The recent arrest of a gang-rape survivor and her two support-givers in Araria, Bihar, allegedly for contempt of court, had shocked the entire country. A huge public outcry ensured that the rape survivor was granted bail but her two support-giver activists remained in prison. The support givers were granted bail today, by the Honorable Supreme Court, but many questions arise about the criminal justice system and the ways in which it deals with cases of sexual violence, and also the functioning of the judiciary during the pandemic. Should ordinary citizens be allowed to languish in jail simply because the justice system could not figure out a way to function during the pandemic? It’s impossible for numerous, nameless survivors and support persons to reach out to the Supreme Court for merely getting bail. Shouldn’t the lower judiciary show some sense of awareness of its responsibility and that their actions fall “within the purview of law”, not outside it? Puja writes.
Inaccessibility of the language of law is the starting point of injustice.1 It seems to have played out in the recent Araria Arrests case, where the survivor of sexual violence (who has named herself Khushi) and her support givers, Kalyani and Tanmay. Khushi, Kalyani and Tanmay were sent to jail, and an FIR was registered against them for criminal conspiracy, obstruction of duty of a public servant and contempt of Court. On 17th July, 2020 the Chief Judicial Magistrate’s Court in Araria had granted bail to Khushi on PR bond, but refused bail to Kalyani and Tanmay. On 4th August, 2020, the Hon’ble Supreme Court of India granted interim bail to both of them, apparently orally observing in the courtroom that “the order by which the petitioners were sent into custody was totally impermissible in law”.2 While, they have been given bail, the situation of this case compels us to ask few very pertinent questions about the ethics of law and justice from the feminist perspective.
It is important to lay down precise facts of the case before opening up the institutional response for further questioning. After having suffered aggravated sexual assault (gang rape) on the 6th of July, 2020, Khushi was distraught and traumatized. An FIR was filed and a medical examination was conducted on her. Statement before the police was also recorded. On 10th July, 2020 she was called to record her statement before the Learned Sub-Divisional Judicial Magistrate (SDJM) under Section 164 of the CrPC. She was made to wait for 4-5 hours in the court premises, where she found herself to be standing in proximity with one of the accused, which was a trigger for her. Before the recording of her statement under Section 164, she was asked by one of the peshkar (assistant to the SDJM) to recount her story, he also told her that he recognizes her. Another peskhar also tried to do the same, but was stopped by one of the support persons.
Thereafter, she was taken into the Learned SDJM’s chamber for recording of her statement under section 164 of the CrPC. During this time, the support givers, Tanmay and Kalyani were standing outside his chamber as they were not allowed inside. After her statement was recorded, it was being read out to her by the Learned SDJM on her request. But, she complained of not being able to fully understand what was being said. She requested the Learned SDJM to call Kalyani inside.
She was refusing to sign the statement, but later signed it and came out of the chamber. Meanwhile, the Learned SDJM called Tanmay and Kalyani inside. Both requested the Learned SDJM to again read out the statement to Khushi if she didn’t understand it fully. But, they were informed that the statement had already been signed and sealed. And, the sealed envelope was waved at them. The Learned SDJM had taken out his phone and started recording a video and started saying that both Tanmay and Kalyani were being disrespectful. Thereafter, he directed the police to arrest them, after which they were taken and lodged at a Mahila Quarantine Prison in Samastipur.3
Error of Law and Insensitivity
The facts of this case may seem very ordinary, but justice has died several deaths due to the arbitrary use of power in the aforementioned series of events. In an interview with the BBC, Khushi has stated that she was called “badtameez ladki” several times by the Learned SDJM when she demanded the presence of her support givers while her testimony was being recorded.4 In the interview, she has explained that she could not understand the statement that was being read out to her out of distress.
Firstly, the facts suggest that the SDJM’s Court was absolutely incapable of understanding her distress and therefore, did not, on its own initiative, direct the support givers to be present with her, while her statement was being recorded. Instead, he got upset at the lawful demand made by Khushi for the presence of Kalyani. It indicates that the judicial office was also incapable of understanding that the statement being recorded under section 164 of the CrPC is not just a procedural requirement that needs fulfilling, it is crucial for guaranteeing justice and ensuring substantive equality to women who face sexual violence stemming from systematic and structural class-caste-gender based discrimination.
During the entire time, while the survivors interact with the legal and judicial process in search for justice, they are entitled to legal, psychological and financial support during the pre-trial5 and trial6 processes. But, the survivors of sexual violence hardly receive any support from the state institutions. Especially in a place like Araria, such support infrastructure is seldom found. According to Section 164 (5A) (a) of the CrPC, “if a victim of sexual assault is temporarily or permanently physically or mentally disabled, the Magistrate shall take the assistance of an interpreter or a special educator for recording the statement”. But, the manner in which the SDJM’s court has conducted itself, it inflicts a disability on Khushi, because she was made to depose in disabling circumstances in the absence of her support givers, whom she trusts. The disability upon her is further aggravated because she did not receive any kind of institutional support which she is entitled to under the law. Instead, her support givers who out of love and care were present with her, were arbitrarily put in jail along with her. Disability , then, emerged not as a category that characterizes the survivor, it is a characteristic of the legal institutions and processes which block all possibilities of her journey from victim-hood to survivor-hood.
Absurdity of charges and theatrics of the arrests
Khushi,Tanmay and Kalyani were immediately sent to jail. An FIR was filed against them by the peshkar of Learned SDJM’s court. The FIR7 includes charges under Section 353, 228, 188, 180, 120 B of IPC and Sections 2 (a), 2 (c ) and 20 of Contempt of Courts Act, 1971. These charges include criminal conspiracy, obstructing the duty of a public servant, refusal of signing the statement, and contempt of Court. It is quite ludicrous to put charges on a gang-rape survivor and her support givers for criminal conspiracy, because it assumes that all three of them entered the court premises with a well-hatched plan for committing the criminal acts mentioned above. Although neither the intention, nor the motive behind committing such “crime” is clear, Khushi and her support givers were in severe distress. To put charges on them is nothing but harassment. The FIR also states, in a rather amusing way, that Kalyani had snatched the statement and wanted to tear it, but couldn’t. If she wanted to tear the statement she could have, it’s not so difficult to tear a paper into two pieces.
Coming to the use of provisions under the Contempt of Courts Act, 1971 the subordinate courts do not have the power to invoke criminal or civil contempt of court provisions (Section 10 and 15 (2)). “The respective High Court of any state to which the subordinate court belongs has the power to invoke criminal contempt of court provisions on their behalf and take action on a reference made to it by the subordinate court or on a motion made by the Advocate-General” (Section 15(2)). Therefore, jailing all three of them was against the letter and intent of the Contempt of Court Act and law reforms made in laws relating to sexual violence which is based on victim-survivor centric approach. Therefore, the action of Learned SDJM is absolutely arbitrary.
Criminalizing Solidarity & Care
Tanmay and Kalyani were also sent to jail. Questions arise about the legality of the role of support givers and whether they should, or can be criminalized. The support giver has a moral and ethical responsibility for ensuring that the survivor is healing, and mentally prepared for her statement to be recorded. As per the “procedure established by law” under Section 164 (5A) (a), the court can take the assistance of support persons for recording the statement. It creates an environment of trust for her to open up, and feel safe. In this case, Tanmay and Kalyani were not allowed in the Learned SDJM’s chamber despite the fact that statement was being recorded without the presence of any women in the chamber whom Khushi could trust. She was called “rude” & “manner-less”, and was made to sign the statement despite her requests for Kalyani’s presence during the process. In this circumstance when Tanmay and Kalyani were summoned in the Learned SDJM’s chamber, what were they supposed to do ? Wasn’t it their moral and ethical duty to inform the Learned SDJM that an error was committed while the statement was being recorded, which could affect the substance of justice in Khushi’s case?
For ensuring access to justice, it is important that all institutions and persons involved in the process should be aware of their responsibilities. They also have a responsibility to seek accountability from the institutions that deviate from “procedure established by law” and “due process”. Therefore, Tanmay and Kalyani, by simply requesting for the statement to be read out again to Khushi, were carrying out their duty of seeking accountability from the judicial institution.
Culpability of the public servants
The police officers engaged in investigating the matters were publicizing Khushi’s identity at public places which is punishable under Section 228 A of the IPC. Similarly, the peshkar by allowing the journalist access to details of her case, including the particulars of her identity has committed crime under Section 228 A. The police and peshkar were acting with prejudice against Khushi and violated their legal obligations relating to non-disclosure of identity of the survivor. Therefore, they are liable to be punished under Section 166 A of the IPC. In addition, two national newspapers carried false and exaggerated reporting of the case revealing Khushi’s identity. The editors and journalists involved in the publishing of such reports, are liable to be booked under Section 228 A of the IPC.
It is not known whether any action has been taken against the police officers, peshkar, the editors and journalists of the concerned media houses. On the one hand, Khushi, Tanmay and Kalyani were sent to jail immediately and arbitrarily. On the other hand, those who have committed the offense of sexual violence and publication of her identity, are roaming free. That says something about the legal institutions, media and our society. They are not at all concerned about the well-being of the survivor. Rather, sexual violence against the women of a certain class (working class) is an exoticized material available for consumption, which ensures the newspaper’s profit. While such representations ensure profitability, they also reproduce the conditions that enable caste-class-gender based inter-sectional discrimination faced by the survivor of sexual violence at the hands of the institutions and society.
At last, it is important to state that all this while, the constitutional guarantees of substantive equality to Khushi has been violated by arbitrariness of the procedure leading to her and her support-givers’ arrests. Her right to privacy and right to life with dignity under Article 21 were violated by publication of her identity and character assassination which has temporarily confined her into private space. It has also led to violations of her right to freedom of movement under Article 19 (1) (d) of the Constitution. And more importantly, by criminalizing her, Tanmay and Kalyani Article 39 A was also violated, because it is the state’s duty to ensure equal access to justice.
It seems that the hope for justice was lost in translation from substance to procedure. But, Hon’ble Supreme Court’s order for bail to Tanmay and Kalyani instills some hope that all is not lost. However, institutional response to matters related to sexual violence should reflect on the fact that it’s impossible for numerous, nameless survivors and support persons to reach out to the Supreme Court for merely getting bail. Shouldn’t the lower judiciary show some sense of awareness of its responsibility and that their actions fall “within the purview of law”, not outside it?
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1 Jacques Derrida, Force of Law: The “Mystical Foundation of Authority” in Drucilla Cornell, Michel Rosenfeld, David Gray Carlson (Eds.), Deconstruction and the Possibility of Justice (Routledge 1992) pg. 3-67
2 Bar and Bench, Bihar gang-rape: Supreme Court says Araria Court’s order remanding social workers to custody is impermissible in law, grants bail
3 The facts of this case have been based on the information publicly put out by Jan Jagriti Shakti Sangthan (JJSS) and Khushi’s interview with the BBC.
4 Khushi’s interview with the BBC : https://www.bbc.com/hindi/india-53509353
5 Pre-trial process includes filing of FIR under section 154(1) read with proviso, medical examination (MLC) under section 164 A, recording of statement by the police under Section 161, recording of statement by the Magistrate under Section 164
6 The stage where a case goes to the court for trial, charges are examined and assessed and decision is made on the basis of the testimony of both victim, accused and the witnesses, medical evidence, charge-sheet submitted by the police and arguments presented by both sides.
7 FIR No. 60/2020 (Mahila Thana, Araria)
- The author is an Independent Researcher and Visiting Faculty at NLU-D