A three-judge Bench of the Supreme Court led by the Chief Justice of India Dr D.Y. Chandrachud and also comprising Justices J.B. Pardiwala and Manoj Mishra heard petitioners and applicants highlighting the complicity of the police in sexual violence against women in Manipur.
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ON Monday, the Supreme Court of India continued hearing the matter of the gruesome incident of sexual violence against two Kuki-Zo women in Manipur, who were paraded naked by a mob.
A three-judge Bench led by the Chief Justice of India Dr D.Y. Chandrachud and also comprising Justices J.B. Pardiwala and Manoj Mishra examined a series of petitions and intervention applications on the constitution of a special investigation team (SIT) and other high-powered commissions to facilitate justice for the sexual assault and violence committed against women in Manipur.
The gruesome incident of sexual assault against two women reportedly took place on May 4 in the Kangpokpi district but came to light only on July 19, after the video began to be widely circulated.
On July 20, the three-Bench judge of the Supreme Court had taken suo moto cognisance of the horrific visuals.
The Bench had directed the Union home secretary and the secretary for the state of Manipur to file affidavits detailing the immediate steps— remedial, rehabilitative and preventive.
On May 20, the Bench had also termed the visuals a "gross constitutional violation and infraction of human rights" which is "simply unacceptable in a constitutional democracy".
On July 27, the Union home ministry filed an affidavit informing the Supreme Court that it had accepted the Manipur government's recommendation for an investigation by the Central Bureau of Investigation (CBI) into the incident.
The ministry also requested the court to transfer the entire case, including the trial of the offence in question, outside Manipur.
On Monday, the CJI remarked that the instance of sexual violence as seen in the video is not an isolated incident. He expressed the need to formulate a broad mechanism to oversee violence against women in Manipur.
The Bench heard senior advocate Kapil Sibal, representing the two women who are victims of the sexual assault seen in the horrific video.
Sibal alleged that the Manipur state police corroborated with the perpetrators of the violence. Sibal submitted that according to the statements of the two victims recorded by the police under Section 161 (examination of witnesses by police) of the Code of Criminal Procedure (CrPC), 1973, they were turned over to the mob by the police.
Sibal apprised the court that the father and brother of the victims have been killed and the families do not have the whereabouts of the bodies.
He emphasised that while a 'zero' first information report (FIR) was filed on May 18, the complaint was transferred to the police station of appropriate jurisdiction only after the court took suo moto cognisance of the matter on July 20.
A 'zero' FIR refers to registration of a complaint in respect of an offence that is committed in the jurisdiction of another police station. The complaint is then transferred to the appropriate police station for investigation. The concept was introduced by the Justice Verma Committee, headed by Justice J.S. Verma, following the Nirbhaya gang rape in 2012.
Sibal stressed the need to constitute an independent agency in which victims of sexual violence have confidence.
Senior advocate Indira Jaising argued an intervention application (IA) filed by Mahua Moitra, member of Lok Sabha from the Krishnanagar constituency in West Bengal.
Jaising informed the court that while 5,995 FIRs have been filed in the state, there is no disaggregation of the reports as per cases of murder, arson, sexual violence and other such offences.
The application highlights that since the suo moto cognisance of the sexual assault incident by the court, gross acts of sexual violence against women belonging to the Kuki community have come to light. It submits that some of the victims of sexual violence have narrated the harrowing sexual violence on record.
The IA argued by Jaising prays the court to constitute a high-powered fact-finding commission and an SIT to investigate instances of sexual violence against women in Manipur.
Considering that the incident occurred on May 4 and an FIR was lodged on May 18 but the investigation was conducted only after Orders were passed by the court, the application alleged that law enforcement agencies "inspire no confidence in the affected community".
Jaising submitted that the victims of sexual violence are terrorised and traumatised, hence the composition of a non-partisan committee that comprises women members of civil society can facilitate the victims to talk about the assaults they may have faced.
According to Jaising, since victims cannot be expected to delve into details of sexual violence to an investigation committee, devising a high-powered committee that has access to local committees is vital.
She stressed that such a preliminary inquiry by a high-powered committee, preceding the investigation by SIT, will look into sexual violence committed against any or all women, irrespective of the community to which they belong.
Jaising also raised concerns about recording the statements of the victims. She particularly sought the court's direction in recording statements of the victims in an environment that is conducive and that can instil confidence in them.
Senior advocate Colin Gonsalves, on behalf of the petitioners, reiterated the need for the constitution of an SIT without any political influence. He highlighted the need to also ensure that the Manipur cadre is not a part of the SIT.
Gonsalves contended that action should be taken not only against the perpetrators of the sexual violence committed against women in Manipur but also against the higher-up organisations that operate in a "collective and coordinated fashion" in committing such crimes.
As also contended by Sibal and Jaising, Gonsalves opposed the Union government's proposal to transfer the investigation to the CBI and to transfer the entire matter outside the state.
Gonsalves claimed that the Kuki community has access to local magistrates within the state, and it will entail a threat to their safety to travel outside Manipur for trial and other purposes in relation to the cases.
Advocate Shobha Gupta, appearing for the organisation We The Women, reiterated the need to ensure confidence-building measures through the constitution of an independent team.
Gupta submitted that the team should transfer the statements of the victims to the police, dispensing with the need for the victim to visit police statements. She also submitted that the statements of victims under Section 164 (recording of confessions and statements) of the CrPC should be parallelly recorded in relief camps.
Highlighting the need for rehabilitation and ensuring the safe passage of the displaced persons to their homes, Gupta emphasised that the displaced have been placed in relief camps for a period of three months now.
Gupta stressed the need for ensuring that the victims of sexual violence have access to legal aid through the National Legal Services Authority.
Senior advocate Vrinda Grover, appearing for the organisation Women in Governance, apprised the Bench that certain members of the organisation visited 163 relief camps in Manipur.
Grover claimed that while an FIR is lodged against several incidents of sexual violence against women in Manipur, no further steps, including investigation and arresting the perpetrators, are taken.
She narrated the incident of the alleged gang rape and murder of two Kuki women, who worked in a car wash facility in Imphal, by a mob on May 4.
According to Grover, in many such incidents of gang rape against women, no steps are taken by the police beyond filing a zero FIR.
Grover raised the contention that Manipur is witnessing targeted sexual violence against the women of the Kuki community.
She averred that the offence falls under Section 376(2)(g) of the Indian Penal Code (committing rape during communal and sectarian violence) and under The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
In addition, Grover also submitted the need for constituting an SIT monitored by the Supreme Court, the appointment of nodal officers to provide information on the whereabouts of the missing to the relatives, affordable medical attention within the state for women and provision of ration in relief camps, amongst others.
Advocate Nizam Pasha, appearing on behalf of the petitioner Zomi Students Federation, presented the Bench with instances of 14 cases alleging sexual violence against women in Manipur, where in five instances, FIRs are yet to be filed.
Pasha submitted that the local police have been complicit in such cases of sexual violence either by acts of omission or commission by abstaining from taking action against perpetrators, handing over the victims to the mob, or being the perpetrators in some cases.
On the steps that can be taken to ensure justice for the victims, Pasha highlighted the gross inadequacy of one-stop centres, constituted under the Nirbhaya scheme, to deal with sexual violence in Manipur. He stated the need to strengthen the one-stop centres with labour forces and infrastructure.
Pasha also contended that compensation should be given to victims at the stage of recording their statements under Section 164 of the CrPC, and not after the outcome of the trial.
The Bench declined to entertain a petition seeking an investigation into the alleged "narco-terrorism" and poppy cultivation in the Northeast. The petition also prayed for an independent probe by an SIT for investigating the ongoing violence fueled by a certain group of "immigrants".
The CJI noted that the petition proceeds on the ground that "one community" in Manipur is guilty of violence. On the ground of "amorphous" prayers set out in the petition, the Bench allowed the withdrawal of the petition with the liberty to file revised prayers.
Advocate Bansuri Swaraj appealed to the court to take cognisance of sexual violence committed against women in other parts of India. She specifically referred to similar incidents of sexual assault in West Bengal, Chhattisgarh, Rajasthan and Kerala.
Remarking that violence against women is a social reality in India, the CJI stated that the incidents of sexual assault in Manipur are unique since it is caused due communal and sectarian strife.
Addressing Swaraj, the CJI noted that the incidents in Manipur cannot be excused on the ground that similar offences are being committed in other parts of the country.
"Are you saying protect all daughters of India or don't protect anyone?" he asked.
Attorney General of India R. Venkataramani and Solicitor General of India Tushar Mehta, appearing for the Union and Manipur governments, averred the need for the investigation to be transferred to the CBI to ensure a "neutral investigation".
On the plea of the petitioners to constitute an SIT, Venkataramani submitted that the State cannot be excluded from the investigations and should have a role.
'What were the police doing?'
After hearing the petitioners, the CJI posed a series of questions to Mehta.
On the police action in respect of the sexual violence seen in the gruesome video circulated on social media and other platforms, the CJI questioned, "What is the reason for police taking 14 days to register a zero FIR [after the incident occurred on May 4]?"
In the context of the police transferring the FIR to the police station of appropriate territorial jurisdiction only on July 20, the CJI further inquired, "What were the police doing from May 18 to July 21?"
The CJI clarified that there cannot be any justification for the police not to register an FIR immediately.
The Bench raised concerns over the facts of violence reported widely across national media and the statements of the victims saying they were handed over to the mob by the police. Such instances indicate systematic acts committed in the context of sectarian violence, the CJI noted.
Remarking that the "violence [in Manipur] goes [on] unabated", the CJI observed the need to take steps for the restoration of trust in the administration.
Further, noting that "time is running out for us" as three months have passed since the violence started in the state, the court also raised serious concerns about vital evidence being washed away and the non-availability of witnesses to give testimonies, particularly in cases where victims have been gang raped and killed.
The CJI also remarked on the need to rebuild lives and secure faith in constitutional values by issuing directions on various modalities, including the reassurance of a court-appointed committee. The Bench directed the government to reply to the proposal of constituting a high-powered committee.
In conclusion, the court directed the government to furnish replies to its queries— the categorisation of the 6,000-odd FIRs lodged in the state into various categories such as rape, murder, arson, bodily harm and burning of homes; the number of zero FIRs that have been filed and the number of FIRs transferred to the police stations of territorial jurisdiction.
The court further inquired about the actions taken by the police in furtherance of such FIRs; the number of perpetrators arrested in respect of the violence and lodged in judicial custody; whether victims of sexual violence are being provided with legal aid; and the number of statements recorded under Section 164 of the CrPC so far.
The Bench directed the Union and state governments to file their replies to the queries by tomorrow.