In an online discussion organised by Act Now for Harmony and Democracy (ANHAD) and National Alliance for People’s Movement (NAPM) on Tuesday, the Supreme Court’s decision to not monitor the probe into the allegations of sexual harassment against Brij Bhushan Sharan Singh and the events surrounding the wrestlers’ protest were discussed among other things.
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DOES the State’s action since seven wrestlers accused Wrestling Federation of India (WFI) president and Bharatiya Janata Party (BJP) member of Parliament (MP) Brij Bhushan Sharan Singh of sexual harassment inspire confidence?
An online discussion held Tuesday deliberated on the questions of accountability of the State and its institutions, including the courts. It was attended by Justice Madan B. Lokur, former judge of the Supreme Court of India and presently a judge at the Supreme Court of Fiji, senior advocates Vrinda Grover and Shahrukh Alam, and senior journalist Bhasha Singh.
The session, ‘The Wrestlers’ Struggle: Accountability of Institutions’ was organised by Act Now for Harmony and Democracy (ANHAD) and National Alliance for People’s Movement (NAPM) and was moderated by social activist Anjali Bhardwaj.
JUSTICE LOKUR
Taking the audience through the case’s history, Justice Lokur noted various incidents that indicate the predilection of the State in dealing with the protesting wrestlers.
Among these incidents is the decision to not make the report submitted by the oversight committee constituted to probe the charges against Singh public.
On January 20, taking cognisance of the allegations of sexual harassment, the Indian Olympic Association (IOA) formed a seven-member committee, headed by boxer and former member of Rajya Sabha M.C. Mary Kom, to probe the charges.
“What does that report say? Nobody knows,” Justice Lokur lamented. “If it is in favour of the wrestlers, redact their names and make it public. Since this has not been done, we should proceed on the presumption that the report went against (Singh).”
Justice Lokur also noted that the first information reports (FIRs) against Singh were only filed after the wrestler-complainants approached the Supreme Court seeking the court’s direction to the Delhi police on the matter.
On April 28, two FIRs were registered against Singh on charges relating to sexual harassment, assault, stalking and aggravated assault on a minor. Merely two days before that, the Delhi Police had informed the court that a preliminary enquiry might be needed before registering an FIR into the allegations of sexual harassment (a fact noted by Grover later during the online meeting).
The changed stance of the Delhi police was not elaborated upon by Solicitor General of India Tushar Mehta on April 28 in the Supreme Court. Instead, he had told the court, “The moment we found that there is a cognisable offence (committed by Singh), we took a decision that an FIR will have to be registered.”
Justice Lokur also noted that an affidavit filed before the Supreme Court detailed the threat perception of the wrestler-complainants and the court had recognised the threat as well in directing the deputy commissioner of police, New Delhi to undertake a threat perception assessment of the alleged minor victim.
It was clarified by the court that the direction on security to the alleged minor victim “shall not stand in the way” of undertaking similar assessment for the other alleged victims. Security was thereafter provided to all seven complainants by the Delhi police.
“(But) the Supreme Court should’ve monitored the probe (against Singh) so that nothing goes wrong,” Justice Lokur said, adding that the court has previously monitored investigations, such as in the coal block allocation case.
On May 4, the Supreme Court had closed the proceedings before it stating that the purpose of the petition had been fulfilled with the registration of two FIRs against Singh. Senior advocate Narender Hooda, appearing for three of the complainants, had raised an objection to the closing of proceedings.
“Keeping in view the conduct of Delhi Police from April 21 till date,” he requested the court to have the probe monitored by a retired Supreme Court or high court judge “because I am sure, without any confusion, that the moment these proceedings are disposed of, the Delhi Police will drag its feet.”
Referring to the FIRs lodged against protesting wrestlers and their allies on May 28, the day on which the new Parliament was inaugurated, Justice Lokur said, “Theoretically, the people who had come to the Supreme Court as victims of crime are being told ‘You are now the criminals’. Look at the turn of events. ”
Charges relating to rioting and unlawful assembly, among other things, were invoked against dozens of protestors, through an FIR registered at the Parliament Street police station.
In a meeting with Union sports minister Anurag Thakur, the wrestlers were assured that cases against them would be withdrawn, Olympic bronze medallist freestyle wrestlers Bajrang Punia and Sakshi Malik had conveyed to the media after the meeting.
Also in that meeting, Thakur had urged wrestlers and their allies to pause their protest, assuring them that a chargesheet would be filed against Singh by June 15. “How did he come to know when the chargesheet will be filed?” Justice Lokur wondered. “Only the investigating officer can make that statement. Nobody else. This indicates that something is happening behind the scenes.”
“The minor complainant was interrogated for 4.5 hours … one of the complainants was taken to the WFI office for crime reconstruction… What else is re-victimisation of the victim?” he said, adding that the Supreme Court has in the past warned against re-victimisation of victims.
While news agency Press Trust of India reported that she was taken to Singh’s official residence, the Delhi police has contested this contention and claimed that she was taken to the WFI office.
The scene of the crime is not the WFI office, Justice Lokur said, “The scene of the crime is the person (on whom the alleged sexual assault took place)”.
“Witnesses have been threatened,” he said, referring to the altered stance of the alleged minor victim in a fresh statement where she claims she was discriminated against by Singh, but not sexually assaulted.
The minor’s father has admitted that the family had been threatened and was living in fear.
“I was threatened by people, whose names I can’t reveal,” he had told The Hindu.
“It is quite obvious that the police don’t want the allegations to proceed. They don’t want the investigation to proceed,” Justice Lokur said.
VRINDA GROVER
“What we are witnessing is a culture of impunity. This is not incidental, but by design. To not allow access to justice against people who are in power or close to it,” said Grover while taking the discussion further.
Article 14 guarantees equality before the law and equal protection of the law. “If that is dislodged, as we are seeing in this case … that culture of impunity gets embedded in the system,” Grover said, adding, “That is why it is important to understand sexual harassment in the way we understand abuse of power.”
In the context of closing of proceedings by the Supreme Court, Grover asked, “What is the foundation that our system is based on? It is based on a presumption that the State will act as an impartial arbiter, particularly in criminal investigations,” which is why the State takes over the task of prosecution on the filing of a criminal complaint, she added.
“The experience from the last few decades does not substantiate (that the State functions impartially). So it does not help to believe in assumptions that no longer hold true, particularly for marginalised groups. Therefore, the formal legality with which the courts function is not going to provide justice to the people. Courts will have to recognise the true nature of the State (today).”
On the lack of an internal complaints committee (ICC) duly constituted under the Prevention of Sexual Harassment Act (PoSH), 2013, Grover said, “The WFI is a State-run institution under the ministry of sports. Did the ministry never bother to see that there is no ICC? The State is in breach of its own law. I did not see the National Commission of Women (NCW) jump in and ensure this, which is their job.”
Grover urged Indian courts, particularly constitutional courts, to see “that the State is using its agency to subvert and undermine the rule of law.”
“What were the wrestlers doing? They were protesting. They were exercising their freedom to assemble, guaranteed under Article 19,” Grover said, adding further, “On each occasion that people have gathered to exercise this right, they have been turned into criminals,” referring, among other instances, to the criminal charges filed against protesting wrestlers on May 28.
“There is a signalling of State power, in which the police is playing a front role (as if to say) ‘No freedom of assembly can be exercised, not even in a designated place (such as Jantar Mantar in Delhi)’. No court is acting with alacrity to protect that freedom, (because) even without these freedoms, the farce of electoral democracy can continue.”
Noting that the wrestler-complaints have given detailed accounts of sexual harassment by Singh in their statements recorded under Section 164 (Recording of statement or confession) of the Criminal Procedure Code, 1973 (CrPC), Grover explained that actual physical contact is not a sine qua non of sexual harassment under Section 354A (Sexual harassment) of the Indian Penal Code, 1860 (IPC).
Unwelcome and explicit sexual overtures, a demand or request for sexual favours, showing pornography against consent and making sexually coloured remarks also constitute sexual harassment.
On the delay exercised by the Delhi police in filing the FIRs against Singh, Grover pointed out that “the police has no option but to register an FIR,” as per the Supreme Court’s judgment in Lalita Kumari versus State of Uttar Pradesh & Ors (2013).
Grover also noted non-registration of a complaint alleging the commission of a cognisable offence under certain sections by a police officer is punishable under Section 166A. This provision prescribes a minimum punishment of six months of rigorous imprisonment that is extendable up to two years, in addition to fine.
“I filed a right to information (RTI) application seeking details of public servants prosecuted under this provision. Unsurprisingly, they claimed they have no information,” Grover said.
Grover alleged that Singh’s acts of holding public meetings and disclosing his intent to contest the 2024 Lok Sabha elections are actions that seek to intimidate the wrestler-complainants. “It is brazen and blatant abuse of power,” Grover said.
Echoing Justice Lokur on the point that the scene of the crime being the person who has alleged sexual harassment, Grover said of wrestler-complainants, “You are the evidence,” adding that the Supreme Court has previously held that the sole testimony of a victim, if found credible, is sufficient to hold an accused guilty.
“The Delhi police’s unwillingness to act in this case will have a chilling effect on women across the country,” she concluded.
SHAHRUKH ALAM
At the outset, Alam admitted that she is usually against arresting accused persons, “but here I am, demanding (Singh’s) arrest.”
She wouldn’t have been asking for his arrest “had the State had not bowed down to him. Had there been an unbiased investigation. Had he been stripped off all positions of power. Had the wrestlers not been stopped from mobilising. Had the minor been dealt with sensitivity. Had there been no ‘recreation’ of the offence. Had there not been a collapse of rule of law.”
Agreeing with Justice Lokur, Alam said that the Supreme Court should have monitored the probe against Singh. “While courts cannot order (an undertrial) person’s arrest, they can call out manifest arbitrariness or procedural irregularities,” Alam added.
In Alam’s view, courts sometimes “consciously back out… They do not protect dissenters… When the police stop a protest, it doesn’t come with legal authority, it only comes with the station house officer’s mohar (stamp).”
“The State uses different kinds of violence against protesters. It may take the form of police violence or social pressures or the filing of criminal charges,” Alam said.
BHASHA SINGH
“The media knows this is a politically sensitive case and is therefore treading with extreme caution,” Singh said during the discussion.
According to her, the narrative being spun by mainstream media constitutes three parts:
First, sow doubts about the source of money for the protest by wrestlers and their allies, as it did during the farmers protest of 2020–21.
Second, air the possibility that some ‘rajniti’ (politics) is being played with covert objectives and members of Opposition, “possibly the Haryana unit of the Indian National Congress,” are behind the protest.
Third, to discredit the wrestlers’ manner of protest, with questions such as ‘Why did they have to hit the streets?’ and on their decision to throw their medals into River Ganga in Haridwar (later revoked) to which some in the media alleged, ‘Medal to desh ke hein. Inke thodi hein’ (Medals belong to the country, not to the athlete), Bhasha Singh said.
However, according to Bhasha Singh, the mainstream media cannot fully ignore the issue because the protestor-complainants here are “Hindu betis” (Hindu daughters), unlike during the anti-Citizenship Amendment Act protests of 2019–20.
In her view, fake or manufactured narratives “originate from ANI,” referring to the news agency Asia News International (ANI).
“ANI reported that the minor had withdrawn her complaint and it was reported by others. Meanwhile, the Delhi police first issued a clarification on Twitter that only a new statement has been recorded but they deleted it later,” Bhasha Singh said, imputing that Brij Bhushan Singh might have benefitted from the unverified ANI story.
The present case is a test for Indian democracy, she opined. “They have shown that only by wrestling on the streets, democracy can be saved.”
