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INDIA: Country's democracy stripped naked by Delhi police
FOR PUBLICATION
AHRC-ART-060-2010
June 14, 2010
An Article by the Asian Human Rights Commission
The Campaign against Torture is one of the core thematic activities of the Asian Human Rights Commission (AHRC). With a view to promote local debates on torture and to encourage ordinary individuals, human rights activists, scholars and jurists to write and debate about the subject in India, the AHRC has called for articles and papers on the question of torture, of which a selected few will be published by the AHRC. The following is the second in this series.
INDIA: Country's democracy stripped naked by Delhi police
Avinash Pandey Samar*
On 23 May 2010, police officers, including a woman police constable reportedly tortured and abused a mother and her 12-year-old son in Rajouri Garden Police Outpost in Delhi. It is reported that the officers forced Mala (name changed) to strip naked in front of her minor son and demanded her to have sex with her son. Upon refusal, one of the police officers asked Mala to have sex with him. Mala, a slum dweller from Delhi's Mayapuri area had gone to the police outpost with her husband to enquire why her two sons were detained at the police station.
The police on 22 May arrested Mala's two sons, aged 12 and 10, on the accusation that they had stolen Rs. 6000 from a car. The torture and abuse was reportedly to force the 12-year-old boy to confess the crime and return the money. As the result of a complaint lodged by Mala with the help of a local human rights organisation at the office of the Delhi Police Commissioner, Mr. Y. S. Dadwal, suspended from service the Woman Head Constable Amrita Singh and Constables Pramod Kumar and Santosh of Rajouri Garden Police Post. The Assistant Sub Inspector who was in-charge of the outpost was transferred from the outpost.
A few Indian print media reported the case somewhere in the inner pages among several other articles in the 'city news' section. But the 'news value' that the media 'awarded' to the incident was not strong enough in this case to carry it beyond the first day.
Yet, had it not been for the media outrage over the blatant subversion of justice in the Jessica Lal murder case and in the recent Ruchika Girhotra molestation and abetment of suicide case, the culprits in these cases having access to power and influence in India would have never been punished. In the Jessica Lal case, the convict is the son of a powerful politician and in the Ruchika Girhotra case, the convict is a high-ranking police officer. The Indian media can claim credit in preventing persons like Pramod Muthalik, the self-styled leader of Sri Ram Sena, from roaming around attacking and assaulting women and minorities alike in his moral policing campaigns.
But in Mala's case was it that Mala is a Dalit a reason for the Indian media's lack of interest concerning the horrific experience of a poor slum dwelling family at the hands of the country's most demoralised public institution, the police? Or do the scribes too share the same mindset and prejudices as the powerful and mighty of India? Can it be that the media identifies itself far more with the affluent, urban and middle class India than the residents of the slums? Or do the media share the same class rigid mindset -- that the poor cannot be trusted?
Apart from the media, where are India's women and Dalit rights groups? Or do they also believe in the middleclass rhetoric that the 'poor will not mind to level false accusations of any degree to save themselves'? The very next day after the incident was reported the police admitted that there was the possibility of 'extreme verbal abuse' and that the woman has levelled these charges 'to protect her son'. Legalities apart, the human rights and women's rights organisations in the national capital are yet to utter a word publically against the incident.
Even a very superficial analysis of the case raises several serious issues beginning with, what law allows the police to detain two children aged 10 and 12 in a police lock-up overnight instead of sending them to a juvenile home or presenting them immediately before a magistrate having jurisdiction to deal with cases involving minors? What authorised the police to torture the victims in the police outpost for extracting a confession instead of investigating the case?
After being approached by the human rights group that took up the matter the police was compelled to take action against the officers. Ironically the superior officers did not see that the case as a horrific example of what the country's police have become, and for their own future convenience termed the case as an instance of 'not following proper procedure while handling juveniles'. A probe by the Vigilance Department of Delhi Police has been ordered to look into the allegations of stripping. What this probe will achieve, as the investigating agency is the same police, is anybody's guess.
The statement of the senior police officer while briefing the media only reaffirms the fear of bias in the probe since he only acknowledged the 'likelihood' of 'extreme verbal abuse' while refusing any possibility of stripping. Yet, the officer inadvertently shed light to what the establishment could do by saying 'we could have hushed the case up, but the fact that we have suspended the officers involved in the case implies that an impartial investigation will be undertaken'.
Impartiality in the Indian context means the exact opposite -- the accused investigating the crime; the judge being the prosecutor, accused, plaintiff, witness and the jury. Ironic, it may appear, but at present in the context of crimes committed by the police there is no other process available in India where an iota of impartiality can be attributed to police investigations of crimes committed by police officers.
On a deeper level, the case raises much more serious concerns having a bearing on the rule of law and consequently the notion of democracy itself.
Most importantly and unfortunately, the case is not a standalone incident of some rogue police officer going astray. Indian police and paramilitary units are infamous for sexually assaulting, including stripping and parading women in public spaces, to instil fear among the masses and to quell dissent. They are also known for looking the other way when locally dominant people, especially from the upper caste and class in rural India, commit crimes. After all, if some police officers can do it in Delhi, the national capital, despite the presence of all its media and civil society organisations, who can guarantee the safety and security of women in faraway places where there is no presence of any similar safety mechanisms?
Further, the case exposes the culture of silence when the victims belong to the Dalit or tribal communities, most disadvantaged and therefore most vulnerable. Logically, these are the people who should be supported the most by the civil society including the media. The ground reality, sadly, is exactly the opposite. Whatever are the reasons behind this, these are precisely the people abandoned by the abovementioned, left to fend for themselves against all odds.
Even a cursory glance will confirm the trend. Mala and her family underwent the traumatic experience by those supposed to protect the law on 23 May. The family was so terrified by the events that they kept silent for more than two weeks and could not gather courage to make any complaints to the authorities. It was only when the story reached a local NGO through neighbourhood whispers that the incident came to light and a complaint filed. Clearly, for every such case, which reaches the doors of law, there would be many pushed under the carpet. And with them there would be shattered dreams, disbelief in government institutions and, perhaps, democracy itself.
The case throws ample light on the issue that though India claims to be the largest democracy of the world, the barbaric ideologies of caste and gender based discriminations are what fuel it. It also shows that caste and gender based prejudices are as strong in the society as they were hundreds of years ago. Even worse is the fact that the caste based value system has remained internalised even in the educated elites who are primarily responsible for the constitutional mandate of eradicating it.
What operates in these cases is neither the free and fair implementation of the rule of law nor even a critical engagement with the issues. When it comes to justice for the poor and the downtrodden -- lower castes in most cases as the boundaries between lower caste and lower class in India are very fuzzy and highly vulnerable -- the reactions are often located in two extremes. One is the utter disregard and contempt to the sheer idea of justice treating the victims as dehumanised creatures bereft of any dignity and the other is highly patronising benevolence offered in response to qualified inclusion by various ways like the Sanskritisation. This patronising attitude too is missing when the victim is a Dalit, tribal or a minority woman suffering with the double burden of two underprivileged identities.
A case in point would be to see how the gender discrimination in India is superimposed on and organised along the skeleton of caste. That even the highest echelons of judiciary could deliver a highly misogynist verdict in the Mathura rape case (Tukaram V. State of Maharshtra, AIR 1979 SC 185) when the court overruled the decision of the Bombay High Court convicting two policemen for raping Mathura, a 16-year-old girl. The basis of the Supreme Court's decision that the complainant -- an illiterate, orphaned tribal girl -- was of loose character because she had eloped with her boyfriend and was brought to the police station only because of the complaint of her brother and that she was lying about rape because there were no marks of injury was unbearable to say the least.
The decision caused enormous outrage and led to strong movements for gender justice culminating in a reform of the laws relating to rape in 1983 including that in cases of custodial rapes, the burden of proving consent, once the sexual intercourse was proved, shifted to the accused. Unfortunately again the amendment in law meant little positive change on the ground as even today the first defence offered by the accused in rape and other cases of sexual assault is the 'loose' character of the woman.
In 1995, in the Bhanwari Devi rape case, a trial judge observed that because Hindu scriptures do not allow upper caste men to touch a low caste woman, the accused could not have raped the Dalit victim. The judge went on to cast aspersions on the character of the victim saying that she 'is lying' as the medical examination was done 'full 52 hours after' the alleged event. That this happened almost 16 years after the notorious Mathura case judgment and a full 13 years after the reforms of rape laws speaks volumes about the change in the mindset of those in the judiciary, leave the common citizen alone.
Political leaders are not far behind when it comes to having highly misogynist and anti-Dalit worldviews though they keep pretending otherwise. Just to remind an incident, can anyone forget the statement by Mr. George Fernandes, the then Defence Minister, justifying rapes of Muslim women during the Gujrat carnage by terming it a 'common enough occurrence' during riots and 'why to complain about it now'? That he said this in the Indian Parliament adds a little more to the meaning though. The point missed by many was simple enough that Fernandes tried to delink rape from a well-organised state-supported pogrom of Muslims and put it into the individual realm.
It cannot be just a coincidence that media did not go in the outrage mode even then. Definitely there was condemnation of the statement, the issue did find place in the inner pages of the newspapers and in non-prime time slots in the electronic media. But then that it was. The same way it is now. And should we fear that the same way it would remain in future as well?
Mala's case, together with thousands of the similar ones, is the conclusive evidence that the project of nation building through democratisation of the society has failed terribly. The India today is not what Dr. B. R. Ambedkar envisioned it to be. The idea of nation to him, and to every rational individual, was not just of political sovereignty but one where the people feel socially bound as a group and not as divided by a regressive and pre-modern mode of social organisation that caste is.
That any police officer can strip any woman, more so those from the disadvantaged backgrounds with impunity, knowing well that the officer would get the support of the superior officers. The criminal in uniform, which many Indian police officers are, is aware that the superior officers would be smart enough to differentiate between 'extreme verbal abuse' and stripping while completely ignoring the basic issue that with what right had he detained two children in a police station for more than a day.
The officers accused in Mala's case knew that in most cases the victim, terrorised and traumatised, would never knock at the doors of law. And even if she does, the case would not get the media attention other cases involving upper castes and upper class victims would get. And that the case would be buried under the files, to be dismissed after a decade or so, because of the lack of evidences.
But then, in every such case it is not just an ordinary Dalit woman who gets stripped by the police. It is the democracy of the country itself. And whatever pretensions that comes with it!
*Mr. Avinash Pandey Samar is a research scholar based in New Delhi, India. Currently Samar is in Hong Kong on a work assignment with the AHRC
# # #
About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.
Posted on 2010-06-14
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