This report was originally published on 2 August 2019, as a conclusion to a two-part column on politicians' role in preventing the death penalty for rapist-killers. It is being republished in light of the rape and murder of a Hyderabad veterinarian, which in turn has led to calls by Rajya Sabha MPs for stricter punishments, including the death penalty, for rapists.
Trigger warning: The following article discusses, in graphic detail, reports concerning rape and murder. Reader discretion is advised.
It continues to be the season of "whataboutery" even though it can no longer be "pichlee sarkar" as the excuse. The politics, oh the putrefying politics and the selective outrage on all sides while children are hunted, hounded by sexual predators.
Feel sickened at the headlines: an MLA jailed for raping a minor has been, from the confines of his cell, terrorising her and her family; a witness has died in custody, her aunts have been killed. Neighbours don't attend the funeral for fear of the MLA's relatives, many of whom are politicians themselves with their own private armies of otherwise aimless mid-20s and 30s-henchmen allied by caste and cash. Politicians, paedophiles: perpetrators both, at such times.
The girl herself has been injured in the accident in which her aunts are killed when trucks bearing smudged license-plates crash into their car. Thanks to the thankless job that is the media's, there has been concern around this girl and the powers-that-be have provided her some form of security. Reportedly it is somebody within this police-security who has provided details of her movement to the person[s] who have organised the truck-accident.
Being played out on a daily basis for the next rapist " live lessons on how to replicate and get away with it.
Which politician in power is willing to stake her/his career on fixing what is, bizarrely, contributor to the overall crime condition? The jails. From which a one-time, small-crime convict emerges a hardened criminal. But which are mere waiting-rooms for the political class and their sons, brothers, uncles, assorted relatives who continue to operate seamlessly. If anything still functions, according to the bare modicum of rules and regulations in such politically co-opted corruption, it's because of those lone-ranger officers who, yet, don their uniforms with pride.
It's as much for these officers as it is for their dispirited juniors " legal-outcomes and timely convictions do not result from their investigations, they lose interest " that there be POCSO courts, police trained to correctly investigate child sexual abuse cases and the POCSO-mandated maximum time of one year for judgement. Chief Justice Ranjan Gogoi has recently been informed [25 July] that the Judge-POCSO case ratio is 1:224, that pending cases will take six more years. Consider a raped child of 10 years, consider this child's parents. Even if there are no calls from within a jail or the police popping in to menacingly say, "Samjhautaa kar lo", or the parents are being supportive of the child even though the perpetrator is their close relative, the child will be 16 till the time there is a judgement. Which parent " no matter how willing they may be to bear the trauma " will want their child to go through six years of sheer hell? Courts don't work on weekends, court dates may be exactly the same as exam dates; one year is already a too long time. The child is bound to turn "hostile".
Chief Justice Ranjan Gogoi is also told that 24,212 child-rape cases have been filed in the last six months alone [January to June 2019]. That's an average of 134 children being sexually abused by adults in India every single day. That is five children being raped per hour in India.
Repeat " five children being raped per hour in India.
To be noted: these are only the cases for which FIRs have been filed.
The number of child sexual abuse cases " including rape and other forms of sexual assault " per hour in India is likely to be much, much higher.
Politicians, are you paying attention to this crises? These are tomorrow's citizens; please look at some of the short and long-term effects on them in yesterday's column to understand how this crime affects victims of child sexual abuse.
And if that fails to move you, be frightened for your own families.
An unreasonably hot Delhi summer, 2017. Advocate Shubhangi Tulli says there is trouble in "completing the service". This means that after the SC accepted the PIL, it sent notices to all those marked in the petition. There are five rapists of the four children they murdered. One rapist [Jharkhand] died after the PIL was admitted, two respondents appear to have been served in the jails they are in [Uttar Pradesh] but two are unreachable [Madhya Pradesh].
Are they also untraceable? Are they even in jail? Or have they run away, crossed the border to Nepal as do purportedly most who jump parole? Or are they hiding elsewhere in India, working under assumed identities? Do they even need to assume fake identities if there is no computer-shareable crime record pan-India? Questions, more questions; blanks as answers.
We, she and I, consider the possibilities. The two convict-rapist-murderers of children had been served through the Inspector General of Prisons, State of Madhya Pradesh. Shall we do an RTI? RTI to whom, where, considering the system is stone-walling even the Supreme Court. Shall we, then, withdraw the names of these two rapists from the PIL. This may enable the PIL itself to proceed to the next stage; as it is four years have passed since its filing. But it would be wrong to do so, for all the right reasons.
On 15 September, 2017, the Supreme Court of India orders that the notices to the respondents be sent to the State Legal Service Authority, Madhya Pradesh State Government, to "ascertain which jail Respondent No 2 and 3 are stated to be lodged, and be served accordingly".
The SC also orders this legal department of the state government to submit its report "expeditiously".
Details of respondents numbers two and three.
Molai Ram, a guard in Central Jail and Santosh Yadav a prisoner in the same jail " sentenced under IPC 376 for rape " went to the residential quarter of the Assistant Jailor in the same jail compound. Finding the Assistant Jailor's 16-year-old daughter alone in the house, they gang-raped her, strangled her using her own undergarment and then stabbed her to death. They then threw her body into the jail's septic tank along with her bicycle and mislead people into believing that she had gone out with a friend on the bicycle.
18 February, 1997: Trial Court orders life imprisonment 9 December,1998: In appeal to High Court, sentence is enhanced to death. 26 October,1999: Supreme Court confirms death sentence. 21 December, 1999: Review rejected by Supreme Court. 2000: File received by MHA from state government. 4.2.2011: President pardons and commutes death sentence.
At every step of the file, isn't everyone aware that one rapist is a prison-guard? The second rapist is inside the prison for rape to start with? Therefore this also makes him a repeat-offender, that too of the same crime? That this was a gang-rape? That they have gang-murdered?
Perhaps a state government, a central government, a President, felt that these two would be a good influence on the other inmates in the Madhya Pradesh jail.
Details on respondent number six.
On the night of 4 October, 2003, this five-year-old girl is at a religious event. She takes a balloon from Bantu whom she knows from her neighbourhood. He playfully hoists her on his waist, people see him walking away with her and think nothing of it. He takes her to where he can overpower her, inserts his penis, tears the child's hymen. Dying, she is then raped, again, with a fully-grown plant stem-stick, locally called dhaincha. He shoves the dhaincha into her profusely bleeding vagina. He is in the act of continuing to thrust the plant-stick when he is found.
To complete the post-mortem the next day, doctors have to remove this green-wood stick from her vagina. The length of the part of the dhaincha protruding outside her vagina " 24 centimetres. Length of part inserted "33 centimetres. The savagery of the thrusts have "incompletely broken" the stick. Total length of stick " 57 centimetres.
From the post-mortem report of this five-year-old, "Small-size uterus of the victim ruptured due to insertion of wooden stick and small and large intestine are also perforated. Mesenteric vessels in abdomen are torn due to insertion of stick."
24 December, 2005: Trial Court announces death sentence. 29 August, 2006: Uttar Pradesh High Court confirms death sentence. 23 July, 2008: Supreme Court confirms death sentence. 2009: File received by MHA [Ministry of Home Affairs, Delhi] from Uttar Pradesh state government with mercy petition. 20 September, 2011: Matter under examination in MHA. 2 June, 2012: President commutes death sentence.
Please pick up a ruler, the kind used in schools, or a measuring tape. Please mark 57 centimetres on it. Now, imagine it to be a wooden stem that size. Now close your eyes, imagine yourself being raped with this 57-centimetre wood stem; no matter your gender or your current age; think about yourself being raped while dying, in scything pain.
Now do you see whose side the system is on?
This writer's PIL " # W P [Crl] No 197/2013 " has recently been closed by the SC [thereby leaving her free to speak/write about it]; no reason given. None needed, Your Honours; thank you for trying.
This writer had two requests in the PIL, the second was made with solutions.
One: Re-institute the death penalty for these five convicts. If allowed out on short-term parole, they are an immediate danger to children. They cannot be allowed to re-enter society whenever their life-terms are complete due to the severity of their crimes and the consequent likelihood of repeat offence [one rapist is a repeat offender in jail itself]. They cannot be allowed to stay in jails till death at tax-payer expense, in jail too they are an immoral influence to the other inmates and jail-staff.
Two: The SC may please issue guidelines to the Centre and States on the powers of the presidential pardon. The four cases are glaring examples of how routinely, arbitrarily and without application of mind, files are forwarded by state governments and ministry of home affairs proposing pardons to the President. Their casualness is also evident when life is given to a dead convict of rape and murder.
Below, a reproduction of the relevant text in the PIL on the solutions:
In the matter of granting clemency " in the large public interest, in the interest of the victims and/or their near and dear ones, and in the interest of both, the moral fibre and the physical safety of society " definite parameters are required to be laid down which can be applied as objective assessment of each case by both, the Ministry of Home Affairs and the President. The SC may please give the following guidelines to Central government of India.
The two suggested Definite Legal Principles which must be applied by the Council of Ministers, the Union Ministry of Home Affairs and verified by the President before granting pardon are as follows:
(i) The objective analysis of the case must inspire a belief amongst the Council of Ministers as also the President herself/himself that there is serious aberration in application of the "rarest of rare" case principle in the matter of awarding death sentence. (ii) While awarding the death sentence there is no unanimity amongst the judges and by virtue of majority judgment the death sentence is awarded.
The seven suggested Definite Verifiable Parameters which must be applied by Governors, States and their Chief Ministers, the Council of Ministers, the Union Ministry of Home Affairs and verified by the President as unpardonable on all counts read jointly or singly, after the Court has pronounced death-sentence under "rarest of rare", are as follows:
(i) If the death-convict has raped and murdered minors (minors as confirmed under JJ Act), pregnant women, persons of mental or physical incapability. (ii) If the death-convict is a repeat-offender of the same or any other heinous crime. (iii) If the death-convict is a threat to society, especially the women and children, when/ever released on parole on any grounds. (iv) If the death-convict has used any religion as a tool/base/alibi/reason to commit the crime. (v) If the death-convict acted with common intent alongside another accused to grievously harm the victim, eg gang-rape. (vi) If the death-convict has put his/her victim in a vegetative state/permanent vegetative state/coma. (vii) If the death-convict was in a fiduciary relationship with the victim or in a position of authority and dominance over the victim at the time of committing the crime. Viz. Family or economic dominance. Institutional or governmental dominance (namely charitable homes and orphanages, government and private hospitals, police and jail personnel, public servants and politicians).
The power of pardon under Article 72 of the Constitution of India is susceptible to misuse by those preferring the vast grey area. The suggested two Definite Legal Principles and seven Definite Verifiable Parameters for exercise of the power under Article 72 of the Constitution of India will work for the greatest good of all, especially the citizens of India.
Crimes that shock the nation are now a daily reality. This has also lead to further breakdown in law and order, more so since punishment by theory of deterrence to mark public abhorrence is not being applied.
There is a social crises in India today because the rights of the victim of the crime and also society at large " including tax-payers because of whose contribution to the exchequer rapist-murderers continue to enjoy jail-privileges " are not given full weightage by executive wings of governance. The punishment must be about the crime. Otherwise, the only ones who benefit are the perpetrators of it, potential ones included.
And now, over to the Central Government and its Council of Ministers especially Home, Law, Women & Child.
Article 21 of the Constitution of India guarantees protection of life and personal liberty to even those citizens of India who don't vote. It is their right, as it is society's right, to feel protected from rapist-murderers.
So " will there be swift application of death penalties, if the above two plus seven parameters are met, of death-convicts?
Or will the politicians in power, like those in the past, continue to run with the hares and hunt with the hounds?
National Award-winning Pinki Virani is author of five bestselling books including 'Politics of the Womb: The Perils of IVF, Surrogacy & Modified Babies'.