be fabricated by police officer, D G Vanzara whose entrusting of the case to the Crime Branch on 28.08.2003 suddenly resulted in feverish activity, whereupon the accused persons were arrested and their confessional statements were recorded.

Vanzara was not produced as a prosecution witness. This was not surprising as he went public with his sense of hurt at being let down by his political gods. His cross-examination, had it taken place, would have proved most interesting. The apex court is scathing about the statements of the accomplices,

we fear that the story against the accused persons and its corroboration through the statements of accomplices is an act of concoction to make up a case against them. It was recorded in the statement of [ACP Singhal] that the information regarding PW-50 was given to him by D G Vanzara. However, D G Vanzara had not even been examined in this case and there is no information as to how he came to know about [Bhavnagari] after almost a year of the attack on Akshardham. This very important aspect of the lapse in investigation had been ignored by the courts below. The learned senior counsel for the accused persons have contended that there has been a delay of around a year from the time of the attack on Akshardham in recording the statements of the accomplices which shrouds the case of the prosecution.
We have to accept the contention of the learned senior counsel for the accused persons in this regard as there is an inordinate delay in recording of the statements of the accomplices and this casts a grave suspicion on the reliability of the testimony of the accomplices (pp 182-83, para 96).

Failure of Lower Courts

The role of the lower courts was not a happy one. They failed in not considering the deposition of some brave doctors who deposed in favour of the accused pointing out that they “had complained of severe beating by the police prior to recording of the confessional statements” (p 65, para 48). As is expected in such situations the medical records such as the X-ray plates were missing from the file (p 65, para 48). It is distressing that the lower court and the high court did not take umbrage at the suppression of both evidence and documents by the prosecution.

The defence counsel in the Supreme Court drew attention to the confessional statements of the accused which “were recorded without sufficient time being given for reflection” and was thus in gross violation of the principle laid down by the apex court in a plethora of cases (p 67, para 49).

The attention of the apex court was also drawn to the failure of the lower courts,

to take into consideration the element of fear of further torture by the police, in the minds of the accused persons which was bound to be present, especially when their confessional statements were recorded by PW-78 [Sanjay Gadhvi, Deputy Commissioner of Police] in his office without them being assured of being sent to judicial custody immediately after making their statements (p 67, para 49).

The defence also drew the attention of the apex court to the fact that the confessions were retracted at the earliest available opportunity and that there had to be independent evidence corroborating the confessional statements if they had been retracted (p 71, para 51). The Supreme Court held that the evidence of the accomplices could not be used to corroborate the confessional statements of the accused persons in the absence of independent evidence. Moreover, it stated, “the delay of more than one year in recording their statements causes us to disregard their evidence” (pp 188-89, para 97).

Two letters written in Urdu were allegedly found in the trouser pockets of the alleged militants who were killed during the Akshardham attack,

the post mortem report of the fidayeens stated that all their clothes were stained with blood and mud and all clothes bore multiple tears and holes due to perforation by bullets. In such a case, the fact that the letters remained clean, without any tear, soiling or stains of blood and soil is highly unnatural and improbable… (p 204, para 103).

The Supreme Court also chided the Gujarat High Court pointing out

we cannot accept the recording of the High Court that the secret behind the crease-free unsoiled and unstained letter lies in the divine philosophy of ‘Truth is stranger than fiction ‘for this renowned epithet by the author Mark Twain comes with a caveat that says, ‘Truth is stranger than fiction. Fiction must make sense’ and rejected these letters as evidence (p 204, para 103).

It also discounted the prosecution’s contention that the car already in the possession of the Jammu and Kashmir police at the Special Operations Group camp was the car used to carry weapons from Jammu and Kashmir to Bareilly for carrying out the attack on Akshardham (p 222, para 111).

If the Akshardham judgment is to be taken forward the Supreme Court must be asked to revisit the tenability of all existing prosecutions under POTA. Moreover, its attention should be drawn to the fact that the amendments to the Unlawful Activities (Prevention) Act (UAPA) in 2008 incorporate many of the POTA provisions. Justice was served in this particular case by the extraordinary fortitude of the accused and their families and credit goes to the exemplary work of the defence lawyers in the lower court and the Supreme Court. Clearly, we rejoice in the acquittals in the Akshardham judgment by the Supreme Court but the bench, the bar and citizens need to ask for more whilst also doing more. All of us should emulate Oliver Twist and ask the courts and Parliament to please do some more.

Note

Adambhai Sulemanbhai Ajmeri & Ors Appellants vs State of Gujarat …Respondent with criminal appeal No 45 of 2011,

http://www.supremecourtofindia.nic.in/outtoday/Crl.Appeal No 2295-2296of2010.pdf

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India’s courts ‘condone’ Dalit atrocities

Saurav Datta

Caste-blind judiciary fails Dalit victims as number of sex attacks are reported against former untouchables.

Twenty two years ago, in Bhateri village in the western Indian state of Rajasthan, Bhanwari Devi was gang-raped by five men. The reason was neither lust nor just patriarchy. Devi’s fault was that as a lower-caste woman, she had dared to transgress the age old strictures of caste – by protesting against the practice of child marriage, which was a staple among the upper-castes. Hence, he was meted out a “deserving punishment”.

When the matter finally reached the court, the judge acquitted all the five rapists, holding, among a host of other reasons, that since the upper castes practised strict untouchability, it was inconceivable that any of the five would touch a lower caste woman. Till today, Devi remains deprived of justice.

Now that there is a tidal wave of opprobrium and condemnation against the gang-rapes and murder at Badaun in northern Uttar Pradesh state and the gang-rapes in Bhagana, Haryana, the next question one is confronted with is – will justice be done? And if so, how?

While investigations are still on, and arrests have been made, it is only the first step. The final outcome in the courts is all that matters, and it is here that there is cause for much alarm and disappointment. For, India’s courts have consistently failed the Dalits (untouchables) by steadfastly refusing to acknowledge that sexual violence is perpetrated because of a woman’s caste.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, commonly known as PoA Act, recognises rape and other forms of sexual violence as an “atrocity”- an aggravated offence, as opposed to the general crime of rape. The reason is that an atrocity, as philosopher Claudia Card defines it, is a “gross evil – the widespread toleration of wrongfully perpetrated intolerable harm to individuals”.

Because Dalit women’s bodies are stigmatised – they are considered expendable and justifiably available for recreational (pleasure-seeking) or punitive purposes of upper-caste men, the law seeks to bring in substantive equality by recognising the lived reality of the victims.

Therefore, it is imperative for courts to recognise that the sine qua non for the deeming rape as an atrocity under the law is that the violence was perpetrated on the ground that the victim hailed from a lower caste.

Tragically, it is here that the judicial record is one of abject failure. Not only have the judges refused to acknowledge the reality of caste, but have also attributed reasons such as “unrequited passion”, “exploration of sexuality” and let off the accused. Even if there is a conviction for rape, an acquittal from the charges of atrocity renders justice not only incomplete, but also as a travesty.

Khairlanji village in western Maharashtra state stands out as the most infamous example in recent times. On September 26, 2006, four members of Suresh Bhotmange’s (a Dalit) family were killed in the most gruesome manner. His wife and daughter were stripped, thrashed, and paraded naked through the village, before being subjected to a fiendish gang-rape.

Nothing was left….knives, iron rods, spikes of bullock cart wheels- everything was thrust in their private parts. Bhotmange’s “crime” was the police complaint that he had lodged against the upper-caste Hindus grabbing the plot of land that was rightfully his.

The autopsy was done in the shoddiest manner – no efforts were made to test for rape, even though the naked bodies of the two women lay in the village for a considerable period of time. All the accused who were arrested were convicted by the trial court of murder and other offences, but not for rape.

Worse was in store in the Bombay High Court. In its 2010 judgement, the court put down the atrocities to reasons of personal rivalry and individual revenge. Shockingly, the court went to considerable lengths to hold that because there was no evidence, no rape had been committed – completely ignoring the harsh reality – that there would be no witnesses, and that the trial court had committed a glaring omission by ignoring evident facts. If the naked and badly mangled bodies of Dalit women did not stir the court to acknowledge sexual atrocity, perhaps nothing else could have. The appeal against the high court’s judgement remains undecided till this date.

The case of Hanamath was an appeal to the Karnataka High Court against the conviction of four men for gang-raping a 15-year-old Dalit girl. The court upheld the conviction of rape because it could have done little else – all the proof – eyewitness testimony and forensic evidence were stacked against the accused. But when it came to holding the culprits guilty under the PoA Act, the court not only demonstrated its blindness to caste, but took the “boys will be boys” line of reasoning, holding that the gang-rape was “a lustful act of misguided youth”.

Leave aside convictions. How does one prove to the court that a rape was committed because the perpetrators wanted to exercise their upper caste power and pelf? There cannot be any rule of evidence, except that of social reality – that the caste system, in all its vicious manifestations, exists.

Hence, the Supreme Court’s judgement in Ramdas (2006) rankles, and rankles hard. In the dead of night, three men dragged out a young woman of the low-ranking Pardhi caste and raped her. This was after she had refused to obey their summons, belonging to a landowning upper-caste, who wanted her to satisfy their carnal desires.

Of course, they wouldn’t have had the temerity to exercise the same obnoxious power on a woman of their own, or a higher caste, but then, Dalit women are fair game!

But the court was not inclined to accept this, and held – “The mere fact that the victim happened to be a girl belonging to a scheduled (lower) caste does not attract the provisions of the (PoA) Act.”

When a judgement of the Supreme Court deals a body blow to the very foundations of the law which aims to protect, impunity will certainly continue, unabated.

Read more here- http://m.aljazeera.com/story/201461010327959421

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Rape survivors battle for justice #Vaw

Fozia Yasin,TNN | Jun 1, 2014, 06.10 AM IST

NEW DELHI: The rape and murder of the two teenage girls in Uttar Pradesh’s Badaun district last Wednesday sent shockwaves across the country, and also threw into focus four rape survivors from Bhagana village in Hisar, Haryana, who have been protesting at Jantar Mantar in the national capital since April 16. Bhagana is some 170km from New Delhi.

The survivors, aged between 13 and 18 years, belong to the landless Dhanuk sub-caste, and worked for upper caste landowners. Villagers say the khap panchayat had imposed a social boycott against the caste group, forcing about 250 families to leave their homes and flee the village.

The displaced villagers say atrocities against them began over a 280-acre piece of common village land two years ago, which the Jats tried to usurp with the help of local authorities and the khap.

According to the rape survivors, on March 23, they went to a field to relieve themselves in the evening, a routine the families follow in the absence of toilets in their homes.

Five Jat men drugged them and forced them into a car. The girls were found the next day at Bathinda railway station in Punjab, some 160 km from their village.

The youngest survivor, a 13-year-old, says she remembers a strong-smelling handkerchief being thrust on her face. Her next memory of that time is waking at the station with bruises and torn clothes. She says she also recalls the weight of the bodies of the men, on her.

The four sit silently with their parents and members of their caste group, hiding their faces with scarves.

Father of one of the survivors said he worked with his entire family of four in the farm belonging to the village sarpanch, for a sum of Rs 50,000 a year.

On March 23, when the girls did not return till late evening, a frantic search began. Villagers approached the sarpanch, who assured them that the girls would soon be found. The next morning, villagers said, the sarpanch, with two of his relatives, drove them to Batinda in Punjab.

“He told us to stay in the car. The three of them went into the station. Half an hour later, they emerged with the girls, who were in shock, hiding their faces. Later, the girls told us that he had threatened them and told them not to reveal anything to anyone. But the girls named all the accused. Next morning we went the police station and filed an FIR. The girls were sent to the hospital for tests, they were made to wait for 8-9 hours,” the father said.

In 2012, the khap panchayat had called for a social boycott of 130 Dalit families at Bhagana village, over the land dispute. Following the rape of the girls in March, 90 more families have fled the village.

“Rape is a weapon for revenge, suppression and humiliation against the lower caste. The police and administration belong to Jats in Haryana. We are treated like cattle,” said Jagdish Kajla, a member of the Bhagana Kand Sangharsh Samiti, which is spearheading the fight for justice to the four girls.

In last two months, the villagers have made representations to the Haryana CM, Bhupinder Hooda, National Human Rights Commission, the National Commission for Women and the SC/ST Commission, but have got no reprieve.

Five people have been arrested so far in this case.

Protestors demand that an FIR be lodged against the sarpanch and his relatives, and compensation be granted to the victims and their families, to enable the rehabilitation of Dalit families.

Virender Singh Baghodia of the Bhagana Kand Sangharsh Samiti said, “The Jat sarpanch knew about the gang rape, but the police is scared to touch Jats. For us, the government and the khap are just the same.”
rapepublic1

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SC acquits all six persons in 2002 Akshardham temple terror attack case #JUSTICE

Written by Utkarsh Anand | New Delhi | May 16, 2014 3:01 pm

Summary

Mohd Hanif Shaikh, Abdullamiya Yasinmiya Kadri amd two others were sentenced to jail terms varying between 10 years to life imprisonment.

 

In a major setback to the Gujarat government, the Supreme Court on Friday acquitted all six persons, including two on the death row, in the 2002 Akshardham temple terror attack case.

Allowing their appeals against the conviction and sentencing, a bench comprising Justices A K Patnaik  and V Gopala Gowda held that the prosecution failed to establish their guilt beyond reasonable doubt and they deserved exoneration from all the charges.

The bench nixed their confessional statements being invalid in law and also said that the prosecution could not establish they participated in any conspiracy.

 

It allowed the appeals of Adambhai Sulemanbhai Ajmeri and Abdul Kayum, who were given death penalty, challenging the conviction under POTA and Section 302 of Indian Penal Code.

Mohd Hanif Shaikh, Abdullamiya Yasinmiya Kadri amd two others were sentenced to jail terms varying between 10 years to life imprisonment.

The petitioners had sought to draw parallels between investigations into the alleged fake encounter killing of Sohrabuddin and that of Akshardham terror attack in which both the fidayeen were killed by NSG commandos on September 25, 2002.

The appeal by the convicts said they were arrested following investigations conducted by then deputy superintendent of police D G Vanzara, who is facing trial for the fake encounter killing of Sohrabuddin. It alleged that Gujarat government was “notorious for conducting investigations in a totally partial and unjust manner which was evident from another case monitored by the apex court — Sohrabuddin encounter case”.

In the Akshardham attack, two fidayeen sprayed bullets indiscriminately from their Ak-56 rifles and used hand grenades to kill 33 devotees and tourists and injured another 86 before being killed by NSG commandos on September 25, 2002.

Saying that there was no link between the two fidayeen and the appellants, the petition filed through counsel Anis Suhrawardy stated that his clients had been crying hoarse for an independent probe, especially by CBI, but neither the trial court nor the HC paid any attention to it.

The prosecution case alleges that a group of militants, allegedly belonging to the banned Lashkar-e-Taiba attacked the temple in Ahmedabad on September 24, 2002, killing 37 people and injuring several others.

The special POTA court found the appellants guilty and slapped death and other sentences on them. The High Court confirmed this order. The appellants said the investigation was faulty as the investigating officer had no jurisdiction to investigate the case.

The very foundation of fair trial contained under Article 21 of the Constitution was thrown to the winds by not even following the bare minimum requirements of natural justice, the convicts have contended. As many as 14 witnesses were examined without disclosing to the accused their identity. They sought to quash the impugned judgment and an interim stay of its operation.

Read mor ehere- http://indianexpress.com/article/india/india-others/supreme-court-acquits-all-six-persons-in-2002-akshardham-temple-terror-attack-case/

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Sexual violence soars in South Sudan #Vaw

South Sudan’s ongoing violence puts women at risk of sexual and gender based violence.

JUBA, 13 May 2014 (IRIN) – Sexual and gender-based violence might not be a new phenomenon in South Sudan, but the current crisis and the near absence of protection for civilians has exacerbated it, analysts say.

“We do know that it [sexual and gender-based violence] is a major issue. Even though many victims of sexual violence do not report their ordeal because of the stigma that it carries, wherever we went we met women and girls who told us that they had been raped by either government or opposition forces,” Donatella Rovera, senior crisis response adviser at Amnesty International, told IRIN.

On 8 May, Amnesty International released a report in which it documented atrocities committed against civilians, including rape and sexual violence, by the two warring parties in South Sudan’s five-month old conflict.

“The current militarized environment, where armed men are ubiquitous and civilian law enforcement is virtually absent, places women and girls at a heightened risk of sexual violence. Persistent reports of sexual violence perpetrated by both government and opposition forces strongly indicate that conflict-related sexual violence is widespread,” Amnesty International said in its report.

“We received testimonies from women and girls victims of sexual violence from all the main conflict-affected areas: Juba and areas in Unity, Jonglei and Upper Nile states,” Amnesty International’s Rovera, told IRIN.

In its report, also released on 8 May, the UN Mission in South Sudan (UNMISS) noted that the “conflict has exacerbated the vulnerability of women and children in South Sudan to sexual violence.”

In the report, UNMISS said: “All parties to the conflict have committed acts of rape and other forms of sexual violence against women of different ethnic groups. Credible information suggests that sexual violence took place in connection with the occurrence of human rights and humanitarian law violations before, during, and after heavy fighting, shelling, looting, and house searches.”

It added: “Women of nationalities of neighboring countries were also targeted. The forms of sexual violence used during the conflict include rape, sometimes with an object (guns or bullets), gang-rape, abduction and sexual slavery, and forced abortion. In some instances, women’s bodies were mutilated and, in at least one instance, women were forced to go outside of their homes naked.”

In Central Equatoria State, for instance, UNMISS reported that sexual violence increased during “the days following 15 December. At least 27 incidents were documented, of which 22 incidents were attributed to Government security forces and mainly to the SPLA [Sudan People’s Liberation Army]. These include 14 incidents of rape and gang-rape, one attempted rape and four cases of sexual slavery…

“For example, in the days following 15 December, Nuer women were stopped in a street of Juba by SPLA soldiers and taken to unknown places. They were then assigned to soldiers who repeatedly raped them. In some instances, survivors were subsequently taken as `wives’ by the soldiers. On 16 December, three girls under 18 years old were gang-raped by SPLA soldiers when they broke into their house and found them alone.”

Testimony

Monica*, a 27-year-old mother of six, lies on a bed inside a makeshift tent in a protection of civilians camp in Tomping as she recounts how she was repeatedly raped in Gudele, a densely populated area in the capital, by suspected government troops. Just a few hours after the violence began; troops loyal to the government overran parts of Juba, shooting indiscriminately at civilians, leaving many dead and thousands more injured. Monica’s 35-year-old husband was among those killed in the attacks.

“They came and kicked our door and got in and they hit us with gun butts and told us to lie down. They were asking my husband about guns but he didn’t have any. They wanted to know our ethnicity too. They raped me – each of them. I don’t know how many they were. They then killed my husband,” Monica told IRIN.

She was five months pregnant when the rape happened. Three months later, she lost her pregnancy. Monica is still too afraid to return home despite Juba experiencing some relative peace.

“I don’t want to go back now. It is scary for me what I went through. Now you can see I’m sick. I don’t how to start when I go back and I’m not sure this [the rape ordeal] will not happen again,” she said.

Photo: IRIN
Outside the camps, women are often attacked at places like water collection points or when they venture into the forests to look for firewood.

Alcohol and drug abuse

Even those sheltered in UN bases are not safe. A camp manager in Tomping anonymously told IRIN of cases where women are reportedly harassed.

“Women and girls are harassed at night. Many are even too fearful to bathe at night or go out to the toilet. Those women who are living alone are constantly harassed by young men here. It is big problem,” he said.

He added that alcohol and drug abuse had made cases of sexual harassment in the camps even worse.

“The men and boys here have nothing to do and they get alcohol. When they take alcohol or abuse other drugs, they become unruly. Husbands are abusing their wives, and girls are constantly chased in the dark. You can hear noises and screams at night.”

According to the UN Population Fund (UNFPA), an estimated 10,000 displaced women and girls who are currently living in areas which are inaccessible to aid organizations are at risk of sexual violence.

“There is need to put more attention on the protection of displaced populations. Unless this can be done, the number of women and girls facing sexual violence could increase considerably due to high insecurity and the loss of community protection mechanisms as a result of the conflict. We have reports of women and girls being raped when they go out to look for food or firewood,” Julitta Onabanjo, UNFPA regional director, told IRIN.

Aid workers told IRIN that fear to report rape within the community, and insecurity, had made it even harder to reach or treat survivors.

“It is even harder to reach those women and girls who have been raped and are living outside the camps. But here in the camp, at least we have a few trusted community volunteers who have been able to refer cases to us and we counsel and where possible, we treat survivors,” an aid worker who preferred anonymty , told IRIN from a temporary camp in Awerial County in Lakes State.

UNFPA said: “Awareness of the benefits of early reporting of rape cases is still low among community members, and often cases are reported well after the 72 hours required for administering lifesaving treatments such as antiretrovirals and emergency contraception.”

Amnesty’s Rovera said: “There are NGOs which are providing medical and psycho-social assistance to those survivors of sexual violence who are accessible, notably in the camps for displaced people in UN bases. However, only a very small percentage of those displaced by the conflict – less than 10 percent – are in the camps in UN bases. The majority are sheltering in remote rural areas, with little or no access to humanitarian assistance of any kind.”

Over one million people have so far been displaced since the conflict began. On 5 May President Salva Kiir and rebel leader Riek Machar penned a deal to cease hostilities for at least one month to allow for the evacuation of civilians caught up in the conflict.

*Not a real name

Read more — http://www.irinnews.org/report/100085/sexual-violence-soars-in-south-sudan

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Gujarat, Just Another Smelly, Dusty,Congested State

By SANJAY AUSTA

Wed Apr 16, 2014

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Has Gujarat , the most western lying Indian state finally fallen off India’s map to sit at the high table of developed nations in the West? It would seem so if you go by the frenzy that’s been whipped around what is being called the ‘Gujarat Development Model’, and the giant strides of progress that are said to be made in the state under the stewardship of its Chief Minister and Prime Minister hopeful Narendra Modi.

Luckily, I had the opportunity to make road journeys across this vibrant state twice in the last one year to see for myself and rejoice. Truth be told, at first I did feel that tug –a mixture of inferiority and expectancy – you feel when you fly to any Western country from India.

Gujarat was clearly happening from the word go. On the train I met three young men who were chucking their businesses in Delhi to begin anew in Gujarat. “There is no bureaucracy in Gujarat only lots of incentives that no other Indian state gives entrepreneurs ”, they said.

But away from the steel and glass, in an old part of Ahmedabad, where I went walking the next day, I got the same choking feeling you get in any Indian city where filth and noise overwhelms you and sweaty smelly men buffet you about in the milling crowds.

I saw familiar decrepit men sitting on their haunches in the typical Indian ‘shitting position’ – waiting patiently outside dhabas for God -fearing customers to buy them a meal just as you see them in Old Delhi.

Across from them, old beggars slept on a road divider buzzed by cheap drugs or the mid-day sun, unmindful of the screeching , chaotic traffic swirling about them.

Perhaps I was looking for shit and poking my nose purposely into smelly corners, I thought. So the next morning I headed out to check Modi’s famed highways.

The roads were indeed smooth and all but a far cry from what was ballyhooed in the press with rough patches erupting abruptly here and there threatening to spill the illegally gotten beer on my lap. (Booze is illegal in Gujarat. But thankfully the Indian jugaad works here too )

There is certainly nothing to make you feel you are on Route 66, cruising past the American hinterlands as the Indian media makes it out to be. At many intersections the lights simply don’t work and there is that usual pile up of traffic, with people honking mercilessly, waving arms and fisticuffs. You have to be alert for the sudden diversions, ambling cows or the loonies that drive on the wrong side of the road all of which keeps you well under the Indian speed limit.

Just off the highway in dusty old Wankaner town, I meet a man who achieved to greatness and prosperity despite the ‘system’. He epitomized the Gujarati entrepreneurial spirit which perhaps is the reason behind ‘Shining Gujarat’ rather than a Chief Minister who has been blowing his trumpet across India winning over every economist, journalist and jingoist that indeed he is the man who will save India.

Manshuk Lal Prajapati in Wankaner, like the majority of Indians had nothing. And he literally made everything out of it. He fashioned the good old clay into pots and pans and in less than 10 years has made a huge industry out of it. Today he distributes clay refrigerators, clay pressure cookers and sundry home appliances (all in clay) not only all across India but to many countries abroad.

But elsewhere it’s the same Indian despair and hopelessness. In Anand , known to the outside world as the hub of Amul industries is also the center of the largest baby factory in India, where poor, hapless Gujarati women come to sell their womb for a price.

“I had nothing to eat. My family and I would have had to consume poison had we not stumbled upon this clinic”, says Sita who gave her womb for rent for over 4 lakh rupees to a childless couple from Canada.

Gujarat’s record on health and nutrition is worse than the national average. Over 55 percent Gujarati women in the 15-45 age group are anemic. Modi had famously put the blame on the ‘’figure conscious’’ Gujarati girls who were refusing to have milk lest they get fat.

And as for the red-tape that Modi purportedly removed , it almost threatened to put a spanner in the works of a Nat Geo documentary for which I was travelling. Permissions granted weeks in advance had to be taken again they said at the check post at Gir. A second round of signatures had to be obtained at the district level. Which meant, spending more days running around government offices or paying the bribe. The crew thankfully decided to shoot in the non- exclusive zone at the other end of Gir National Park.

In Gujarat, pride is everything. But unfortunately it is also extended to the felines-the Asiatic Lions now found only in Gujarat. The lions are a pride of Gujarat, roared Narendra Modi refusing to share some of them with neighboring Madhya Pradesh(MP) as directed by the Supreme Court in April 2013. An epidemic can wipe them all out, warn conservationists, if lions are geographically sequestered in just one pocket in the country. But Modi would not have any of it. A local conservationist who had suggested the relocation of lions to MP had to run for his life when the Supreme Court order came and the angry Gujaratis confronted him.

Where sloppy journalists present loose street-talk as facts and get swayed by public perceptions, writers usually step in and do a course correction. But on a week long road trip in Gujarat last year with bestselling Indian writer Chetan Bhagat, I was horrified that the man who would later go back and write reams about ‘Rising Gujarat’ had probably not seen any of it at all. From the moment he landed in Ahmedabad to when he exited out of Rajkot, the author remained glued to his Blackberry looking up only when he was asked to pose for the camera.

However if you keep your eyes, ears (and nose) open, Gujarat is just another smelly, congested, dusty, inept Indian state stuck firmly to India’s side to its West.

Sanjay Austa is a journalist.

 

Read more here —

Gujarat, Just Another Smelly, Dusty,Congested State

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Shakti Mills Gangrape Case – Not in our name #Vaw #Justice

 

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.

Photo: Speedy justice for rape cases.

 

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 

http://www.asianage.com/columnists/not-our-name-971

 

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#India – Charge sheets filed in many grave crime cases, but trial yet to begin

S. VIJAY KUMAR

More than a decade ago, a differently-abled girl was allegedly raped by a youth. The deaf and dumb girl of Dharmapuri managed to give an account of the incident to her family and even identified the suspect. After 14 long years, trial is yet to commence in the case. 

Govindan (70), a Dalit of the same district, was killed and many others were injured when an armed gang unleashed violence in Veppampatti near Harur in 1998. Though the case was charge sheeted, trial has not commenced so far.

“A gang attacked us following a rivalry in local body election. My father died and many of my family members suffered grievous injuries in the attack. A couple of my relatives are yet to recover…we continue to suffer and there seems to be no hope of any justice,” says Dhanapal (42).

These are just examples among hundreds of grave crimes that are reportedly pending in lower courts even after the police laid charge sheets.

The cases were not committed to the Sessions court for “insufficient” or “missing” documents. In many cases, all the accused could not be produced in court for serving the charge sheet, a reason for trial not commencing.

An IPS officer in Tamil Nadu who came across a murder case where trial had not begun for many years went into the details and was shocked to find that it was one among 200 such cases in the district. The officer, who is Dharmapuri Superintendent of Police Asra Garg, conducted a special drive in November last year and found that 60 cases of murder, five dacoities, 30 rapes, 30 attempts to murder and ten SC/ST Act cases were among the crimes not committed to Sessions court for trial.

“We formed special teams to re-submit the documents and took steps to commit the cases to the Sessions court. The Principal District Judge was cooperative in expediting the process. For the first time, we have created a mechanism to ensure that documents don’t go missing from case files. The police now take a written acknowledgement from the courts after filing the charge sheet,” Mr. Garg said.

Similarly, a few hundreds of cases of heinous crimes are believed to be awaiting trial across the State for many reasons. In West Zone, comprising 8 districts and two commissionerates, Inspector-General of Police S. Davidson Devasirvatham says police were told to identify cases where trial had not commenced for long and take appropriate action.

Institutional connivanceAccording to Peoples Union for Civil Liberties (PUCL) president and advocate V. Suresh, there was an institutional connivance leading to delayed justice in several cases of crimes where the weakest sections of society were victims.

In some cases, the victims genuinely failed to remember the facts of the case or the suspects after so many years.

 

Read morehere – http://www.thehindu.com/news/national/tamil-nadu/cases-of-delayed-justice-pile-up-in-lower-courts/article5767596.ece

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