Supreme Court sets exemplary precedents in Birbhum gang-rape judgement

On 22 July 2009, Ved Pal Maun, armed with an order from the Punjab and Haryana High Court, was on his way to bring back his wife, who had been forcibly separated from him on the orders of a khap panchayat in Haryana's Jind district. He was waylaid by some members of the khap, and hacked to death. Pal wasn’t travelling alone – he had a police escort and a High Court warrant officer accompanying him. Still, he had to die. When Manoj and Babli were butchered in 2010, the High Court was scathing in its criticism of the police’s inaction. 

It is trite that the murderous vigilantism of khap panchayats and other such extra-legal bodies cannot be carried out without political patronage and the government’s inaction. In fact, in 2011, the Supreme Court had directed action against the administration and law enforcement machinery for failing in their duty. 

However, the Supreme Court’s March 24 judgement in the Birbhum gang rape case takes a giant stride of a precedent because it shows what needs to be done when the government machinery not only protects, but is in cahoots with the culprits. It is worthwhile to note that such actions are governed more by the courts’ concern for justice than lack of trust in the state and police. Most important of all, the court pinned liability on the state for the privations of the victim. This is exemplary because more often than not, such cases get dragged into a political quagmire, and the government evades responsibility by taking recourse to a host of specious arguments. 

Just to recap, on January 23, a 20-year-old woman was gang-raped by thirteen men on the orders of a shalishi (a Bengali word of Persian origin, meaning mediation or arbitration) adalat, sparked outrage in the media and elsewhere, prompting the Supreme Court to take suo motu notice and direct the West Bengal government to take concrete action against all those who were involved. This step was critical, because more often than not, the victims’ cries go unheard until it is too late to carry out a proper investigation.

It is important not to conflate the Birbhum incident with similar actions by khap panchayats elsewhere in the country. Because, unlike the khaps which operate with tacit political patronage, the shalishi adalats stand on stronger footing. In 2004 the CPI (M) government had introduced the West Bengal Block Level Pre-Litigation Conciliation Board Bill (better known as the Shalishi Bill), ostensibly to make quick, cheap and easy justice available to villagers in civil disputes. The real reason was to stack these conciliation boards with party members at the local level in order to retain control over villagers’ votes. The Trinamool Congress (TMC) and the Congress had lodged a strong protest due to which the bill was stalled, but the change in the ruling political dispensation did nothing to alter the situation, for obvious reasons. 

A careful reading of the judgement brings out the government’s connivance in sharp contrast. It was as if the police investigation, from the very beginning, was designed to make the case fall flat in court. Three instances stand out. 

First, the person who lodged the FIR lacked minimum credibility and could not explain how he came to be present at the scene of the crime. Second, only the provisions of rape had been invoked, while those of grievous hurt, illegal confinement, criminal intimidation were ignored. Given the fact that in such cases of gang-rape where eyewitnesses are always, invariably intimidated into silence or turn hostile, and an onslaught is launched on the victim’s credibility, this would have ensured that the culprits would walk free if the rape charges could not be sufficiently substantiated. 

To further the agenda, the deputy superintendent of police had re-recorded the victim’s statements on two occasions and that too, in gist. It was a clear ploy to sneak in possible contradictions in testimony during cross-examination in court. And as we all know, in criminal law, conviction is based only if the charges are proved beyond reasonable doubt, so such contradictions usually ensure an acquittal is within easy reach. Most glaring was the discrepancy in the names of the accused, which was exposed only because of the court’s vigilance. 

Therefore, the significance of directing a magisterial inquiry couldn’t be more. A regular police investigation would have surely resulted in zero convictions. And it was this magistrate’s report, along with that of the amicus curiae (an independent lawyer assisting the court as a “friend”), which established how the police had meticulously colluded with the guilty. 

Another important precedent is set by how the court ordered that the victim be not only adequately compensated, but also suitably rehabilitated. When it has become de rigueur to just dole out a standard paltry amount as compensation, in this case the court made sure that not only was the compensation amount increased from a measly Rs 50,000 to a good Rs 5 lakh, but a comprehensive rehabilitation package was also made available. This included provisions for housing and enrolment in various social security schemes, as well as a job. 

While the issue of the khap panchayats and similar bodies’ legality is still under consideration before the Supreme Court, the present judgement would ensure that henceforth, every state government would think twice before allowing such crimes to be perpetrated with impunity, not to mention treating the victims with utter disdain.

Saurav teaches Media Law & Jurisprudence in Mumbai and Pune. Follow him on twitter @SauravDatta29.