The case of jailing a gang rape survivor shocked the country. While the survivor was released on bail on July 18, her support persons are still in jail. They have now been in jail for over two weeks for doing their duty. Jan Jagran Shakti Sangathan has deemed their detention as ‘legally unsustainable’. Civil Society is demanding their immediate and the hashtag ‘FreeTanmay’ ‘Free Kalyani and ‘sunwayichahiye’ were trending on twitter this Friday. However, their case in courts has seen no movement, on grounds of COVID lockdown, and no special hearing has been convened in this travesty of justice. The author examines this as an implication of the society and legal system’s apathy to supporting survivors.
It has been two weeks since the Araria gangrape survivor and her support persons were sent to jail. While the survivor was released on bail last week, the support persons are still languishing in jail.
What is their crime? They supported a survivor of sexual assault.
The support persons, Tanmay and Kalyani, helped the survivor register her case and accompanied her to the court to record her statement under S 164 of the CrPC.
The survivor was shocked to see the accused and his family when she reached the court. She then waited for three to four hours standing in the corridors of the court. In an interview to BBC, she narrated that before recording her statement, a court staff asked her to pull down her face scarf. On recognising her the staff person commented on how he had seen her riding a bicycle and had wanted to reprimand her for it.
“In her own words, her mind went numb. She didn’t know what to do.”
After entering the courtroom she felt alone and was reeling from trauma. She was unable to understand the statement that the judge was reading out to her. But she knew that she shouldn’t sign the statement if she didn’t understand. So she asked the judge to allow Kalyani to come in and read it to her.
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The judge reportedly took this as an upfront to his position. He questioned her if she didn’t trust him. He called her mannerless and rude.
In her own words, her mind went numb. She didn’t know what to do. So she signed the statement and ran out of the room. In the meantime, the judge called the court staff and Kalyani into the court.
According to the survivor, both Kalyani and she apologised to the judge but no one paid heed. The judge was furious. Instead, the support persons were told to teach the survivor some manners.
Charged for obstructing court proceedings
Tanmay and Kalyani stood by the survivor. They insisted that if the survivor has not understood the statement then efforts should be made to reread the statement to her for her understanding. The judge responded saying the court has other work to do. Subsequently they were charged for obstructing the proceedings of the court.
Also Read: Lawyers write to Chief Justice of Patna High Court; seek systemic changes in the treatment of survivors of violent sexual crimes in the Araria District Court
The jailing of a survivor brought the court’s apathetic treatment to light. On July 18, the Chief Judicial Magistrate held a special hearing amidst court lockdown and granted her bail. However, Tanmay and Kalyani did not receive bail. They have been waiting for their case to be listed by the court amidst the lockdown in which even virtual hearings are not being conducted.
“A country that rallies for strong laws in the aftermath of the death of a victim offers little space for a survivor.”
Their Writ Petition filed in Patna High Court filed by Jan Jagran Shakti Sangathan, the organisation with which Tanmay and Kalyani are associated, has not been listed yet. On the other hand, the High Court’s suo moto cognisance of the case was changed to a criminal writ petition. It has been listed four times since then but has still not been heard. The court is now on a ‘partial vacation’ from July 27 to August 6. No one knows when the next hearing will be scheduled.
The case is not just an example of victimising the victim. It has deeper connotations on how we view the role of support persons and NGOs within the criminal justice system. A country that rallies for strong laws in the aftermath of the death of a victim offers little space for a survivor.
Wanted: an ideal and supportive system
Survivors of sexual assault fear social stigma and hence hesitate to report their cases.
Ideally, the legal system should itself be sensitive that one does not require support persons. The Justice Verma Committee report in fact places every police officer under a moral, legal and constitutional duty to assist the crime in every way.
“Support persons act as a necessary bridge between the generally insensitive legal system and the survivor looking for justice.”
In such a system, the Investigating Officer would have ensured that the survivor did not face her accused. The purpose of In camera proceedings is to prevent trauma to the survivor. But this is idealism and not reality. Instead, we learn that the survivor was character assassinated by the court staff prior to the recording of her statement.
Post Nirbhaya, the government had proposed to establish One Stop Centres to ease access to justice for survivors. The Aparajita Centre was established in 2013 through the Nirbhaya Fund as a pilot project before this scheme. Reportedly it has become a marital dispute resolution centre. It lacks trained staff, resources and psychologists to provide counselling to the survivor.
The Role of Support Persons
Support persons act as a necessary bridge between the generally insensitive legal system and the survivor looking for justice.
This is not an easy job.
A support person has to exercise high emotional intelligence and often have to help multiple survivors navigate the frustrating legal system. Their own mental health is often at stake. Yet, we see dynamic young activists enter the area with a passion to fight for justice. The society of which the legal system is a part, unfortunately often undervalues and derides the contributions of NGOs.
“The society of which the legal system is a part, unfortunately often undervalues and derides the contributions of NGOs.”
The Justice Verma Committee report made it clear that police officers and members of the public should assist the survivor and not treat them as wrong doers. The principle seems to have been lost in the system that requires sensitivity and gender perspective training.
One hopes that the Patna High Court will pay heed to this crucial principle of Indian law as Tanmay and Kalyani wait for their right to be heard.
(The authors is a socio-legal researcher. Views expressed are personal.)
The article was originally published in The Leaflet.