Why does every bout of brute, targeted violence inevitably become a battleground for sexual violence against the community’s women?
We saw this gruesome pattern during the bloodshed that surrounded India’s partition. Sikh, Muslim and Hindu women in equal measure were held to account, in revenge and wrath for what was perceived as the fault of the community they belonged to.
The same pattern has held true in various parts of India and South Asia thereafter – in the brute post partition anti-minority bouts of violence in India, including the violence suffered by Kashmiri Pandits in the Kashmir valley.
Unmatched in gruesome scale and scope were the Gujarat 2002 massacres, where by the state’s own admission, as many as 193 women and girls, of the Muslim minority, were targeted and attacked. (Independent assessments put the figure closer to 250).
Several lessons have been learned from the struggle for justice in Gujarat that has, to date, in an unprecedented “success rate” convicted over 172 powerful perpetrators. In three of the criminal trials, the narrative of gendered violence found space during the court proceedings.
The need for thorough recording of the first information report, independent investigations, time bound trials and a robust witness protection programme are the prerequisites of any struggle for justice as the robust Gujarat experience shows. Over 570 witness survivors, lawyers and human rights defenders, to date have such protection by the para-military, guaranteed by the Supreme Court.
The Supreme Court’s continuous monitoring the progress of the trials also ensured some degree of redressal as time wore on and the investigating agencies slipped into cruel lethargy.
Losing hope in western Uttar Pradesh
It is, this month, a decade and a half after the state-wide carnage in the western Indian state.
Three years and five months ago, four districts of western Uttar Pradesh that have just celebrated democracy’s ultimate festival, the Assembly elections in the state, saw just such an upsurge. Muzaffarnagar, Baghpat, Shamli and Meerut erupted nine months prior to India’s general elections in May 2014 with targeted violence.
Not only were more than 60 lives lost and several thousands of the minority community internally displaced (this author was witness to deaths by the cold, of women and children, in the open-field relief camps all over the districts) but women, as usual bore the brunt.
Seven courageous women complained and documented their tale. Despite the Supreme Court of India being seized of the matter, not once but twice, and even passing salutary directions on several pleas, the abject failure of state mechanisms to deliver real and substantive justice raises questions of institutional accountability towards the dignity, justice and the well being of its citizenry, especially if the victim survivor hails from the voiceless – uninfluential – section of our people.
Amnesty International’s detailed report of its investigation of this targeted communal violence, Losing Faith – The Muzaffarnagar gang-rape survivors’ struggle for justice, is a testimony to the courage of the survivors and an exposure of the hollow claims of the protection of constitutional rights by the Indian state. Celebrate as we do election time and the festival of the ballot, little do issues of human rights and dignities matter when the campaign trail blazes shrill and strong. In the immediate aftermath of the first phase of elections in Uttar Pradesh, exactly where the tragic tales of the rape survivors are located, will this narrative have any impact?
Of the seven rape survivors, one died in child birth last year. A month before she died, she said to Amnesty, “If those responsible are brought to justice, I will be happy in my heart. I will not live in fear anymore “(Esha, a gang-rape survivor, July 2016). Her evidence had not even been recorded before she died. A petition for the transfer of her case outside the district of Muzaffarnagar had been filed in April 2016 and is, shockingly, still pending. Of the other five, two have been forced by bitter court delays and the force of circumstance to turn “hostile”.
“Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial.”— – Supreme Court of India, Zaheera Sheikh v State of Gujarat, 2006
The detailed narratives of all seven survivors reveal the utter failure of the state to preserve and protect witness testimonies. Not only was police protection denied to them but the deliberate and prolonged delays in the hearings and the constant intimidation and threats by the alleged accused have ensured a pervasive culture of impunity to the perpetrators.
In all seven gang-rape cases, the police took months to file charges, and even after they did so, trials have proceeded extremely slowly, making a farce of the famed 2013 amendment to Section 309 of the Code of Criminal Procedure that dictates “day-to-day hearings until all the witnesses in attendance have been examined, “ and completion of a trial, in rape cases “within two months”.
One of the complainants, Fatima, tried unsuccessfully to file an FIR on September 20, 2013 and finally succeeded only on October 9 that year. Another, Ghazala, sent her complaint as early as October 22, 2013, but the police registered an FIR only after the issue was raised before the Supreme Court, on February 18, 2014. Ghazala too has applied for her case to be transferred out of the district. She told a trial court in January 2016,
“I am extremely apprehensive of coming to the Muzaffarnagar District court as the accused persons and their family members who all belong to the dominant community wield considerable influence in this area. I fear that harm will be caused to me and my family when I go to give my evidence in the Muzaffarnagar District court.”
The National Commission for Minorities, too, after a visit to the area in June 2014, has documented several complaints “about harassment of rape victims”.
Though the initial directions from the Supreme Court ensured that Rs 5,00,000 in compensation was paid to these survivors, the absence of any livelihood and continued threats and intimidation by perpetrators and even the police have rendered their existence fragile.
The continued need for robust and persistent legal aid, adequate reparation as also the enactment of a law to prevent communal violence (a task this country aborted mid-track in 2014), as also a witness protection programme are the need of the hour. Only through police reform will we reach a stage where there is thorough and independent investigation.
But the ruling dispensation in New Delhi remains blind to the fact that some of its cadres and party men even today remain accused of being the perpetrators of such hate-filled acts of vengeance and of further intimidating those who dare struggle for lasting peace through justice.
Teesta Setalvad is secretary, Citizens for Justice and Peace.