There has been a national outpouring of anger and outrage following the death of the 23-year-old paramedical student, who was gang raped and assaulted in a moving bus in Delhi. But what has largely been left out in the ensuing public discourse is the issue of women being raped in conflict zones like Kashmir, the Northeast and central India.
Why, for instance, is the Indian army being allowed to get away with the rape and murder of women? Why do various security forces consider themselves above the law? Why do entities entrusted with the task of protecting people, threaten instead the security of innocent women and children?
These were some of the questions raised at a recent meeting organised in Delhi by three prominent women’s organisations – Saheli, Women Against Sexual Violence and State Repression, and WinG Network of Women from the Northeast.
The unlawful face of the Indian state, normally hidden from public view, was sought to be revealed by systematic documentation and analysis. A fact-finding report on an attempted rape case by a soldier in Dolpa was one of the three reports released at this meeting.
On July 13, 2012, Lance-Naik Anil Kumar Upadhyaya of the 287 Field Regiment of the Indian Army attempted to rape a 19-year-old college student of the Mishing tribal community in C of Sibsagar district, Assam. The girl had accompanied a group of women in collecting firewood. When she screamed, her mother and other village women came to her rescue and caught Upadhyaya red-handed. A call was made to the police station, which in turn informed the local army officer, the additional superintendent of police and a magistrate.
Within an hour, all these officials as well as a few mediapersons had gathered at the village. The Commanding Officer, Col. Sharma, also arrived. The army and the police tried to pacify the people. After this Col. Sharma left the crime scene with his men, taking the accused along. The local police remained mute spectators of this high-handed behaviour.
The victim’s mother lodged a complaint at the local police station that night following which the superintendent of police and the deputy commissioner decided to be arrest the accused. In a telephonic conversation, Col. Sharma promised to hand him over the next morning but he didn’t keep his word. It was only after the police made a written requisition that the accused was brought to the police station. He spent just one night in the lock-up.
During this time, the girl was sent for a medical examination to two places, but without success. As news of this incident and the subsequent protection of the accused by the army spread angry crowds, including students and women’s activists, held demonstrations.
Col. Sharma, however, kept claiming that his men could not be locked up by the police and that it was the army alone that could hold an inquiry. The next day, when the accused was presented before a judge, the army argued for jurisdiction over him. In his order the magistrate said that he was pleased to allow the accused to be released to the army and transferred the case to a court of inquiry set up by the army.
Meanwhile, the girl was made to shuttle between the army and the police. First the army interrogated her and then the police. She was sent for a medical examination for a third time, but only an X-ray was taken. The day after the army got hold of the accused, it began its inquiry and again called the girl and her mother for questioning. The mother was questioned for two hours while the girl was separately interrogated for four-and-a-half hours. Such inhuman, insensitive treatment drew protests from 22 women’s organisations.
The next day the army summoned the girl to appear before an inquiry in Dibrugarh. At this stage the deputy commissioner put his foot down and said that the girl could not be taken outside the district. So the fourth round of interrogation of the mother and daughter took place at a circuit house instead of the army camp. All this while the accused did not undergo any questioning or examination.
The army then began its court-martial procedures and summoned the girl for a fifth time. This time around the army also organised an identification parade with three men in uniform. The girl could not identify Upadhyaya. Identification parades are meant to serve the cause of justice but here it was used quite clearly to confuse the victim because the identity of the accused had never been in any doubt.
Bondita of WinG, who presented the case at the Delhi meeting, pointed out that when a delegation of women’s groups met Col. Sharma, he had argued that the inability of the girl to identify the accused during the identification parade was going to make it difficult to prove guilt. He also claimed that the badge of the accused the girl had managed to snatch was no proof because it could have been fabricated locally. These observations by Col. Sharma gave a clear indication of what the court-martial was likely to conclude.
While the army has managed to achieve its goal of protecting its soldier, the civil administration has been dragging its feet on questions of law and compensation. The chargesheet has not been filed and compensation is being paid in dribs and drabs, according to Bondita.
Kiran Shaheen, a social activist who was part of the fact-finding mission, observed that the army ended up persecuting the girl rather than prosecuting its jawan. “How does one expect a young tribal girl who has faced such violence at the hands of a man in uniform to have the courage to face army questioning?” Shaheen asked.
According to Vrinda Grover, advocate and human rights activist, the army and the security forces routinely misuse the provisions of the Army Act that defines legal provisions for violations committed while on active duty. If this does not work, it simply denies permission to proceed with the prosecution. In an answer to an RTI application filed by her, the army admitted that in Kashmir it has not allowed a single case to go for prosecution in two decades. “We have to close many loopholes,” stated Grover.
As historian Uma Chakravarty remarked at the meeting, the people of the Northeast have been suffering under the Armed Forces Special Powers Act (AFSPA) since 1958. In the rape and murder of Manorama in Manipur, too, the army argued in the Supreme Court on its right of jurisdiction. “How do we expect justice when the adjudicators and perpetrators are both men in uniform? A civilian must have recourse to a judicial system where the judge is an independent person,” she remarked.
Among the suggestions made at the meeting was that civil society should carry on its struggle to ensure that civilian victims of crimes by the army are not subjected to persecution in the name of prosecuting the accused. It was felt that the requirement of sanction for prosecution under Section 197 of the Criminal Procedure Code (CrPC) should be abolished in cases of custodial sexual violence and other human rights violations.
It was also iterated that while financial compensation cannot erase the pain and suffering caused, it is the duty of the State to pay exemplary damages without any bureaucratic delays to survivors of custodial rape. A call for repealing draconian laws like the AFSPA and the ending of immunity provided to security forces through laws like the Army Act was also made.
Finally, it was stated that a democratic political establishment must not deploy the army or the security forces against its own people, but address their grievances through democratic processes and institutions.