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Bombay court convicts man for sexual harassment in one of the shortest trials!

The case was registered on September 28 and the court delivered its verdict on October 5

18 Oct 2021

sexual harresment

Metropolitan Magistrate, Yashshree Marulkar convicted a person for offences of sexual harassment, and sentenced him to suffer rigorous imprisonment for a period of 3 years and to pay a fine of Rs 1,000.

The incident took place on September 18, 2021 in a park when the 56-year-old convict unzipped his trousers, exposed his genitals, and started walking towards the survivor. She ran towards the exit gate of the park but the perpetrator kept following her. Eventually, after asking for help from two people in the park, they restrained him, while she sought help from the police.

A police vehicle then arrived at the spot and took the perpetrator into custody and brought him to the police station along with the survivor. Thereafter, an FIR was registered against him and he has remained in custody since then.

After examining all witnesses on October 4, the Magistrate framed charges under sections 354 (assault or criminal force to woman with intent to outrage her modesty), 354 (A) (iv) (a man making sexually coloured remarks, shall be guilty of the offence of sexual harassment) 354 (D) (stalking) of the Indian Penal Code against him.  

The Magistrate said, “In view of discussions in foregoing paras as well as the ingredients constituting the offences with which the accused is charged, in my opinion, the prosecution has established the fact that, the accused by moving around the victim and compelling her to sit on the other bench in the garden, and even after that flashing her by unzipping his trouser and chasing her shows that, he has used criminal force to her intending to outrage her modesty.”

The order further recorded, “Sexual violence apart from being a dehumanising act is an unlawful intrusion on the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim. It leaves behind a traumatic experience. The accused not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman, i.e., her dignity, honour, reputation…sexual offences are not only a crime against the person or a woman, it is a crime against the entire society.” 

During the trial, the Magistrate also lauded the efforts of the Police officials for the registration of an FIR right after the incident, showing extreme sensitivity towards such serious crimes. Although the police are legally and duty bound to register FIRs on a serious complaint, it is rarely done because of the mindset and disbelief towards the survivor’s testimony.

The order may be read here: 

Related:

391 complaints of sexual harassment at workplace received from Central Ministries: Government

CJP Impact: Twitter suspends 21 accounts threatening Muslim women with sexual violence

Madras HC takes cognisance of officer threatened for filing sexual harassment complaint

Bombay court convicts man for sexual harassment in one of the shortest trials!

The case was registered on September 28 and the court delivered its verdict on October 5

sexual harresment

Metropolitan Magistrate, Yashshree Marulkar convicted a person for offences of sexual harassment, and sentenced him to suffer rigorous imprisonment for a period of 3 years and to pay a fine of Rs 1,000.

The incident took place on September 18, 2021 in a park when the 56-year-old convict unzipped his trousers, exposed his genitals, and started walking towards the survivor. She ran towards the exit gate of the park but the perpetrator kept following her. Eventually, after asking for help from two people in the park, they restrained him, while she sought help from the police.

A police vehicle then arrived at the spot and took the perpetrator into custody and brought him to the police station along with the survivor. Thereafter, an FIR was registered against him and he has remained in custody since then.

After examining all witnesses on October 4, the Magistrate framed charges under sections 354 (assault or criminal force to woman with intent to outrage her modesty), 354 (A) (iv) (a man making sexually coloured remarks, shall be guilty of the offence of sexual harassment) 354 (D) (stalking) of the Indian Penal Code against him.  

The Magistrate said, “In view of discussions in foregoing paras as well as the ingredients constituting the offences with which the accused is charged, in my opinion, the prosecution has established the fact that, the accused by moving around the victim and compelling her to sit on the other bench in the garden, and even after that flashing her by unzipping his trouser and chasing her shows that, he has used criminal force to her intending to outrage her modesty.”

The order further recorded, “Sexual violence apart from being a dehumanising act is an unlawful intrusion on the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim. It leaves behind a traumatic experience. The accused not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman, i.e., her dignity, honour, reputation…sexual offences are not only a crime against the person or a woman, it is a crime against the entire society.” 

During the trial, the Magistrate also lauded the efforts of the Police officials for the registration of an FIR right after the incident, showing extreme sensitivity towards such serious crimes. Although the police are legally and duty bound to register FIRs on a serious complaint, it is rarely done because of the mindset and disbelief towards the survivor’s testimony.

The order may be read here: 

Related:

391 complaints of sexual harassment at workplace received from Central Ministries: Government

CJP Impact: Twitter suspends 21 accounts threatening Muslim women with sexual violence

Madras HC takes cognisance of officer threatened for filing sexual harassment complaint

Related Articles


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Purge incorrect, derogatory references to LGBTQIA+ persons: National Medical Commission

NMC issues advisory to medical colleges and textbook authors; decision flows from a landmark June 2021 judgment by Madras HC

14 Oct 2021

Camera
Representation Image

The National Medical Commission has issued an advisory pertaining to misinformation about and derogatory references to members of the Lesbian, Gay, Bi-sexual, Transgender, Queer, Intersex, Asexual+ (LGBTQIA+) community in medical textbooks.

The advisory dated October 13, flows from a June 7 judgment passed by Justice Venkatesh of the Madras High Court. That 104-page judgement had established a landmark approach towards addressing the social issue of acceptance of the LGBTQIA+ community. It has also laid out some guidelines that could help shape the attitude of government authorities / public servants when dealing with the members of the LGBTQIA+ community. 

The October 13 advisory says, “It has been noted that the various textbooks of medical education, mainly for Forensic Medicine & Toxicology subject and Psychiatry subject contains unscientific information about virginity and also contain derogatory remarks against LGBTQIA+ Community and Homosexuals.”

The advisory forbids Medical Colleges and Universities from teaching subjects related to gender and sexuality in a derogatory/discriminatory/insulting manner. It further instructs authors to amend the textbooks according to “available scientific literature, guidelines issued by the Government, and directions passed by the Hon’ble Courts.”

The entire advisory may be read here: 

LGBTQ

This showcases the NMC's "walk-the-talk" approach to creating a sustainable safe-space for sexual minorities in India. An estimated 5 percent of the population falls in the LGBTQIA+ bracket, and stigma has often prevented them from getting quality medical attention and mental health support. 

This advisory, if followed in letter and spirit, will not only help clear-up doubts and fears about the community among medical professionals, but more importantly allow LGBTQIA+ persons to get correct medical attention. This also has far-reaching repercussions for the transgender and intersex communities, who were dealt a body-blow by the ignorant provisions of the Transgender Bill, that not only failed to distinguish between the concepts of sex, gender and sexuality, but also failed to respect one's say in the determination of their gender idenity and expression.

Related:

LGBTQIA+: Madras HC guidelines for sensitisation of stakeholders

When a judge allows himself to be counselled, justice can mean a transformation

Pride and priorities: Gov’t should create reliable support systems for LGBTQIA+ persons in crisis

Purge incorrect, derogatory references to LGBTQIA+ persons: National Medical Commission

NMC issues advisory to medical colleges and textbook authors; decision flows from a landmark June 2021 judgment by Madras HC

Camera
Representation Image

The National Medical Commission has issued an advisory pertaining to misinformation about and derogatory references to members of the Lesbian, Gay, Bi-sexual, Transgender, Queer, Intersex, Asexual+ (LGBTQIA+) community in medical textbooks.

The advisory dated October 13, flows from a June 7 judgment passed by Justice Venkatesh of the Madras High Court. That 104-page judgement had established a landmark approach towards addressing the social issue of acceptance of the LGBTQIA+ community. It has also laid out some guidelines that could help shape the attitude of government authorities / public servants when dealing with the members of the LGBTQIA+ community. 

The October 13 advisory says, “It has been noted that the various textbooks of medical education, mainly for Forensic Medicine & Toxicology subject and Psychiatry subject contains unscientific information about virginity and also contain derogatory remarks against LGBTQIA+ Community and Homosexuals.”

The advisory forbids Medical Colleges and Universities from teaching subjects related to gender and sexuality in a derogatory/discriminatory/insulting manner. It further instructs authors to amend the textbooks according to “available scientific literature, guidelines issued by the Government, and directions passed by the Hon’ble Courts.”

The entire advisory may be read here: 

LGBTQ

This showcases the NMC's "walk-the-talk" approach to creating a sustainable safe-space for sexual minorities in India. An estimated 5 percent of the population falls in the LGBTQIA+ bracket, and stigma has often prevented them from getting quality medical attention and mental health support. 

This advisory, if followed in letter and spirit, will not only help clear-up doubts and fears about the community among medical professionals, but more importantly allow LGBTQIA+ persons to get correct medical attention. This also has far-reaching repercussions for the transgender and intersex communities, who were dealt a body-blow by the ignorant provisions of the Transgender Bill, that not only failed to distinguish between the concepts of sex, gender and sexuality, but also failed to respect one's say in the determination of their gender idenity and expression.

Related:

LGBTQIA+: Madras HC guidelines for sensitisation of stakeholders

When a judge allows himself to be counselled, justice can mean a transformation

Pride and priorities: Gov’t should create reliable support systems for LGBTQIA+ persons in crisis

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Bikaner hostel rape case: Rajasthan court awards life sentence to main accused, convicts two others

A 17-year-old Dalit girl was found dead in a water tank at her hostel in Rajasthan’s Bikaner district in 2016

12 Oct 2021

POCSO CourtImage Courtesy:timesofindia.indiatimes.com

A POCSO court in Bikaner, Rajasthan has convicted all accused persons in the horrific rape of a 17-year-old Dalit girl, who was found dead at her hostel in Nokha, Bikaner in Rajasthan. The main accused Vijendra Singh (physical trainer in the institute), has been awarded the life sentence and the warden Pragya Shukla and the Principal, Priya Prateek Shukla of the Jain Adarsh Teacher Training Institute for girls have been imprisoned for 6 years.

Vijendra was already in judicial custody, and has been convicted of sections 305 (abetment of suicide of a child) 363 (punishment for kidnapping), 366 (Kidnapping, abducting or inducing woman to compel her marriage, etc.), 376 (rape) of the Indian Penal Code, sections 5 (aggravated penetrative sexual assault) and 6 (punishment of aggravated penetrative sexual assault) of The Protection of Children from Sexual Offences (POCSO) Act, 2012. He has also been convicted under the relevant sections of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 2012.

The warden, Pragya Shukla and the Principal, Priya Prateek Shukla (who are out on bail) have been held guilty of abetment of suicide and relevant sections of the POCSO and SC/ST (Prevention of Atrocities) Act.

The victim’s counsel, Bajrang Chhimpa, told SabrangIndia that the defense team tried to persuade the court to award less sentence time but he was convinced that the court would bring them to justice. He added, “There were about 34 witnesses that were examined. This hearing has taken 5 years, 6 months and 12 days.”

Background of the case

The 17-year-old Dalit girl, who was studying to be a teacher, was raped and murdered in 2016. On the morning of March 29, her body was found in the water tank of her hostel under suspicious conditions. The Nokha police officials took her body in a municipal garbage carrying vehicle (tractor) without video-graphing it.

As per the FIR filed by her parents, there were only four girls at the hostel, as all the other girls had gone home. A day before, on the evening of March 28, at 8 P.M, she had called her father and told him that her warden, Priya Shukla, had sent her to the trainer Vijendra Singh’s room, with the excuse of cleaning the hostel.

The victim’s family members had submitted a complaint to the police accusing the teacher Vijendra Singh of raping her, killing her and then discarding her body in the water tank. Thereafter, the story of the suicide was concocted in a bid to mislead the administration.

The investigating officer, Satnam Singh had alleged that they found that on the night of March 28, 2016, at around 2 A.M, the victim was found to be in Vijendra’s room. Both had admitted to their ‘mistake’ and had also written an ‘apology.’ The IO also said that the knowledge of their relationship had come to light 2 to 3 months before her death. The IO said that we are trying to get details of this from the mobile phones. 

As per a SabrangIndia report, investigation was conducted on April 1, 2016 by a Rajasthan based Fact Finding Team of the National Human Rights Organisation (NHRO) that concluded that the victim had not died by suicide. Their findings were:

1. If after the March 28, 2016 incident, Priya Shukla, her husband and other staff members had --- instead of shrouding it in secrecy (and only believing the PT Teacher Vijendra Singh’s version) immediately informed responsible persons from institution and the police, a death could have been avoided.

2. The allocation of a room for a male PT Teacher within a Girls Hostel is a grave act of irresponsibility on the part of the administration and management.

3. On March 29, 2016 at about 7 A.M when the victim’s absence was intimated to Priya Shukla for the second time, her duties as a hostel warden required that she should have immediately informed responsible authorities of the institution, including the principal. Her not doing so raises serious questions and raises grave suspicion(s).

4. The water tank in which the deceased was found dead has a depth of six feet. Significantly, the tank is fully covered; only a 1.5-foot X 1.5-foot hole exists which has a lid on top.  The lid has a hole for a lock and an old lock was seen by the team on the lid. But it was not locked. Not locking the tank is an act of grave responsibility on the part of the warden, principal and chairman of the institution.

5. From the size of the opening on the tank, it is highly unlikely that a healthy young woman of 5 foot four could have entered inside at all.

6. The fact that the police did not record the recovery of the body through videography deepens suspicions. Neither was a panchnama of the body performed.

7. After the body was removed, press reporter Pavan Kumar himself took photos of the body. There were injuries on the body and blood was oozing out of one ear. Bleeding from the ear in a death supposedly caused by drowning does not add up and further raises questions and suspicions.

8. The victim was from a poor Dalit family who had no political backing and support. There is every chance that the authorities and chairman of the Jain Adarsh Vidyalaya will use clout and other means to ensure that the case does not read fruition and justice is not delivered.

Related:

Delta Meghwal’s Death: Role of Warden and Others Suspicious
The Real Story Behind the Rape and Killing of Dalit Girl Student, Delta Meghwal

Bikaner hostel rape case: Rajasthan court awards life sentence to main accused, convicts two others

A 17-year-old Dalit girl was found dead in a water tank at her hostel in Rajasthan’s Bikaner district in 2016

POCSO CourtImage Courtesy:timesofindia.indiatimes.com

A POCSO court in Bikaner, Rajasthan has convicted all accused persons in the horrific rape of a 17-year-old Dalit girl, who was found dead at her hostel in Nokha, Bikaner in Rajasthan. The main accused Vijendra Singh (physical trainer in the institute), has been awarded the life sentence and the warden Pragya Shukla and the Principal, Priya Prateek Shukla of the Jain Adarsh Teacher Training Institute for girls have been imprisoned for 6 years.

Vijendra was already in judicial custody, and has been convicted of sections 305 (abetment of suicide of a child) 363 (punishment for kidnapping), 366 (Kidnapping, abducting or inducing woman to compel her marriage, etc.), 376 (rape) of the Indian Penal Code, sections 5 (aggravated penetrative sexual assault) and 6 (punishment of aggravated penetrative sexual assault) of The Protection of Children from Sexual Offences (POCSO) Act, 2012. He has also been convicted under the relevant sections of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 2012.

The warden, Pragya Shukla and the Principal, Priya Prateek Shukla (who are out on bail) have been held guilty of abetment of suicide and relevant sections of the POCSO and SC/ST (Prevention of Atrocities) Act.

The victim’s counsel, Bajrang Chhimpa, told SabrangIndia that the defense team tried to persuade the court to award less sentence time but he was convinced that the court would bring them to justice. He added, “There were about 34 witnesses that were examined. This hearing has taken 5 years, 6 months and 12 days.”

Background of the case

The 17-year-old Dalit girl, who was studying to be a teacher, was raped and murdered in 2016. On the morning of March 29, her body was found in the water tank of her hostel under suspicious conditions. The Nokha police officials took her body in a municipal garbage carrying vehicle (tractor) without video-graphing it.

As per the FIR filed by her parents, there were only four girls at the hostel, as all the other girls had gone home. A day before, on the evening of March 28, at 8 P.M, she had called her father and told him that her warden, Priya Shukla, had sent her to the trainer Vijendra Singh’s room, with the excuse of cleaning the hostel.

The victim’s family members had submitted a complaint to the police accusing the teacher Vijendra Singh of raping her, killing her and then discarding her body in the water tank. Thereafter, the story of the suicide was concocted in a bid to mislead the administration.

The investigating officer, Satnam Singh had alleged that they found that on the night of March 28, 2016, at around 2 A.M, the victim was found to be in Vijendra’s room. Both had admitted to their ‘mistake’ and had also written an ‘apology.’ The IO also said that the knowledge of their relationship had come to light 2 to 3 months before her death. The IO said that we are trying to get details of this from the mobile phones. 

As per a SabrangIndia report, investigation was conducted on April 1, 2016 by a Rajasthan based Fact Finding Team of the National Human Rights Organisation (NHRO) that concluded that the victim had not died by suicide. Their findings were:

1. If after the March 28, 2016 incident, Priya Shukla, her husband and other staff members had --- instead of shrouding it in secrecy (and only believing the PT Teacher Vijendra Singh’s version) immediately informed responsible persons from institution and the police, a death could have been avoided.

2. The allocation of a room for a male PT Teacher within a Girls Hostel is a grave act of irresponsibility on the part of the administration and management.

3. On March 29, 2016 at about 7 A.M when the victim’s absence was intimated to Priya Shukla for the second time, her duties as a hostel warden required that she should have immediately informed responsible authorities of the institution, including the principal. Her not doing so raises serious questions and raises grave suspicion(s).

4. The water tank in which the deceased was found dead has a depth of six feet. Significantly, the tank is fully covered; only a 1.5-foot X 1.5-foot hole exists which has a lid on top.  The lid has a hole for a lock and an old lock was seen by the team on the lid. But it was not locked. Not locking the tank is an act of grave responsibility on the part of the warden, principal and chairman of the institution.

5. From the size of the opening on the tank, it is highly unlikely that a healthy young woman of 5 foot four could have entered inside at all.

6. The fact that the police did not record the recovery of the body through videography deepens suspicions. Neither was a panchnama of the body performed.

7. After the body was removed, press reporter Pavan Kumar himself took photos of the body. There were injuries on the body and blood was oozing out of one ear. Bleeding from the ear in a death supposedly caused by drowning does not add up and further raises questions and suspicions.

8. The victim was from a poor Dalit family who had no political backing and support. There is every chance that the authorities and chairman of the Jain Adarsh Vidyalaya will use clout and other means to ensure that the case does not read fruition and justice is not delivered.

Related:

Delta Meghwal’s Death: Role of Warden and Others Suspicious
The Real Story Behind the Rape and Killing of Dalit Girl Student, Delta Meghwal

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Resist before Delhi Police makes sexual assault their SoP for protesters: AISA

Students' group condemns Delhi police for allegedly sexually assaulting women who had gathered outside Home Minister Amit Shah’s house to protest the killing of farmers in Lakhimpur Kheri

12 Oct 2021

All India Students’ Association (AISA)

Delhi’s All India Students’ Association (AISA) condemned the alleged sexual assault by police personnel of two women protesting the Lakhimpur Kheri killings outside Home Minister Amit Shah’s residence on October 10, 2021.

“It is a matter of shame and humiliation that students in Delhi, who are prone to protesting, are specifically targeted by the police, that too outside Shah’s house,” AISA Co-Vice President Kawalpreet Kaur told SabrangIndia.

On Monday, around 20 protesters gathered outside Shah’s house to demand the dismissal of Minister of State for Home Affairs Ajay Mishra and ensure a fair trial against his son Ashish for allegedly mowing down and shooting at four farmers and a local journalist in Uttar Pradesh. However, before protesters could begin their demonstration, local police detained them and took them to the Mandir Marg police station.

During this time two women students alleged that women police personnel attempted to lift their clothes and kick their genitals, while being dragged on the road. Inside one of the three police buses, the police continued the assault.

“We will show you your place,” one of the survivors recalled the police saying to them, as per an AISA press release. This sexual assault was compounded by the fact that it was performed in front of male Delhi Police officers.

“Disrobing and sexual assault are often meted out by police forces in India to women and men from marginalised communities to shame and humiliate them. The Justice Verma Committee too had taken note of such custodial sexual violence and recommended several safeguards against it – none of which were ever implemented,” said the AISA.

All India Students’ Association (AISA)

Kawalpreet Kaur demanded that the Station House Officer of the Mandir Marg police should resign immediately for this unacceptable behaviour. AISA demanded that ACP Chanakyapuri, Pragya Anand who allegedly instructed officers to assault women protestors, be sacked and all perpetrators be suspended.

Further, AISA Co-Vice President Ranvijay told SabrangIndia that police behaviour towards protesters has worsened over the years, much like “BJP goons.” Even at the police station, students were not given medical attention. Similarly, they were not allowed to lodge their complaints against concerned police officers.

“We are preparing a statement and will send it to Delhi Commission for Women Chairperson Swati Maliwal,” said Ranvijay.

AISA stated that the manner in which the two women suffered the ordeal proves that these were not isolated acts committed by rogue Delhi Police personnel but specific instructions to “show women protesters their place.” Women all over India reject this “place” of humiliation and sexual assault by the boots of power, said AISA.

Regarding Mishra’s post as an officer, Kawalpreet Kaur said, “Ashish mowed down farmers. Why is his father still in the Cabinet? The actions on Monday show that they don’t want any kind of protest. It is obvious that justice cannot be meted out to farmers if Ajay Mishra remains in his post.”

Related:

After farmers, now protesting students face police brutality
Maharashtra Bandh: Traffic halts as protesters pay respects to farmer martyrs
Lakhimpur Kheri: Accused Ashish Mishra arrested on Saturday
Lakhimpur Kheri farmer deaths: SKM announces a slew of protests from Oct 12
Lakhimpur Kheri: How does a journalist’s death not make it to the headlines?

Resist before Delhi Police makes sexual assault their SoP for protesters: AISA

Students' group condemns Delhi police for allegedly sexually assaulting women who had gathered outside Home Minister Amit Shah’s house to protest the killing of farmers in Lakhimpur Kheri

All India Students’ Association (AISA)

Delhi’s All India Students’ Association (AISA) condemned the alleged sexual assault by police personnel of two women protesting the Lakhimpur Kheri killings outside Home Minister Amit Shah’s residence on October 10, 2021.

“It is a matter of shame and humiliation that students in Delhi, who are prone to protesting, are specifically targeted by the police, that too outside Shah’s house,” AISA Co-Vice President Kawalpreet Kaur told SabrangIndia.

On Monday, around 20 protesters gathered outside Shah’s house to demand the dismissal of Minister of State for Home Affairs Ajay Mishra and ensure a fair trial against his son Ashish for allegedly mowing down and shooting at four farmers and a local journalist in Uttar Pradesh. However, before protesters could begin their demonstration, local police detained them and took them to the Mandir Marg police station.

During this time two women students alleged that women police personnel attempted to lift their clothes and kick their genitals, while being dragged on the road. Inside one of the three police buses, the police continued the assault.

“We will show you your place,” one of the survivors recalled the police saying to them, as per an AISA press release. This sexual assault was compounded by the fact that it was performed in front of male Delhi Police officers.

“Disrobing and sexual assault are often meted out by police forces in India to women and men from marginalised communities to shame and humiliate them. The Justice Verma Committee too had taken note of such custodial sexual violence and recommended several safeguards against it – none of which were ever implemented,” said the AISA.

All India Students’ Association (AISA)

Kawalpreet Kaur demanded that the Station House Officer of the Mandir Marg police should resign immediately for this unacceptable behaviour. AISA demanded that ACP Chanakyapuri, Pragya Anand who allegedly instructed officers to assault women protestors, be sacked and all perpetrators be suspended.

Further, AISA Co-Vice President Ranvijay told SabrangIndia that police behaviour towards protesters has worsened over the years, much like “BJP goons.” Even at the police station, students were not given medical attention. Similarly, they were not allowed to lodge their complaints against concerned police officers.

“We are preparing a statement and will send it to Delhi Commission for Women Chairperson Swati Maliwal,” said Ranvijay.

AISA stated that the manner in which the two women suffered the ordeal proves that these were not isolated acts committed by rogue Delhi Police personnel but specific instructions to “show women protesters their place.” Women all over India reject this “place” of humiliation and sexual assault by the boots of power, said AISA.

Regarding Mishra’s post as an officer, Kawalpreet Kaur said, “Ashish mowed down farmers. Why is his father still in the Cabinet? The actions on Monday show that they don’t want any kind of protest. It is obvious that justice cannot be meted out to farmers if Ajay Mishra remains in his post.”

Related:

After farmers, now protesting students face police brutality
Maharashtra Bandh: Traffic halts as protesters pay respects to farmer martyrs
Lakhimpur Kheri: Accused Ashish Mishra arrested on Saturday
Lakhimpur Kheri farmer deaths: SKM announces a slew of protests from Oct 12
Lakhimpur Kheri: How does a journalist’s death not make it to the headlines?

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Can minor’s consent be considered in POCSO cases?

The Gujarat High Court sets aside conviction of rape under POCSO Act, as the minor girl and the convict were married and girl had borne 2 children

08 Oct 2021

posco act

The Gujarat High Court has reversed the conviction in a case of rape of a 15-year-old minor girl, taking into consideration that the minor girl admittedly ran away from home and consented to the sexual acts. The bench of Justice Paresh Upadhyay observed that “Non-interference by this Court would reduce the lady and two children without shelter of husband / father, which in no way would be in furtherance of justice.”

The appeal was filed against a judgement passed by Sessions Court Junagadh on July 15, convicting the appellant under section 376 (rape) of IPC as well as sections 4 (penetrative sexual assault), 6 (aggravated penetrative sexual assault), 8 (sexual assault) and 12 (sexual harassment) of the Protection of the Children from Sexual Offences (POCSO) Act. He was sentenced to 10 years of rigorous imprisonment and fined Rs. 5,000. 

The counsel for the appellant submitted that he, and the victim are husband and wife, and they have borne two children, a fact undisputed by either of them. He submitted that the conviction is unsustainable and the same be quashed and set aside.

The court considered certain facts:

  • The appellant and victim are in a relationship.
  • The victim, on her own, had walked out of home with the appellant.
  • The appellant and the victim stayed together since then at the house of the appellant, as husband and wife.
  • Out of their relationship, she has given birth to two children, one on June 29, 2019 and second on January 22, 2021.
  • The victim deposed before the court that the appellant has kept physical relation with her consent.

The court seemed perturbed by the fact that despite they have two children, and victim stating that physical relations were out of her consent, he has been convicted for rape. The court pointed out that the Sessions Court was also conscious of this fact that they are living together and thus any compensation / assistance received from any of the Government(s) need to be refunded.

The court was thus inclined to set aside the conviction order. The court said, “It is under these circumstances, this Court finds that the conviction recorded by the Sessions Court needs to be set aside. Standing at the place of law enforcement agencies, in the peculiar facts of the case, this can be termed as an offence under the Prohibition of Child Marriage Act, which is observed more in breach than in compliance, more particularly in the lower strata of society.”

The order may be read here:

The legal standpoint

While the high court’s order failed to mention any legal points, it is important to look at where the law, especially the POCSO Act stands. The many questions that arise after the court’s verdict to set aside the conviction include, whether an adult male can have sexual relationships with a minor if she gives her consent? In that case is a minor’s consent valid in the eyes of law? Can the law make concessions and release a person who is an offender in the eyes of the law because there happens to be a relationship between them after the offence?

The minor girl was a little over 15 years old when the incident took place. Through this order, it is unclear how the crime was uncovered and who filed the complaint. Whether, the incident complained of was with the victim’s consent.

Nevertheless, first it is to be considered whether such consent is valid in the first place. If you search for the word “consent” in the entire POCSO Act, you will find it in only two places, and neither are relevant to the offences. In fact, in section 41 of the Act it is mentioned that it will not be considered to be an offence under POCSO if a medical examination is done on the minor with the consent of the parents. This means that the law would punish any medical examination that fits in the definition of offences under the Act, if they are carried out without the consent of the parent or guardian. In this case, would it be permissible to take into consideration the consent of the minor in case of an actual sexual act? Certainly, the law does not provide for the same. It would be to err on the side of the law, if an interpretation like such is made to equate a minor’s consent in sexual activity with the consent of an adult in sexual activity.

In fact, under the Contracts Act as well, a minor’s consent is considered to be invalid. In that case would a minor’s consent in such a grave situation be considered good and valid in the eyes of the law? The answer to that must be in the negative.

If the legislature intended to take into account the minor’s consent, it would have expressly stated so in the Act. Also, if the relationship between the minor and the offender were to be taken into account to determine whether he/she is guilty of the offence, the same would have been provided.

In the absence of either of these provisions under the POCSO Act, to acquit a man who has maintained sexual relationships with a 15 year old girl (who is now a 19 year old) where the minor girl claims that the relationship was consensual amounts to setting a wrong and dangerous precedent; not only because it is in contravention to the law but also because there could be cases where minor girls are coerced to admit consent before the court of law.

Thus, this verdict of the Gujarat High Court effectively acquitting the convict without providing any legal reasoning and merely on the ground that the girl and the children borne of their relationship would be stranded, could be seen by some as seemingly bad in law.

Related:

Over 1.28 lakh cases of crime against children in 2020, yet there is eerie silence on issue 

A year on, Hathras victim’s family awaits a house, pension and employment

Two years after she was found dead, family of Mainpuri school girl awaits justice

Can minor’s consent be considered in POCSO cases?

The Gujarat High Court sets aside conviction of rape under POCSO Act, as the minor girl and the convict were married and girl had borne 2 children

posco act

The Gujarat High Court has reversed the conviction in a case of rape of a 15-year-old minor girl, taking into consideration that the minor girl admittedly ran away from home and consented to the sexual acts. The bench of Justice Paresh Upadhyay observed that “Non-interference by this Court would reduce the lady and two children without shelter of husband / father, which in no way would be in furtherance of justice.”

The appeal was filed against a judgement passed by Sessions Court Junagadh on July 15, convicting the appellant under section 376 (rape) of IPC as well as sections 4 (penetrative sexual assault), 6 (aggravated penetrative sexual assault), 8 (sexual assault) and 12 (sexual harassment) of the Protection of the Children from Sexual Offences (POCSO) Act. He was sentenced to 10 years of rigorous imprisonment and fined Rs. 5,000. 

The counsel for the appellant submitted that he, and the victim are husband and wife, and they have borne two children, a fact undisputed by either of them. He submitted that the conviction is unsustainable and the same be quashed and set aside.

The court considered certain facts:

  • The appellant and victim are in a relationship.
  • The victim, on her own, had walked out of home with the appellant.
  • The appellant and the victim stayed together since then at the house of the appellant, as husband and wife.
  • Out of their relationship, she has given birth to two children, one on June 29, 2019 and second on January 22, 2021.
  • The victim deposed before the court that the appellant has kept physical relation with her consent.

The court seemed perturbed by the fact that despite they have two children, and victim stating that physical relations were out of her consent, he has been convicted for rape. The court pointed out that the Sessions Court was also conscious of this fact that they are living together and thus any compensation / assistance received from any of the Government(s) need to be refunded.

The court was thus inclined to set aside the conviction order. The court said, “It is under these circumstances, this Court finds that the conviction recorded by the Sessions Court needs to be set aside. Standing at the place of law enforcement agencies, in the peculiar facts of the case, this can be termed as an offence under the Prohibition of Child Marriage Act, which is observed more in breach than in compliance, more particularly in the lower strata of society.”

The order may be read here:

The legal standpoint

While the high court’s order failed to mention any legal points, it is important to look at where the law, especially the POCSO Act stands. The many questions that arise after the court’s verdict to set aside the conviction include, whether an adult male can have sexual relationships with a minor if she gives her consent? In that case is a minor’s consent valid in the eyes of law? Can the law make concessions and release a person who is an offender in the eyes of the law because there happens to be a relationship between them after the offence?

The minor girl was a little over 15 years old when the incident took place. Through this order, it is unclear how the crime was uncovered and who filed the complaint. Whether, the incident complained of was with the victim’s consent.

Nevertheless, first it is to be considered whether such consent is valid in the first place. If you search for the word “consent” in the entire POCSO Act, you will find it in only two places, and neither are relevant to the offences. In fact, in section 41 of the Act it is mentioned that it will not be considered to be an offence under POCSO if a medical examination is done on the minor with the consent of the parents. This means that the law would punish any medical examination that fits in the definition of offences under the Act, if they are carried out without the consent of the parent or guardian. In this case, would it be permissible to take into consideration the consent of the minor in case of an actual sexual act? Certainly, the law does not provide for the same. It would be to err on the side of the law, if an interpretation like such is made to equate a minor’s consent in sexual activity with the consent of an adult in sexual activity.

In fact, under the Contracts Act as well, a minor’s consent is considered to be invalid. In that case would a minor’s consent in such a grave situation be considered good and valid in the eyes of the law? The answer to that must be in the negative.

If the legislature intended to take into account the minor’s consent, it would have expressly stated so in the Act. Also, if the relationship between the minor and the offender were to be taken into account to determine whether he/she is guilty of the offence, the same would have been provided.

In the absence of either of these provisions under the POCSO Act, to acquit a man who has maintained sexual relationships with a 15 year old girl (who is now a 19 year old) where the minor girl claims that the relationship was consensual amounts to setting a wrong and dangerous precedent; not only because it is in contravention to the law but also because there could be cases where minor girls are coerced to admit consent before the court of law.

Thus, this verdict of the Gujarat High Court effectively acquitting the convict without providing any legal reasoning and merely on the ground that the girl and the children borne of their relationship would be stranded, could be seen by some as seemingly bad in law.

Related:

Over 1.28 lakh cases of crime against children in 2020, yet there is eerie silence on issue 

A year on, Hathras victim’s family awaits a house, pension and employment

Two years after she was found dead, family of Mainpuri school girl awaits justice

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Bombay HC orders protection of identities in POSH proceedings

The court has said that cases of sexual harassment at workplace will not be reported in the media without prior approval; order to not be passed in open court

28 Sep 2021

sexual

Justice Gautam Patel has set out guidelines for the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) and Rules, which include protecting the identities of the parties, and restriction on reporting of judgments without approval.

Justice Patel said, “It is imperative to protect the identities of the parties from disclosure, even accidental disclosure, in these proceedings. This is in the interest of both sides. There appear to be no established guidelines so far in such matters.”

The court has directed that:

1. The order sheet will not have the name of the parties;

2. In the body of any order, there will be no mention of any personally identifiable information such as email ids, mobile or telephone numbers, addresses etc. No witness’s names will be mentioned, nor will their addresses be noted;

3. Orders/judgments on merits under the POSH Act will not be uploaded;

4. All orders and judgments will be delivered in private, that is to say, not pronounced in open court but only in Chambers or in-camera.

Justice Patel further recorded in his order, “Both sides and all parties and advocates, as also witnesses, are forbidden from disclosing the contents of any order, judgment or filing to the media or publishing any such material in any mode or fashion by any means, including social media, without specific leave of the court.”

The court also directed that the registry will not permit anyone other than the Advocate-on-Record with a current and valid Vakalatnama to take inspection or copies of any filing or order. He also said that the entire record is to be kept sealed and is not to be given to any person without an order of the court. “Witness depositions will not be uploaded under any circumstances”, said the court.

Lastly, the court has also warned people and media persons of contempt, if the guidelines are not strictly complied with.

Concerns from the order 

While privacy is a fundamental right and must be protected against impingement, public awareness of the outcome of such cases cannot be ignored. The order encourages censorship in the name of identity protection.

Other kinds of proceedings related to sexual crimes before lower courts, Special POCSO courts, fast track courts do not require the courts permission for reportage. If such criminal hearings of rape and other offences under Indian Penal Code and the Protection of Children from Sexual Offences (POCSO) Act, 2012, are allowed to be reported, this exception only for POSH cases is needless.

By preventing both sides from mentioning details of an order or speaking about it in the media or social media, the guidelines hinder one’s freedom of expression. Since such guidelines shield someone’s identity, there is a likelihood that serial offenders may misuse this and can also lay grounds for defamation suits against women. The case of Mobashar Jawed Akbar vs Priya Ramani (Complaint case number 5 of 2019), is a recent example where the former politician had filed a criminal defamation case against the journalist who levelled sexual harassment charges against him.

Access to records creates another problem. The court has directed the registry to not provide case records to any person apart from lawyers, and the entire record is to be kept sealed and is not to be given to any person without an order of the court. This direction will not allow companies’ human resource departments to carry out background checks before hiring an individual.

If the entire intention behind the guidelines is to minimise false cases, it is inadequate since the same shield of anonymity is not allowed for other serious charges like rape under the Indian Penal Code, sedition or any anti-terror and preventive detention laws.

Locking away information about a convicted sex malefactor, defeats the purpose of such legislations that are meant to aid the survivors.

The order of the Bombay High Court as also the Order of the Delhi Court in Mobashar Jawed Akbar vs Priya Ramani may both be read here:

 

 

Related:

391 complaints of sexual harassment at workplace received from Central Ministries: Government

I feel vindicated: Priya Ramani acquitted in MJ Akbar defamation case

On Akbar and the #MeToo Movement

Delhi HC upholds dismissal of Judge for workplace sexual harassment

Bombay HC orders protection of identities in POSH proceedings

The court has said that cases of sexual harassment at workplace will not be reported in the media without prior approval; order to not be passed in open court

sexual

Justice Gautam Patel has set out guidelines for the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) and Rules, which include protecting the identities of the parties, and restriction on reporting of judgments without approval.

Justice Patel said, “It is imperative to protect the identities of the parties from disclosure, even accidental disclosure, in these proceedings. This is in the interest of both sides. There appear to be no established guidelines so far in such matters.”

The court has directed that:

1. The order sheet will not have the name of the parties;

2. In the body of any order, there will be no mention of any personally identifiable information such as email ids, mobile or telephone numbers, addresses etc. No witness’s names will be mentioned, nor will their addresses be noted;

3. Orders/judgments on merits under the POSH Act will not be uploaded;

4. All orders and judgments will be delivered in private, that is to say, not pronounced in open court but only in Chambers or in-camera.

Justice Patel further recorded in his order, “Both sides and all parties and advocates, as also witnesses, are forbidden from disclosing the contents of any order, judgment or filing to the media or publishing any such material in any mode or fashion by any means, including social media, without specific leave of the court.”

The court also directed that the registry will not permit anyone other than the Advocate-on-Record with a current and valid Vakalatnama to take inspection or copies of any filing or order. He also said that the entire record is to be kept sealed and is not to be given to any person without an order of the court. “Witness depositions will not be uploaded under any circumstances”, said the court.

Lastly, the court has also warned people and media persons of contempt, if the guidelines are not strictly complied with.

Concerns from the order 

While privacy is a fundamental right and must be protected against impingement, public awareness of the outcome of such cases cannot be ignored. The order encourages censorship in the name of identity protection.

Other kinds of proceedings related to sexual crimes before lower courts, Special POCSO courts, fast track courts do not require the courts permission for reportage. If such criminal hearings of rape and other offences under Indian Penal Code and the Protection of Children from Sexual Offences (POCSO) Act, 2012, are allowed to be reported, this exception only for POSH cases is needless.

By preventing both sides from mentioning details of an order or speaking about it in the media or social media, the guidelines hinder one’s freedom of expression. Since such guidelines shield someone’s identity, there is a likelihood that serial offenders may misuse this and can also lay grounds for defamation suits against women. The case of Mobashar Jawed Akbar vs Priya Ramani (Complaint case number 5 of 2019), is a recent example where the former politician had filed a criminal defamation case against the journalist who levelled sexual harassment charges against him.

Access to records creates another problem. The court has directed the registry to not provide case records to any person apart from lawyers, and the entire record is to be kept sealed and is not to be given to any person without an order of the court. This direction will not allow companies’ human resource departments to carry out background checks before hiring an individual.

If the entire intention behind the guidelines is to minimise false cases, it is inadequate since the same shield of anonymity is not allowed for other serious charges like rape under the Indian Penal Code, sedition or any anti-terror and preventive detention laws.

Locking away information about a convicted sex malefactor, defeats the purpose of such legislations that are meant to aid the survivors.

The order of the Bombay High Court as also the Order of the Delhi Court in Mobashar Jawed Akbar vs Priya Ramani may both be read here:

 

 

Related:

391 complaints of sexual harassment at workplace received from Central Ministries: Government

I feel vindicated: Priya Ramani acquitted in MJ Akbar defamation case

On Akbar and the #MeToo Movement

Delhi HC upholds dismissal of Judge for workplace sexual harassment

Related Articles


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Understanding the ‘Haritha Moment’: The Gender-ed Turn in Kerala Muslim Politics

27 Sep 2021

N. P. Ashley

Kerala Muslims, arguably the most powerful Muslim community of the country and one of the most vivacious and dominant communities of the state, are noted in different ways: they are part of the globalised middle class in a way no other Muslim community in the country is, aided both by gulf migration and communitarian social development. While the arrival of pan-national, antagonistic Hindu majoritarianism did throw the community off its rhythm, causing cynical right wing tendencies, the mainstream Muslim political and religious organisations from conservatives to reformists as well as the centrist mass Muslim party, the Indian Union Muslim League, very confidently denounced and gave no space to Islamist majoritarianism, opposing it both theoretically and in its violent manifestations starting from the bloody violence of Marad (2003) to the chopping of the hand of professor in Kottayam’s New Man College (2010).

But the rise and rise of Hindutwa from 2014 through 2019 have taken the fear in the mind of the Muslim community to deeper levels. Muslim communitarian politics of the IUML-kind looked like it reached a dead end, lacking any solid theoretically clear foundation or committed leaders who were able to push the agenda of social development and inter community harmony in the new givens. Like most other parties in Kerala, the current leaders were happy consolidating their base and reaping the benefits of the work done by earlier leaders and this meant adjustments of convenience for the electorate without ideological integrity.

Though quite effective in opposing the idea of a theocratic state within the community, due to the absence of a unifying and rigorously ethical frame like constitutional nationalism, mainstream Muslim organizations seemed to become repetitive, if not outright anachronistic, in addressing the new social, political and ethical challenges. Conservatism and lack of imagination also made it impossible for them to integrate newer social energies that women brought in. Political Islamists, demographically a micro-minority and electorally insignificant, became a visible presence in the social media but they were genetically incapable of inclusivist, egalitarian politics.

2_Fathima ThahliyaFathima Thahliya

 

Student power that seemed to shake India, starting from 2016, found no organic expression in Kerala, as its higher education was completely hollowed out by a corrupt nexus of leadership of dominant communities, wealthy businessmen and political party machinery. The youngsters in the community, active in literary, cultural, educational, technological and social spheres, found no conversation possible with the discourses in the intra-community political or religious spheres.  For any observer, the community, rather than spreading its historical gains and extending leadership outside the state, seemed to be shrinking in confidence so much that it was becoming a dead end from where debates became endlessly recycled. In places the community is powerful, this could even manifest as traits of majoritarianism. Verbal conflicts between Islamophobes and Islamists were continuously rendering the majority of Muslims invisible and helpless.

It is against this backdrop that one could start reading the developments in the Indian Union Muslim League and its female student wing, “Haritha” (Haritha, in Malayalam, is the adjectival form of the colour green, a dominant colour of IUML, which could also be a proper noun for girls, most likely among Hindus).   

What has now become a sensational public conversation on gender in the state and the community politics, started as an intra-party fight.

Haritha was formed in 2012 to provide space of collectivization to the female students in campuses of Kerala, but its participation in electoral politics was through the MSF, limiting it to a tributary of sorts. The tensions started when the parent body IUML and the electoral face MSF, both governed almost entirely by men, decided to interfere in the affairs of Haritha.

Some men in the MSF bye-passed established procedures and formed one of the district committees for Haritha, without consulting Haritha’s state body. The state leadership of Haritha was quite unhappy about it. In a meeting of the MSF state committee held on 05 July 2021, Haritha State General Secretary and a member of the MSF state committee, Najma Thabsheera, wanted to present their version of the issue. P K Navas, the State President of the MSF passed a comment in the meeting that “every prostitute will have her version; let them voice it”. This, and later alleged character assassination by MSF Malappuram District General Secretary V Abdul Vahab, understandably outraged the Haritha state committee and they rose up in arms for strict action against these office bearers. The MSF leadership and their senior leadership in the IUML, appallingly, decided to freeze the Haritha state committee, rather than giving exemplary punishment to those who slut-shamed and character assassinated colleagues.  When denied justice from the senior leadership, the young women in the Haritha state leadership approached the constitutional body, the Women’s Commission of the state. This led to the dismissal of the state body of Haritha. The national Vice President of IUML’s student wing, Muslim Student Front (MSF), Fathima Thahliya, the founder President of Haritha and a vocal social media spokesperson on the IUML side, was expelled for supporting the dismissed Haritha state committee. The controversy raged when the dismissed committee, all ten of them together, took to the media by organizing a press meet and by giving interviews to the press, making it a major conversation on “malestream” politics and the space of women.

Making Sense of Haritha

The young women of Haritha belong to Gen Z, the generation born after 1992 with an average age of 25-26 and most of the names are new and unfamiliar in the old Kerala tradition: Mufeeda Tasni, Naja Tabsheera, Shamna V.K., Juvairiya, Mina Farzana, Farha, Bareera Thaha, Anagha (she is the Hindu presence in the state committee), Faseela VP and Ashida.  Mufeeda Tasni, the ex-President, is a researcher in Women’s Studies, Najma Thabsheera is a practising advocate and others are either advocates, or researchers in social sciences and humanities from colleges and universities across Kerala. Mina Farzana was in the news some years ago as the first female student union president of Feroke College, a 1948-established institution, famed as the Aligarh of south India. These female students bring in the generation’s post-globalization set of values, a disciplinarian terminology and sensibility into campus politics.

Haritha was only a female student wing without electoral presence and it is likely that the men weren’t particularly attentive to what was happening in their female wing, as it was, in the end, going to contribute to the MSF which men were in charge of.  They must have found such an entity necessary for widening the student base, given the burgeoning female population in liberal arts and science colleges, outnumbering male students by miles and within that the abundance of Muslim female students. These young women used the definitive female space, but one that is away from regular campus confrontations, to cultivate a collective spirit of sorority. In a place like Kerala, where student politics is exhausted as miniatures of the mainstream political parties, this marginal space could well have been a possibility.  

The watershed moment for Haritha, remembers Najma Thabsheera, was Shaheen Bagh and the campus protests against the Citizenship Amendment Act. The women of Shaheen Bagh, who performed Indian constitutional nationalism on the street, in an attempt to reclaim the republic’s foundational values, demonstrated how imaginatively women could intervene in public. The CAA protests, Najma believes, changed the largely male nature of student protests of Kerala, where loud sloganeering and police violence including lathi charge usually make women take a side seat. These protests were about songs and poems, with young men and women coming together against what they perceived was a grave injustice to the commitment Indian people made to themselves. Najma who got married in February 2020, demanded, as her right is, that her mehr, the obligation to the women during a wedding, be two things, says she in a recent interview with The Cue: a copy of the constitution of India and a copy of the Holy Quran, a unifying step that she says was inspired by Shaheen Bagh- this outlook also undoes the fake contradiction both Hindutwa majoritarians and Muslim patriarchy have tried to create between India and Islam. This constitutional nationalism would work within a party like IUML, where there is no ideological baggage against female emancipation or communal harmony, an aspect female outfits of theoretically patriarchal and majoritarian Islamist organizations could never have.  

The 2009, V. S. Achuthanandan government decision to reserve 50% of the seats in the local body elections to women was another game changer. In the initial years, men brought in their wives or women they could control as candidates and some of the posters, especially from the Muslim community, had the photo of the husband while the name and emblem were of the wife, the actual candidate! When young women from campus politics got the opportunity to work in the electioneering in their neighbourhoods, with some of them going onto become candidates, this new space allowed them to engage with the world outside the secluded space of campuses.

3_Mufeeda Tasni  Najma Thabsheera, dismissed President and   General Secretary of Haritha State CommitteeMufeeda Tasni  Najma Thabsheera, dismissed President and   General Secretary of Haritha State Committee

 

Haritha Claims and Reclaims

One of the campaigns that Haritha ran in its initial years was “All Spaces are Ours Too”, a definitive feminist claim. They took up the IUML notion of “honourable existence” and refilled it with the social content of gender and in that they liberated the women who were made visible in the communitarian debate, not just in the Muslim community but across communities of Kerala. Instead of settling a gender-based verbal violence within the organization, as the male logic would often have women do in the case of domestic violence, they took the matter to the Women’s Commission, claiming constitutional options. Fathima Thahliya, in an interview with True Copy Think, argued that the point is not how many pieces of bread women get; but to see that women are part of the process of how to distribute the bread will be defined. The Haritha team states they understand minority politics in a broad and inclusive sense: minorities  should not be limited to religious minorities alone but also include subaltern groups such as dalits and all other minorities, be that linguistic, sexual or ethnic.  

These young women are reclaiming certain traditions: they are constantly taking the name of Gauri Amma, the most powerful female politician in the state’s history and asking why there was no continuation for female politicians, implying at the proverbial glass ceiling. They are also referring to Haleema Beevi, the first Muslim woman editor of a magazine in 1938, organizer of a women’s collective known as Travancore Muslim Vanitha Samajam with 1000 members and the Tiruvalla Taluk Secretary of Muslim League. They are placing themselves in affiliation with the remarkable women from their own party and other parties. The team, blamed by men of the party, as “peddling a particular case of feminism in the party” is unapologetic about being warriors of gender justice.

The one legacy the parent organization, IUML have recently began to forget is the legacy of C. H. Muhammad Koya, whose excellent efforts in quality education as a means of social development. C H Muhammad Koya introduced scholarships for Muslim women decades ago and kept talking about the vision of Muslim women getting educated and evolving as community leaders. This social development agenda has been abandoned by the IUML for all practical reasons and other than as a customary icon, they don’t even educate their cadre on the legacy of CH. Fathima Thahliya and the dismissed committee of Haritha are constantly talking about C H Muhammad Koya. Thahliya even says that they are the “daughters of C.H.”. This reclaiming helps them to establish their ideological positions unequivocally.

Kerala women have been up to some things remarkable, be it the nun’s against the tainted Christian priest, Women in Cinema Collective, struggles by saleswomen, women’s movements against sexual predators and so on. But this is the first time, in any party, the female youth wing has come out in the open against their senior male leadership in such a categorical manner. Given the generation, outlook, approaches and the legacy, this is unlikely to end up just as another visiting place but one that will chemically change the way politics of Kerala in general and of Muslim community in particular will be perceived and presented.

(N. P. Ashley teaches Engish at St. Stephen’s College, Delhi).   

Understanding the ‘Haritha Moment’: The Gender-ed Turn in Kerala Muslim Politics

N. P. Ashley

Kerala Muslims, arguably the most powerful Muslim community of the country and one of the most vivacious and dominant communities of the state, are noted in different ways: they are part of the globalised middle class in a way no other Muslim community in the country is, aided both by gulf migration and communitarian social development. While the arrival of pan-national, antagonistic Hindu majoritarianism did throw the community off its rhythm, causing cynical right wing tendencies, the mainstream Muslim political and religious organisations from conservatives to reformists as well as the centrist mass Muslim party, the Indian Union Muslim League, very confidently denounced and gave no space to Islamist majoritarianism, opposing it both theoretically and in its violent manifestations starting from the bloody violence of Marad (2003) to the chopping of the hand of professor in Kottayam’s New Man College (2010).

But the rise and rise of Hindutwa from 2014 through 2019 have taken the fear in the mind of the Muslim community to deeper levels. Muslim communitarian politics of the IUML-kind looked like it reached a dead end, lacking any solid theoretically clear foundation or committed leaders who were able to push the agenda of social development and inter community harmony in the new givens. Like most other parties in Kerala, the current leaders were happy consolidating their base and reaping the benefits of the work done by earlier leaders and this meant adjustments of convenience for the electorate without ideological integrity.

Though quite effective in opposing the idea of a theocratic state within the community, due to the absence of a unifying and rigorously ethical frame like constitutional nationalism, mainstream Muslim organizations seemed to become repetitive, if not outright anachronistic, in addressing the new social, political and ethical challenges. Conservatism and lack of imagination also made it impossible for them to integrate newer social energies that women brought in. Political Islamists, demographically a micro-minority and electorally insignificant, became a visible presence in the social media but they were genetically incapable of inclusivist, egalitarian politics.

2_Fathima ThahliyaFathima Thahliya

 

Student power that seemed to shake India, starting from 2016, found no organic expression in Kerala, as its higher education was completely hollowed out by a corrupt nexus of leadership of dominant communities, wealthy businessmen and political party machinery. The youngsters in the community, active in literary, cultural, educational, technological and social spheres, found no conversation possible with the discourses in the intra-community political or religious spheres.  For any observer, the community, rather than spreading its historical gains and extending leadership outside the state, seemed to be shrinking in confidence so much that it was becoming a dead end from where debates became endlessly recycled. In places the community is powerful, this could even manifest as traits of majoritarianism. Verbal conflicts between Islamophobes and Islamists were continuously rendering the majority of Muslims invisible and helpless.

It is against this backdrop that one could start reading the developments in the Indian Union Muslim League and its female student wing, “Haritha” (Haritha, in Malayalam, is the adjectival form of the colour green, a dominant colour of IUML, which could also be a proper noun for girls, most likely among Hindus).   

What has now become a sensational public conversation on gender in the state and the community politics, started as an intra-party fight.

Haritha was formed in 2012 to provide space of collectivization to the female students in campuses of Kerala, but its participation in electoral politics was through the MSF, limiting it to a tributary of sorts. The tensions started when the parent body IUML and the electoral face MSF, both governed almost entirely by men, decided to interfere in the affairs of Haritha.

Some men in the MSF bye-passed established procedures and formed one of the district committees for Haritha, without consulting Haritha’s state body. The state leadership of Haritha was quite unhappy about it. In a meeting of the MSF state committee held on 05 July 2021, Haritha State General Secretary and a member of the MSF state committee, Najma Thabsheera, wanted to present their version of the issue. P K Navas, the State President of the MSF passed a comment in the meeting that “every prostitute will have her version; let them voice it”. This, and later alleged character assassination by MSF Malappuram District General Secretary V Abdul Vahab, understandably outraged the Haritha state committee and they rose up in arms for strict action against these office bearers. The MSF leadership and their senior leadership in the IUML, appallingly, decided to freeze the Haritha state committee, rather than giving exemplary punishment to those who slut-shamed and character assassinated colleagues.  When denied justice from the senior leadership, the young women in the Haritha state leadership approached the constitutional body, the Women’s Commission of the state. This led to the dismissal of the state body of Haritha. The national Vice President of IUML’s student wing, Muslim Student Front (MSF), Fathima Thahliya, the founder President of Haritha and a vocal social media spokesperson on the IUML side, was expelled for supporting the dismissed Haritha state committee. The controversy raged when the dismissed committee, all ten of them together, took to the media by organizing a press meet and by giving interviews to the press, making it a major conversation on “malestream” politics and the space of women.

Making Sense of Haritha

The young women of Haritha belong to Gen Z, the generation born after 1992 with an average age of 25-26 and most of the names are new and unfamiliar in the old Kerala tradition: Mufeeda Tasni, Naja Tabsheera, Shamna V.K., Juvairiya, Mina Farzana, Farha, Bareera Thaha, Anagha (she is the Hindu presence in the state committee), Faseela VP and Ashida.  Mufeeda Tasni, the ex-President, is a researcher in Women’s Studies, Najma Thabsheera is a practising advocate and others are either advocates, or researchers in social sciences and humanities from colleges and universities across Kerala. Mina Farzana was in the news some years ago as the first female student union president of Feroke College, a 1948-established institution, famed as the Aligarh of south India. These female students bring in the generation’s post-globalization set of values, a disciplinarian terminology and sensibility into campus politics.

Haritha was only a female student wing without electoral presence and it is likely that the men weren’t particularly attentive to what was happening in their female wing, as it was, in the end, going to contribute to the MSF which men were in charge of.  They must have found such an entity necessary for widening the student base, given the burgeoning female population in liberal arts and science colleges, outnumbering male students by miles and within that the abundance of Muslim female students. These young women used the definitive female space, but one that is away from regular campus confrontations, to cultivate a collective spirit of sorority. In a place like Kerala, where student politics is exhausted as miniatures of the mainstream political parties, this marginal space could well have been a possibility.  

The watershed moment for Haritha, remembers Najma Thabsheera, was Shaheen Bagh and the campus protests against the Citizenship Amendment Act. The women of Shaheen Bagh, who performed Indian constitutional nationalism on the street, in an attempt to reclaim the republic’s foundational values, demonstrated how imaginatively women could intervene in public. The CAA protests, Najma believes, changed the largely male nature of student protests of Kerala, where loud sloganeering and police violence including lathi charge usually make women take a side seat. These protests were about songs and poems, with young men and women coming together against what they perceived was a grave injustice to the commitment Indian people made to themselves. Najma who got married in February 2020, demanded, as her right is, that her mehr, the obligation to the women during a wedding, be two things, says she in a recent interview with The Cue: a copy of the constitution of India and a copy of the Holy Quran, a unifying step that she says was inspired by Shaheen Bagh- this outlook also undoes the fake contradiction both Hindutwa majoritarians and Muslim patriarchy have tried to create between India and Islam. This constitutional nationalism would work within a party like IUML, where there is no ideological baggage against female emancipation or communal harmony, an aspect female outfits of theoretically patriarchal and majoritarian Islamist organizations could never have.  

The 2009, V. S. Achuthanandan government decision to reserve 50% of the seats in the local body elections to women was another game changer. In the initial years, men brought in their wives or women they could control as candidates and some of the posters, especially from the Muslim community, had the photo of the husband while the name and emblem were of the wife, the actual candidate! When young women from campus politics got the opportunity to work in the electioneering in their neighbourhoods, with some of them going onto become candidates, this new space allowed them to engage with the world outside the secluded space of campuses.

3_Mufeeda Tasni  Najma Thabsheera, dismissed President and   General Secretary of Haritha State CommitteeMufeeda Tasni  Najma Thabsheera, dismissed President and   General Secretary of Haritha State Committee

 

Haritha Claims and Reclaims

One of the campaigns that Haritha ran in its initial years was “All Spaces are Ours Too”, a definitive feminist claim. They took up the IUML notion of “honourable existence” and refilled it with the social content of gender and in that they liberated the women who were made visible in the communitarian debate, not just in the Muslim community but across communities of Kerala. Instead of settling a gender-based verbal violence within the organization, as the male logic would often have women do in the case of domestic violence, they took the matter to the Women’s Commission, claiming constitutional options. Fathima Thahliya, in an interview with True Copy Think, argued that the point is not how many pieces of bread women get; but to see that women are part of the process of how to distribute the bread will be defined. The Haritha team states they understand minority politics in a broad and inclusive sense: minorities  should not be limited to religious minorities alone but also include subaltern groups such as dalits and all other minorities, be that linguistic, sexual or ethnic.  

These young women are reclaiming certain traditions: they are constantly taking the name of Gauri Amma, the most powerful female politician in the state’s history and asking why there was no continuation for female politicians, implying at the proverbial glass ceiling. They are also referring to Haleema Beevi, the first Muslim woman editor of a magazine in 1938, organizer of a women’s collective known as Travancore Muslim Vanitha Samajam with 1000 members and the Tiruvalla Taluk Secretary of Muslim League. They are placing themselves in affiliation with the remarkable women from their own party and other parties. The team, blamed by men of the party, as “peddling a particular case of feminism in the party” is unapologetic about being warriors of gender justice.

The one legacy the parent organization, IUML have recently began to forget is the legacy of C. H. Muhammad Koya, whose excellent efforts in quality education as a means of social development. C H Muhammad Koya introduced scholarships for Muslim women decades ago and kept talking about the vision of Muslim women getting educated and evolving as community leaders. This social development agenda has been abandoned by the IUML for all practical reasons and other than as a customary icon, they don’t even educate their cadre on the legacy of CH. Fathima Thahliya and the dismissed committee of Haritha are constantly talking about C H Muhammad Koya. Thahliya even says that they are the “daughters of C.H.”. This reclaiming helps them to establish their ideological positions unequivocally.

Kerala women have been up to some things remarkable, be it the nun’s against the tainted Christian priest, Women in Cinema Collective, struggles by saleswomen, women’s movements against sexual predators and so on. But this is the first time, in any party, the female youth wing has come out in the open against their senior male leadership in such a categorical manner. Given the generation, outlook, approaches and the legacy, this is unlikely to end up just as another visiting place but one that will chemically change the way politics of Kerala in general and of Muslim community in particular will be perceived and presented.

(N. P. Ashley teaches Engish at St. Stephen’s College, Delhi).   

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SC paves the way for women to take National Defence Academy exam in November 2021

The top court refused to entertain the centre’s notification to allow women candidates to take the entrance exam for entry into NDA only in May 2022

22 Sep 2021

indian Army

The Supreme Court has directed the central government to include women in the permanent commissions of National Defence and Naval Academies from this year’s examination that is scheduled to be held in November. It refused to vacate its previous order of allowing women to take the exams this year.

Bar & Bench reported the court saying, “It would be difficult for us to accept the submissions of the Centre in view of the aspirations of the candidates willing to take the exam. The Armed Forces have seen far emergent situations both at the border and in the country. We are sure such training will come handy here. We will thus not vacate the order passed by us. We will keep the plea pending here so that directions can be sought as situations arise.”

The court was talking about its previous order passed on August 18, in which it ordered, “In view of the impending examination and on hearing learned counsel for parties, we consider it appropriate to issue interim direction permitting the women candidates to take part in the examination scheduled for 05th September, 2021, subject to further orders from this Court.”

The Court had also ordered the Union Public Service Commission (UPSC) to give wide publicity to the order so that people can benefit from the same. It had said, “UPSC is directed to take out the necessary corrigendum in view of the interim orders we have passed today and give it wide publicity so that the intent of the order is translated into benefit at the ground level.”  

The Court said today, on September 22, that instead of allowing women to write the exams next year, the centre should consider ways to do something for the women candidates. It said, “What answer would we have for the students who are on the anvil of taking the exam? Don't ask us to effectively vacate the order. You go on with the exercise. Let us see the result and see how many women get in”, reported B&B.

The Additional Solicitor General, Aishwarya Bhati, contended that a study group has been constituted to examine the various changes in curriculum, infrastructure, fitness training, accommodation facilities etc., and these are required to be made to facilitate the entry of women by May 2022. Therefore, she sought time and urged the court to not allow women to sit for the NDA entrance examination, scheduled to be held on November 14.

But the court refused to entertain this argument and asked the centre to look for solutions and to begin with the process. LiveLaw quoted the court saying, “It will be difficult for us to accept that position, the aspirations of women having been arisen in view of the order, albeit subject to the final outcome of the petition.”

As per media reports, the petition had been filed by Kush Kalra, alleging that female candidates were being denied the opportunity of entry to the National Defence Academy on the basis of their sex, thereby systematically excluding eligible female candidates the opportunity to train at the premier joint training institute.

The petition had also stated that the categorical exclusion of women to train at the National Defence Academy and get commissioned into the Armed Forces of the country as Permanent Commissioned Officers was violative of Article 14 and 21 of the Constitution of India.

The Court has posted the matter for further hearing in the third week of January.

The August 18 interim order may be read here: 

 

Related:

SC’s landmark judgment: Equal roles for women in the Army

Male troops not 'mentally schooled' to accept orders from women: Center

SC paves the way for women to take National Defence Academy exam in November 2021

The top court refused to entertain the centre’s notification to allow women candidates to take the entrance exam for entry into NDA only in May 2022

indian Army

The Supreme Court has directed the central government to include women in the permanent commissions of National Defence and Naval Academies from this year’s examination that is scheduled to be held in November. It refused to vacate its previous order of allowing women to take the exams this year.

Bar & Bench reported the court saying, “It would be difficult for us to accept the submissions of the Centre in view of the aspirations of the candidates willing to take the exam. The Armed Forces have seen far emergent situations both at the border and in the country. We are sure such training will come handy here. We will thus not vacate the order passed by us. We will keep the plea pending here so that directions can be sought as situations arise.”

The court was talking about its previous order passed on August 18, in which it ordered, “In view of the impending examination and on hearing learned counsel for parties, we consider it appropriate to issue interim direction permitting the women candidates to take part in the examination scheduled for 05th September, 2021, subject to further orders from this Court.”

The Court had also ordered the Union Public Service Commission (UPSC) to give wide publicity to the order so that people can benefit from the same. It had said, “UPSC is directed to take out the necessary corrigendum in view of the interim orders we have passed today and give it wide publicity so that the intent of the order is translated into benefit at the ground level.”  

The Court said today, on September 22, that instead of allowing women to write the exams next year, the centre should consider ways to do something for the women candidates. It said, “What answer would we have for the students who are on the anvil of taking the exam? Don't ask us to effectively vacate the order. You go on with the exercise. Let us see the result and see how many women get in”, reported B&B.

The Additional Solicitor General, Aishwarya Bhati, contended that a study group has been constituted to examine the various changes in curriculum, infrastructure, fitness training, accommodation facilities etc., and these are required to be made to facilitate the entry of women by May 2022. Therefore, she sought time and urged the court to not allow women to sit for the NDA entrance examination, scheduled to be held on November 14.

But the court refused to entertain this argument and asked the centre to look for solutions and to begin with the process. LiveLaw quoted the court saying, “It will be difficult for us to accept that position, the aspirations of women having been arisen in view of the order, albeit subject to the final outcome of the petition.”

As per media reports, the petition had been filed by Kush Kalra, alleging that female candidates were being denied the opportunity of entry to the National Defence Academy on the basis of their sex, thereby systematically excluding eligible female candidates the opportunity to train at the premier joint training institute.

The petition had also stated that the categorical exclusion of women to train at the National Defence Academy and get commissioned into the Armed Forces of the country as Permanent Commissioned Officers was violative of Article 14 and 21 of the Constitution of India.

The Court has posted the matter for further hearing in the third week of January.

The August 18 interim order may be read here: 

 

Related:

SC’s landmark judgment: Equal roles for women in the Army

Male troops not 'mentally schooled' to accept orders from women: Center

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A year on, Hathras victim’s family awaits a house, pension and employment

The victim’s family has urged the court to provide them with immediate relief as laid down in the SC/ST rules, 1995

21 Sep 2021

hathras gang rape

The Allahabad High Court has been hearing the suo motu Public Interest Litigation (PIL) in connection with the hasty cremation of the 19-year-old Dalit girl, who was allegedly gang raped and murdered in September last year in Hathras.

In the previous hearing on September 16, the Lucknow bench of Justices Jaspreet Singh and Rajan Roy, has asked the government and victim’s counsels, along with the amicus curiae to apprise it of the various benefits the victim’s family is entitled to under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Rules made thereunder.

Advocate Seema Kushwaha, representing the victim’s family, submitted to the court that even though a compensation of Rs. 25 lakhs have been provided to the family, other benefits and relief under Rule 12 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, specifically sub-Rule (4) have not been extended to them.

According to Rule 12 (4), “District Magistrate or the Sub-Divisional Magistrate or any other Executive Magistrate shall make arrangements for providing immediate relief in cash or in kind or both to the victims of atrocity, their family members and dependents and such immediate relief shall also include food, water, clothing, shelter, medical aid, transport facilities and other essential items necessary for human beings.”

Kushwaha also brought to the court’s attention that the 1995 Rules lays down that a Scheduled Caste/Scheduled Tribe victim of gang rape and the family in case of murder, is eligible for pension of Rs. 1,000 per month, or employment to one member of the family of the deceased, or provision of agricultural land, a house, if necessary, by outright purchase.

The rules further allow the provision of utensils, rice, wheat, dals, pulses, etc., for a period of three months. In this regard, the counsel told the court, “a house and employment as envisaged under the aforesaid provisions have not been provided, as is mandatory, nor has the pension been provided.”

The court finally ordered, “Let the learned Amicus Curiae as also other counsels appearing for the victim's family and for the State etc. address the Court on these aspects relating to the benefits to which the victim’s family is entitled under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Rules made thereunder as also the benefits which have already been made available to them.”

Two cases were registered after the girl’s death on September 30, 2020. The Allahabad High Court has been hearing the suo motu case into the alleged forcible cremation of the girl in the middle of the night and the Scheduled Caste/Scheduled Tribe court in Hathras is adjudicating on the criminal proceedings of the alleged gang rape and murder.

The proceedings in the trial court were interrupted in March this year, after the family and the lawyer were threatened in open court by an intoxicated advocate named Tarun Hari Sharma. The family had urged the court to shift the trial outside Hathras but the High Court refused to transfer the trial.

The matter will be heard on September 24, where the high court is set to decide the various reliefs the family is entitled to. 

The order may be read here:

 

Related:

Hathras case: Allahabad HC refuses to stay or transfer ongoing trial outside Hathras

Hathras case: Victim’s family and lawyers threatened inside court premises

State Counsel appears to justify the hasty cremation of Hathras Victim: HC

A year on, Hathras victim’s family awaits a house, pension and employment

The victim’s family has urged the court to provide them with immediate relief as laid down in the SC/ST rules, 1995

hathras gang rape

The Allahabad High Court has been hearing the suo motu Public Interest Litigation (PIL) in connection with the hasty cremation of the 19-year-old Dalit girl, who was allegedly gang raped and murdered in September last year in Hathras.

In the previous hearing on September 16, the Lucknow bench of Justices Jaspreet Singh and Rajan Roy, has asked the government and victim’s counsels, along with the amicus curiae to apprise it of the various benefits the victim’s family is entitled to under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Rules made thereunder.

Advocate Seema Kushwaha, representing the victim’s family, submitted to the court that even though a compensation of Rs. 25 lakhs have been provided to the family, other benefits and relief under Rule 12 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, specifically sub-Rule (4) have not been extended to them.

According to Rule 12 (4), “District Magistrate or the Sub-Divisional Magistrate or any other Executive Magistrate shall make arrangements for providing immediate relief in cash or in kind or both to the victims of atrocity, their family members and dependents and such immediate relief shall also include food, water, clothing, shelter, medical aid, transport facilities and other essential items necessary for human beings.”

Kushwaha also brought to the court’s attention that the 1995 Rules lays down that a Scheduled Caste/Scheduled Tribe victim of gang rape and the family in case of murder, is eligible for pension of Rs. 1,000 per month, or employment to one member of the family of the deceased, or provision of agricultural land, a house, if necessary, by outright purchase.

The rules further allow the provision of utensils, rice, wheat, dals, pulses, etc., for a period of three months. In this regard, the counsel told the court, “a house and employment as envisaged under the aforesaid provisions have not been provided, as is mandatory, nor has the pension been provided.”

The court finally ordered, “Let the learned Amicus Curiae as also other counsels appearing for the victim's family and for the State etc. address the Court on these aspects relating to the benefits to which the victim’s family is entitled under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Rules made thereunder as also the benefits which have already been made available to them.”

Two cases were registered after the girl’s death on September 30, 2020. The Allahabad High Court has been hearing the suo motu case into the alleged forcible cremation of the girl in the middle of the night and the Scheduled Caste/Scheduled Tribe court in Hathras is adjudicating on the criminal proceedings of the alleged gang rape and murder.

The proceedings in the trial court were interrupted in March this year, after the family and the lawyer were threatened in open court by an intoxicated advocate named Tarun Hari Sharma. The family had urged the court to shift the trial outside Hathras but the High Court refused to transfer the trial.

The matter will be heard on September 24, where the high court is set to decide the various reliefs the family is entitled to. 

The order may be read here:

 

Related:

Hathras case: Allahabad HC refuses to stay or transfer ongoing trial outside Hathras

Hathras case: Victim’s family and lawyers threatened inside court premises

State Counsel appears to justify the hasty cremation of Hathras Victim: HC

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Slamming delay in probe, Allahabad HC directs police to speed up sexual assault probe

​​​​​​​The court reiterated section 173 of CrPC which was amended in 2018 to mandate that investigation in sexual violence cases should be completed within 2 months; yet in this case, the statements of the accused were recorded after 3 months of the FIR

18 Sep 2021

Allhabad HC

The Allahabad High Court has ordered a fresh probe into the case of rape on a minor girl in a Mainpuri school who was found hanging. The court has found some serious lapses in the investigation carried out initially. The bench of Acting Chief Justice Munishwar Nath Bhandari and Justice Anil Kumar Ojha observed that the interrogation of the accused was carried out by the police 3 months after the FIR was lodged.

Further, noticing these serious lapses, the court has also given a direction that the state government should issue and order directing investigating officers to comply with section 173 of the CrPC which mandates completion of investigation of sexual offences within 2 months.

Section 173 1A was inserted by the Criminal Law (Amendment) Act, 2018 and states:

“The investigation in relation to an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the Indian Penal Code shall be completed within two months1 from the date on which the information was recorded by the officer in charge of the police station.”

The case is of 2019 when a 16-year-old girl was found hanging in her hostel and her family had alleged sexual assault. Some serious lapses were found in the investigation conducted by the Special Investigation Team (SIT) and the family had alleged that the police were trying to shield the accused which included the school’s principal, hostel warden and another person.

The court was informed that action has been taken against those police officers who defaulted in conducting the investigation in a fair and proper manner. Investigating Officer Pahup Singh has been placed under suspension and an inquiry against Superintendent of Police, Mainpuri is underway. Further, the DGP also informed the court that two other officers Om Prakash, Additional Superintendent of Police and Priyank Jain, Deputy Superintendent of Police have also been placed under suspension.

The major lapse in the matter was that despite semen found on the body of the deceased girl, the DNA test of the suspects was not sent for which hampered the probe into allegations of sexual assault.

The court has directed the newly constituted SIT to probe the case within 6 weeks.

Members of the Bar including Senior Counsel Amrendra Nath Singh, told the court that this is not just a case of lapse in investigation but a case where the effort of the investigating team was to give benefit to the accused. The effort was to somehow make them free and thereby no evidence relevant to the case was collected rather subsequent investigation was also to give clean chit to the accused, the court was informed by the counsel.

About the mandate under section 173 of CrPC, the court said, “Since Section 173 (2) Cr.P.C. mandates completion of investigation within time frame, the D.G.P. is directed to find out whether necessary order has been issued by the State Government to direct the investigating officers for compliance of the provisions, as amended. If circular/direction has been issued till date, then immediately an order be issued.”

The court gave serious consideration to the provisions and directed that delay in “investigation in such cases should be made subject or explanation otherwise delay without any reason should invite action against the defaulting officers”.

“The Government is directed to take action against the defaulting officers, if cause delay in investigation of the offence under Section 173 Cr.P.C. If the investigating officers are not efficient then in future they should not be assigned investigation of the case. It is further directed that in the investigation, all scientific methods should be applied because defective investigation or investigation without collection of proper evidence, results in acquittal and therefore only the conviction rate is only 6 to 7%,” the court said.

The court has also directed the police administration to not only monitor the investigation but guide the investigating officers to apply the scientific methods for investigation and for training to be held periodically. The court also ordered that not only the investigating officer but the officers who supervise the investigation should be made responsible if any defect is found in the investigation. In this case, the court has directed the DGP to closely monitor the progress of the investigation.

The court also ordered protection of the petitioner and the family of the victim.

The case will next be heard on October 18.

This order mandating and reiterating completion of investigation in sexual assault cases within 2 months is a welcome move in the light of the rising crimes against women as indicated in the Crime in India 2020 report released by the National Crime Records Bureau. The report revealed that Uttar Pradesh has topped the list of crimes against women with maximum number of cases at 49,385. Uttar Pradesh also recorded the second highest number of rape cases in the country with 2,796 cases.

The complete order may be read here:

Related:

Crimes against women highest in Uttar Pradesh: NCRB 2020 report

Two years after she was found dead, family of Mainpuri school girl awaits justice

Mumbai man rapes woman, tortures her with iron rod

 

Slamming delay in probe, Allahabad HC directs police to speed up sexual assault probe

​​​​​​​The court reiterated section 173 of CrPC which was amended in 2018 to mandate that investigation in sexual violence cases should be completed within 2 months; yet in this case, the statements of the accused were recorded after 3 months of the FIR

Allhabad HC

The Allahabad High Court has ordered a fresh probe into the case of rape on a minor girl in a Mainpuri school who was found hanging. The court has found some serious lapses in the investigation carried out initially. The bench of Acting Chief Justice Munishwar Nath Bhandari and Justice Anil Kumar Ojha observed that the interrogation of the accused was carried out by the police 3 months after the FIR was lodged.

Further, noticing these serious lapses, the court has also given a direction that the state government should issue and order directing investigating officers to comply with section 173 of the CrPC which mandates completion of investigation of sexual offences within 2 months.

Section 173 1A was inserted by the Criminal Law (Amendment) Act, 2018 and states:

“The investigation in relation to an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the Indian Penal Code shall be completed within two months1 from the date on which the information was recorded by the officer in charge of the police station.”

The case is of 2019 when a 16-year-old girl was found hanging in her hostel and her family had alleged sexual assault. Some serious lapses were found in the investigation conducted by the Special Investigation Team (SIT) and the family had alleged that the police were trying to shield the accused which included the school’s principal, hostel warden and another person.

The court was informed that action has been taken against those police officers who defaulted in conducting the investigation in a fair and proper manner. Investigating Officer Pahup Singh has been placed under suspension and an inquiry against Superintendent of Police, Mainpuri is underway. Further, the DGP also informed the court that two other officers Om Prakash, Additional Superintendent of Police and Priyank Jain, Deputy Superintendent of Police have also been placed under suspension.

The major lapse in the matter was that despite semen found on the body of the deceased girl, the DNA test of the suspects was not sent for which hampered the probe into allegations of sexual assault.

The court has directed the newly constituted SIT to probe the case within 6 weeks.

Members of the Bar including Senior Counsel Amrendra Nath Singh, told the court that this is not just a case of lapse in investigation but a case where the effort of the investigating team was to give benefit to the accused. The effort was to somehow make them free and thereby no evidence relevant to the case was collected rather subsequent investigation was also to give clean chit to the accused, the court was informed by the counsel.

About the mandate under section 173 of CrPC, the court said, “Since Section 173 (2) Cr.P.C. mandates completion of investigation within time frame, the D.G.P. is directed to find out whether necessary order has been issued by the State Government to direct the investigating officers for compliance of the provisions, as amended. If circular/direction has been issued till date, then immediately an order be issued.”

The court gave serious consideration to the provisions and directed that delay in “investigation in such cases should be made subject or explanation otherwise delay without any reason should invite action against the defaulting officers”.

“The Government is directed to take action against the defaulting officers, if cause delay in investigation of the offence under Section 173 Cr.P.C. If the investigating officers are not efficient then in future they should not be assigned investigation of the case. It is further directed that in the investigation, all scientific methods should be applied because defective investigation or investigation without collection of proper evidence, results in acquittal and therefore only the conviction rate is only 6 to 7%,” the court said.

The court has also directed the police administration to not only monitor the investigation but guide the investigating officers to apply the scientific methods for investigation and for training to be held periodically. The court also ordered that not only the investigating officer but the officers who supervise the investigation should be made responsible if any defect is found in the investigation. In this case, the court has directed the DGP to closely monitor the progress of the investigation.

The court also ordered protection of the petitioner and the family of the victim.

The case will next be heard on October 18.

This order mandating and reiterating completion of investigation in sexual assault cases within 2 months is a welcome move in the light of the rising crimes against women as indicated in the Crime in India 2020 report released by the National Crime Records Bureau. The report revealed that Uttar Pradesh has topped the list of crimes against women with maximum number of cases at 49,385. Uttar Pradesh also recorded the second highest number of rape cases in the country with 2,796 cases.

The complete order may be read here:

Related:

Crimes against women highest in Uttar Pradesh: NCRB 2020 report

Two years after she was found dead, family of Mainpuri school girl awaits justice

Mumbai man rapes woman, tortures her with iron rod

 

Related Articles


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