In a decade that has been rife with calls for justice for survivors of rape crimes and strong laws against sexual offences, the arrest of a survivor of gangrape from Araria district in Bihar has shocked the country. What will it take for the justice system to view survivors and support persons sensitively?
A 22-year-old working woman stays with her family in Araria, a small town in Bihar. She wants to learn to ride a motorbike. She is befriended by someone who volunteers to help her learn to ride a bike. On the evening of July 6, he tells her to come for her riding lessons. She refuses because it will be dark soon, but he insists. He teaches her at an open school ground. She insists that it is getting late and he agrees to drop her home.
But instead, he takes her to an unknown deserted place where other men abduct her on their motorcycle. She screams for help, but the ‘friend’ leaves on his bike. The abductors take her near a riverbank and gang-rape her. She is injured, bleeding, in shock, and unable to deal with what she has just undergone. She is not sure of what her family and neighbours will say. She does not want to go back home in this condition.
She reaches out to the people where she works who support her in every step of the way. The FIR is registered the next day and she is taken for a medical examination. But the procedure is not completed and so she is called again the next day.
She is made to repeatedly narrate her experience to numerous police personnel and relive the entire incident over and over again. There is a constant insistence for her father to be present everywhere, even though she does not want to involve her family.
During the course of the investigation, her identity is revealed to the parents of the accused who was teaching her to ride the bike. Except for him, no one else has been taken into custody. The parents of the accused keep trying to settle the case and insist that she should just agree to marry the accused.
“The parents of the accused keep trying to settle the case and insist that she should just agree to marry the accused. “
On the fourth day from the date of the crime, she is asked to report to the police station so that she can be taken for the recording of her S. 164 CrPC statement. A statement that usually makes or breaks a case of this nature. A statement that stands at a much higher footing than any other statement made till date. Yet, no mental health checkup is conducted to even faintly determine if the survivor is in a condition to make this statement to the Magistrate.
Especially in a case of rape and sexual assault, a S 164 statement is usually recorded after the survivor has had time to regain her composure and is in a comparatively better frame of health, both physically and mentally, than at the time when the FIR was registered and the statement before the police was recorded.
The woman with her support persons reaches the thana and sees that the accused and his parents are also at the police station. The survivor is extremely traumatized by the prospect of being in the same vicinity as the accused. The Investigating Officer arrives and, along with other police personnel, asks the survivor to accompany her on foot to the court complex.
They reach the court complex and she is taken to the staff room of the concerned court and not directly to the Magistrate. The court staff asks the survivor to narrate the incident and she starts explaining again. However, one of the support persons enquires about the necessity for this process before the court staff, instead of the Magistrate as the survivor is already under considerable strain.
“She feels traumatized and in this fragile mental condition, is called in for recording her statement.”
The survivor is asked to wait in the corridor. There are no chairs or fans. She stands in the corridor for close to two hours waiting in the same corridor where the accused and his parents are also present. She feels traumatized and in this fragile mental condition, is called in for recording her statement.
There is a commotion and from outside the support persons can hear that the survivor is speaking loudly. The survivor then suddenly comes out of the chamber of the Magistrate and screams at the support persons saying why were they not there when she needed them the most. The Magistrate also asks one of the support persons to come into his chamber.
The atmosphere is tense. The support person understands that the survivor was unable to understand the statement that was being read out to her by the Magistrate. She refused to sign it without understanding and was asking consistently for her ‘didi’ to be present in the room with her. There is a lot of commotion and so the second support person also goes into the chamber.
“She refused to sign it without understanding and was asking consistently for her ‘didi’ to be present in the room with her.”
From here, there are disputed versions about the exact turn of events.
Conclusively we know that on the instructions of the Magistrate, the court staff called the police and sent the rape survivor with her two support persons to jail. An FIR has been registered against them for contempt of court and for obstructing a public servant from doing his work.
They were produced the next day before the Chief Judicial Magistrate and remanded to judicial custody for 14 days.
Over a week has passed since a rape survivor and her two support persons were sent to jail. The survivor was granted bail by the Chief Judicial Magistrate yesterday. However, her two support persons are still in jail. Bail has been applied for, but due to an upsurge in COVID-19 cases, the lockdown has been intensified and so there appears to be no clarity on when the matter will be heard.
It will soon be two weeks since she was gang-raped. The identity of the rape survivor has been revealed in the local press.
This is not a scene from some new crime thriller premised in the Hindi heartland and available on a streaming platform. This is a real incident. In spite of numerous judgments clearly laying down the manner in which a survivor of rape and sexual assault is to be dealt with, more often than not, the process of seeking justice itself is akin to punishment for her.
The criminal justice system continues to deal with the survivor as a problem, an inconvenience that has to be dealt with. And in frustration when she breaks down, she is required to be straightened out, because really, how dare she?
“And in frustration when she breaks down, she is required to be straightened out, because really, how dare she?”
So that the record reflects clearly, I am not for a moment condoning any act which may have been done by the survivor and or her support persons which may have appeared to be in disregard of the position which a magistrate occupies. The concern here really is about the excessive use of the power that this position has.
It is not common that during court proceedings tempers sometimes flare up and regrettable things are said and done by lawyers, litigants, and others. In most cases, the person in contempt is asked to sit in a corner of the courtroom in the custody of the naib court until things calm down. If tempers continue to flare, then the Judge adjourns the proceeding while recording the said conduct. If the matter is being heard in a chamber, the parties are usually escorted out by the police personnel.
It is rare to launch criminal proceedings and remand the litigant into judicial custody.
There has been huge outrage, shock, and uproar that has been expressed from various quarters by lawyers, activists, and organisations from across the country. However, criminal proceedings have been initiated and they will have to be dealt with as per law.
A case of this nature underlines the fact that the criminal justice system is not prepared to deal with survivors of sexual violence and expects them to fit their mould of what a victim should do and how she should behave. Any deviation from that is reprimanded or goes to reflect in the dispensation of justice.
Questions on her character will be asked by the police investigating the case. Her every act, after the offence was committed to her will be judged. The temperament of the survivor while making a statement will be referred to during trial and questions pointing to her complicity in the crime will be asked during evidence and the fact that one of the accused was ready to marry her will be a mitigating circumstance while deciding the case.
(Anubha Rastogi is lawyer practising in Mumbai)