“Na tho sachchayi ke liye ladnewala rahega, na insaaf maangnewala. Reh jayega tho sirf tareeq!“
Remember the classic Sunny Deol rant from Damini?
January 3, 2013: Chief Justice of the Supreme Court Altamis Kabir declares that the Kerala High Court will hear afresh the Suryanelli rape case of 1996. Hearings will begin in three weeks, he says.
A little over three weeks later: Justice TR Ramachandran Nair of the Kerala High Court, heading a special bench constituted to hear cases relating to crimes against women, recuses himself from fresh hearings of the Suryanelli rape case on the grounds that he had earlier appeared as defense counsel for one of the accused. He could have recused himself the same day the SC order was passed. Or the next. Or the next. By the expedient of waiting for the day of the hearing to declare his recusal, the system buys three weeks.
February 25, 2013 (A little over three more weeks later): A new bench comprising Justices KT Shankaran and ML Joseph Francis are scheduled to begin hearing bail pleas filed by 9 of the 35 accused. The judges say the appeals filed by the accused, and related paperwork, has not yet arrived from the Supreme Court. The hearing is postponed to March 4.
March 4, 2013 (One week later): The bench comprising Justices KT Shankaran and ML Joseph Francis say the appeals filed by the accused, and related paperwork, has not yet arrived from the Supreme Court. The hearing is now postponed to March 15.
Seriously? In this age of instant communications, this gives ‘snail-mail’ a whole other meaning. (And do note that all this pertains only to the hearing of bail pleas of 9 of the 35 accused. There will be pleas from the others, the snail mail syndrome will strike again, dates will be announced — and we haven’t even gotten down to hearing the rape case itself).
William Gladstone’s ‘Justice delayed is justice denied’ is often used in such contexts, but a far more nuanced statement on the responsibilities of the legal system is that of former Chief Justice of the United States Supreme Court Warren Burger:
“A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society:
that people come to believe that inefficiency and delay will drain even a just judgment of its value;
that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching;
From the time of Cicero, advocates have been asking this question, whenever justice miscarries:
Cui bono? To whose benefit?
The second and third weeks of February showed an unusual amount of activity on the margins of the Suryanelli case. Congress spokesperson PC Chacko made a statement in Kerala that the “party will decide on the demand for Kurien’s dismissal”. Less than a day later, another Congress spokesperson, Sandip Dikshit, made an ‘official statement’ that what Chacko, his fellow spokesperson, had said was ‘his personal opinion’.
On February 14, PJ Kurien met with Sonia Gandhi and with Rajya Sabha chairman Hamid Ansari, among others, to plead his innocence. He then wrote a letter addressed to the members of the Upper House, exonerating himself. On February 26, Minister for Parliamentary Affairs Kamal Nath, no less, took it on himself and his government to defend PJ Kurien in the Rajya Sabha.
Elsewhere, the demonization of the victim began. Judge Basant, one of two High Court judges (the other, Ghafoor, is now dead) who overturned the Special Court judgment and dismissed charges against all but one accused, said the Suryanelli rape victim was a child prostitute, and hence ‘rape’ did not apply. (Taking his strictures about the then 16 year old at face value, forcible sex with even a prostitute is rape, or did they change the laws on that? Apparently the judge believes that if you are a ‘prostitute’, even by external determination and not necessarily because of your own actions, then the question of consent is moot — a mindset that flies in the face of all established canons of law.)
Congress Member of Parliament from Kannur K Sudhakaran went one better, dropping the ‘child’ and stating flat out that the girl was a prostitute. Period.
By way of aside, “Read our judgment”, Basant kept repeating. You (the media) haven’t read the judgment, and are simply making comments, he alleged.
Okay. Here’s the judgment, in full. (And yes, some of us do read.)
Here is what the Supreme Court — which, as even Basant will have to concede, did read his judgment — had to say about it while asking for the case to be heard again.
And here is what a practicing Supreme Court attorney, who read both the judgment and the SC comment, had to say:
“On the issue of consent, this is where this egregious judgment went most wrong: they took one sessions case, found consent, then imputed that consent to the other 35 accused in the case. The SC is pretty clear on this and it is the basis on which they sent it back to the HC.”
Turns out the judgment is not as Kevlar-coated as Basant would have us believe.
So, as I was saying before I interrupted myself, the first half of February saw a flurry of activity: On the part of Kurien, who defended himself against anyone who would listen and many who would not; on the part of the Congress at both state and central levels, who pushed back against any suggestion that Kurien’s actions merited some investigation; on the part of individuals and collectives who launched attacks on the victim.
And it didn’t end with statements. We had the Kerala government telling the court that the victim’s complaint against PJ Kurien is ‘legally unsustainable’ (Isn’t the legality of a case a matter for courts to determine?). How did the government know? It sought “legal opinion” — from who, is left unsaid.
On March 2 (two days before announcing the latest postponement), the court took the government’s advice to heart and ruled that there was no basis to reinvestigate the case against Kurien. Why? Because The Director General of Prosecution T Asif Ali said so in a report. Where did the matters set out in the report come from? From the government. Where did the government get it from? From “legal opinion” it “solicited”. From who? Wouldn’t you like to know?!
So why this sudden flurry of activity on the part of all concerned? What was the trigger?
This: early in the second week of February Dharmarajan, main accused in the Suryanelli case, ‘surfaced’. And told a TV channel that he had personally driven PJ Kurien to the guest house where the victim was lodged at the time.
And lo — a sandstorm of activity erupts.
Hark back a moment: how was Kurien’s name first implicated in the rape? Back in 1996, when the story broke and the police began investigating, the victim noticed a photograph in a local newspaper, and identified the central figure in that photograph as one of the many who had raped her.
She did not “drag” Kurien into the case to settle some political vendetta. She picked out his image, of her own volition, because she recognized him, and gave the police the date, and the venue. The police at the time “deemed” that there was no sufficient evidence to even investigate Kurien’s possible role in the serial rape. Kurien himself stated that he had not been to that guest house, and had never met the victim.
And so to Dharmarajan, who states otherwise. (Within days the Kerala police, who till then had shown little interest in the absconder, manage to “nab” him and bring him back to the state).
An accusation that has been often levied is that there was, back in the early 2000s, a concerted effort to make the Suryanelli case go away, because politically connected people were involved. Everyone, up to and including Judge Basant, has vociferously denied the charge. So — a quick recap:
In September 2000, a Special Court set up in Kerala handed down prison terms to 35 accused in the Suryanelli case. The main accused, Dharmarajan, was absconding at the time. He was subsequently arrested; in 2002, he was sentenced to life in prison.
Just two weeks later, the High Court let all of the accused out on bail, while reducing Dharmarajan’s sentence from life to five years (plus fine of Rs 50,000). Dharmarajan appealed even this reduced sentence. This man — who, remember, was earlier absconding when the case in chief was being tried and would thus, by elementary logic, qualify as a flight risk — accepted the court’s munificence and jumped bail again. He has been ‘absconding’ for all of 12 years with nary a yip from anyone. And thus the prime source of information about who was involved and who was not went into the deep freeze.
He has now re-emerged, for reasons best known to him. Spoken his piece. Promptly gotten “nabbed”. And is now in captivity — which among other things guarantees that he won’t go shooting his mouth off on any more TV channels.
Meanwhile: The Kerala government says there is ‘no fresh evidence’. Kamal Nath says there is no ‘fresh evidence’. The DG of Prosecution says there is no fresh evidence. The court says there is no fresh evidence. Oh, and Kurien says, wait for this, there is no evidence at all, fresh or stale.
The victim identified him out from a photograph and provided details of date, time, and venue. Now, the accused in chief comes forward and corroborates the victim’s statement.
Sounds to me like there is prima facie reason to investigate — how does it strike you?
But the Kerala government, having “sought legal opinion”, believes there is no reason to investigate. The Kerala police believes there is no reason to investigate. The Kerala High Court believes there is nothing to investigate. And Kurien — against whom there is “nothing to investigate” — continues to plead his innocence from charges that don’t officially exist.
It is not my contention that the man is guilty. But surely the victim deserves — and it is sad that we have to say this sixteen years after the crime — a proper, thorough investigation against all whom she accused?
What was it Warren Burger said?
that people come to believe the law – in the larger sense – cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets