Truth is sadder than fiction

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;

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.”

Cui Bono?

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.

Really?

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.

Cui bono?

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

Suryanelli rape case reopened

Just how good is this news?

For nearly eight years, a woman from Kerala who was gang-raped by 42 men in 40 days has been waiting for the Supreme Court to take up  her case.

Today, the Chief Justice of India Altamas Kabir said hearings will begin within three weeks.

No, not that the poor girl had to wait eight years for the highest court in the land to find time for her, but the fact that the Supreme Court is in fact going to hear the case — for it is one that represents much that is wrong with our police and judicial systems. Here’s a quick recap, quoting from an earlier post:

Do you remember Suryanelli? The story of a 16-year-old girl who was abducted from a bus, raped by the conductor, then handed over to a couple who, over the next 40 days, transported her like a traveling circus all over Kerala and pandered her to 42 different men, all of whom raped her?

The story has an instructive coda. A Special Court was set up three years after the incident (the first time in Kerala history that such a court was set up to fast track a case of rape; it happened because of massive public protests). In September 2000, the court handed down major prison terms to 35 of the accused. Dharmarajan, an advocate and main accused, was absconding at the time; he was subsequently arrested and, in 2002, sentenced to life in prison.

All good, right? Not. Two weeks after the Special Court verdict, the Kerala High Court gave bail to all 35 accused and let them out of jail. And in 2005, the aforesaid High Court acquitted all 35. More, it deemed that Dharmarajan, the man who had along with his lady friend taken this minor girl the length and breadth of the state and facilitated her serial rape, was guilty only of the crime of “sex trade” — and sentenced to just five years and a fine of Rs 50,000. There was, the honorable judges deemed, no evidence of any “conspiracy” to commit crimes against the girl — like, you know, Dharmarajan was just sort of accidentally escorting her around Kerala, and accidentally, some things happened, too bad, so sad. Oh, and the judges also had some acerbic comments to make about the “character” of the teenager and her “motive” in filing a complaint.

That young girl — in keeping with the Joneses of the media, I’ll name her Mayoos, The Hopeless One — who, last heard from, was employed in a menial job and attempting to get on with her life, lives with the trauma of the multiple rapes she endured for over a month and the knowledge that the authorities she turned to for succor deemed that all that happened to her was somehow her own fault.

In 2005, her family filed an appeal to the Supreme Court asking for justice. Years rolled on. Early last year, in a sudden, surprising development, she was charged with embezzlement of funds and initially, suspended. When various rights groups protested, she was reinstated and transferred after securing some form of written apology. (Additional details of the case here).

The question most found baffling was this: She was a very low level staffer, in a rank where normally you don’t get to handle significant sums of money. Ergo, the accusation that she had somehow walked off with over Rs 2 lakh seemed, prima facie, to fail the smell test.

This, in tandem with the High Court verdict that completely overturned that of the special court, has created in popular perception the impression that the entire case was manipulated with the sole purpose of saving the high and politically mighty — an impression italicized by some of the comments the High Court, in its judgment, made about the then 16-year-old girl, and the downsizing of charges against the principal accused.

How much truth there is in that perception will be known soon enough when the Supreme Court begins its long overdue hearing of the case. However, that nothing is black and white, that there are layers to even seemingly straightforward stories, was underlined for me yet again when, on Twitter, I asked a couple of lawyer friends to explain the dichotomies in the case.

Here is a transcript.

Bottom-line, the wait is almost over, the case will be heard — and, given everything that is at stake, it will be a trial worth following.

The problem is apathy. Not activism.

News has four cycles.

There is, first, the child, flapping its arms and legs and yelping in excitement at having been presented with a brand new shiny object, wondering what to do with it: toss it in the air? Kick it? Try and stuff it, whole and entire, into the mouth? (Think of days one and two of the aftermath of the Delhi rape, when ‘coverage’ was a series of increasingly shrill freeform yelps without coherence or substance but with lots of lung powering it.)

Then the teen, as volubly excited but with a greater awareness of his peers. (That channel had the home minister on the griddle and called for the resignation of the police commissioner? We need to ask for someone’s resignation too. Oh and that other media house? It gave the victim a symbolic name — that’s so cool; we need to give her a name too!)

Then the adult, who has outgrown the follies of youth and cleansed his palate of the metallic aftertaste of adrenalin, and discovers maturity, and fairness, and balance. (We reported the police version and the protestors’ version, didn’t we? Huh? Didn’t we? What do you mean, which is the truth?! Duh!)

And finally renunciation wherein, having sat under the tree of knowledge and been shat on by pigeons, he slips into a zen stage and waxes philosophical. Here is the perfect example: an opinion piece by Harish Khare that at least one prominent TV host endorsed as an argument meriting serious consideration. This is the bit that gave me pause (parts italicized for emphasis; parenthetical interjections are mine):

In any fast changing society and economy, resentment and anger against an insensitive “system” is bound to find an expression; and, in our current discourse, empowered citizens are made to feel that they have a licence to defy, disobey and disrupt. A crowd is seen to be an ipso facto morally superior gathering in its collective democratic representativeness and hence is deemed to have sanction to resort to unorthodox methods of protest against presumably corrupt and crumbling power arrangements.

(Wait — these “unorthodox methods” — that would be gathering peacefully in a public space to give expression to the collective sense of helplessness, of anguish?)

And, now, when the crowd gathers there are television cameras. Our liberal sensitivities are naturally offended as powerful moving images of police lathi-charge, teargas, and water canons get beamed into our drawing rooms. No less stirring is the sight of ordinary citizens bravely standing up for this or that “cause,” demanding “justice” and insisting on instant solutions. Every story becomes a battle between good and evil. Any attempt, say, to contextualise police action is instantly put down and derided as justification of khaki high-handedness.

(How subtly pejorative is the use of the quotation marks around the word cause! So let’s spell it out: the trigger is the bestial rape of a young girl; the cause is the safety and security of each one of us, and more particularly the women among us. What do you find objectionable about that? Come to think of it, safety and security are our inalienable rights — why are we even forced to demand it?

I could at this point link to dozens of videos of young girls and young men standing still, hands at their sides, while police beat them up with rubber truncheons and lathis; the video of a girl walking the other way when a policeman grabs her by arm and hair and throws her to the ground, and so on — but those images were already ‘beamed into our living rooms’ to tickle our ‘liberal sensitivities’, so I desist. However — would anyone care to to “contextualize” this incident and to interpret it as anything other than high-handedness? Or this one, where police use live ammunition despite an express prohibition, and it ends in death?)

We seem to have arrived at a new, deeply democratic moment in our republic. There is a heady feeling in the air that we can make our “rulers” squirm, smoke them out of their comfort zones, disrupt and dispute their monopoly of defining content and substance of national aspirations and dreams, and, indeed, force them to listen to “our demands” and make concessions on our terms.

(All of this is bad, why? A “deeply democratic” moment is a bad thing in a democracy how? In what way is it preferable to let our “rulers” remain in their comfort zones? And why exactly should these rulers monopolize the “defining” of the “content and substance” of our national aspirations and dreams? Oh my goodness, what a verbal water-canon is here trained on a group of sad, anguished, outraged young people who were only asking for the right to live and study and work and go watch a movie without the ever-present risk of being mauled, groped, stripped and raped, without the risk of having iron rods stuck up their vaginas and their intestines drawn out!!)

Fair warning: what follows is apt to rub those liberal sensibilities a touch raw. That said, here is a snapshot of what else happened during the past 24 hours:

1. In the same newspaper and on the same day as the Harish Khare piece, a story was published about policemen who refused to register a case of rape for five whole days, and kept their superiors in the dark about it, despite the father of the victim repeatedly approaching them requesting that a case be filed. Related, we learn that of the thousands of rape cases registered but not followed up on, there are over 250 instances in Patna alone where the police have not even bothered to file charges. Keep in mind that (a) these figures relate to just one city and (b) that they relate only to those instances that have been reported and documented.

2. In Ghaziabad, a jailed rapist on his release attempted to kill his victim. “Leave it, friends,” the Senior Superintendent of Police is quoted as telling inquiring mediapersons.

3. In Kolkatta,  a 40-year-old differently-abled woman was sexually assaulted inside a stationary bus at a spot close to a police station. He was caught by locals and handed over to two policemen. He managed to ‘give them the slip’ (Color me cynical, but I couldn’t help thinking that ‘give them the slip’ is a nifty new way of suggesting that some currency changed hands) and fled.

4. Oh, and a two-year-old girl child died in a hospital in Panchmahal district of injuries sustained during rape. The rapist, presumably worried that the baby would fight him off, had tied her hands and legs down before raping her.

5. A district judge — a member of the ‘establishment’ that “defines the content” of our aspirations — has ruled that a wife has no right to refuse sex with her husband and if said husband forces himself on the wife sans consent, that is not rape.

That was a very short, but by no means exhaustive, tour of 24 hours in this ‘heaven of freedom’ that Tagore sang of — a heaven wherein the honorable Home Minister, mute in the immediate aftermath of horrific rape, appeared on television a week later to mourn how the unruly protestors had ‘blackened’ the image of the country. Now to pull back for a wide-angle view:

Do you remember Aruna Shanbhag?

Do you remember Kiliroor? Mathura?

How about Jalgaon? Thangjam Manorama? Anjana Mishra? Shopian?

Do you remember Suryanelli? The story of a 16-year-old girl who was abducted from a bus, raped by the conductor, then handed over to a couple who, over the next 40 days, transported her like a traveling circus all over Kerala and pandered her to 42 different men, all of whom raped her?

The story has an instructive coda. A Special Court was set up three years after the incident (the first time in Kerala history that such a court was set up to fast track a case of rape; it happened because of massive public protests). In September 2000, the court handed down major prison terms to 35 of the accused. Dharmarajan, an advocate and main accused, was absconding at the time; he was subsequently arrested and, in 2002, sentenced to life in prison.

All good, right? Not. Two weeks after the Special Court verdict, the Kerala High Court gave bail to all 35 accused and let them out of jail. And in 2005, the aforesaid High Court acquitted all 35. More, it deemed that Dharmarajan, the man who had along with his lady friend taken this minor girl the length and breadth of the state and facilitated her serial rape, was guilty only of the crime of “sex trade” — and sentenced to just five years and a fine of Rs 50,000. There was, the honorable judges deemed, no evidence of any “conspiracy” to commit crimes against the girl — like, you know, Dharmarajan was just sort of accidentally escorting her around Kerala, and accidentally, some things happened, too bad, so sad. Oh, and the judges also had some acerbic comments to make about the “character” of the teenager and her “motive” in filing a complaint.

That young girl — in keeping with the Joneses of the media, I’ll name her Mayoos, The Hopeless One — who, last heard from, was employed in a menial job and attempting to get on with her life, lives with the trauma of the multiple rapes she endured for over a month and the knowledge that the authorities she turned to for succor deemed that all that happened to her was somehow her own fault.

In passing, keep this in mind when you hear ministers speak of establishing Special Courts to try the latest atrocity. And to underline that point a touch more, here is another example of how judgments rendered by fast track courts are rendered moot by the High Courts sitting on appeal.

The point of all this?

The signal rapists have been consistently getting down the years is that there is no consequence to their actions. And these signals come from every tier of the establishment.

From the police who refuse to register cases (and are derelict in their crime prevention duties — remember that the bus the Delhi girl was raped in passed through five different check-posts manned by police while inside its darkened interior, her rapists were thrusting iron rods inside her and pulling out her intestines);

From our elected leaders, who when rape hits the headlines repeatedly suggest that the solution is for girls to not venture out after dark, to not wear “provocative clothes”, to not frequent bars, to stay within the confines of their homes (Makes you wonder — the baby whose hands and feet were tied and who was raped so brutally she died — which bar was she coming out of, and what was she wearing?);

From the judges who let convicted rapists out on bail and who say a woman does not have the absolute right to say no to sex or that a raped teen was somehow asking for it and that her plea for justice was “motivated”…

It is pervasive, this message of entitlement; it inoculates the potential rapist against the fear of consequences; it empowers him.

Do you know what happened after Suryanelli? Pandalam happened. And following a precedent that was established in Suryanelli, the sentences were suspended.

Kothamangalam happened. And the case is still wending its way through the appeals process. (One of the main accused is the minor girl’s father, by the way — so much for being safe at home.)

Thoppumpady happened.

Calicut happened, where young girls who went to an ice cream parlor were drugged, raped, videotaped, blackmailed, and raped again and again. Two of the victims subsequently committed suicide; a politician allegedly involved first resigned from the then government, then was reinstated; the case continues to wend its way through the courts and the discussion, such as it is, is not about whether the crime was committed and what the punishment should be, but about whether one political party, in power at the time, was behaving in a ‘vindictive’ fashion towards its political opposition in ordering a probe.

You know what? Our problem is not that we protest, but that we don’t protest enough.

Our problem is not activism, but apathy.

PostScript: A feature of recent days has been the tone-deaf, misogynistic nature of comments by public personalities in the wake of the rape. The latest offender: Abhijeet Mukherjee, by the grace of his father and Sonia Gandhi now a Congress MP. Here is what he said.