ISSN 2330-717X

Perception Needs To Change In Sync With Law – OpEd

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Varnika Kundu’s recent tryst with alleged stalking at Chandigarh, the ensuing controversies and the action taken by the authorities only underline the fact that the common law and popular attitudes with regard to ‘stalking’ and ‘concealing the identity’ of a victim need to be revisited.

Similarly in context is the most heinous Bilkis Bano case, wherein she maintained, at the end of the trial, that all she wanted was “justice, not revenge.” All the time, Bilkis throughout the 15-year period of trial, revealed her identity putting it out there in public domain and that became her source of strength.

The Bombay High Court judgement upholding the life imprisonment of 12 accused involved in raping her also set aside the acquittal of seven persons who included police officers and doctors. Bilkis, who was pregnant at the time and also lost her three-and-half year old daughter in the riots, is hoping that the judgement will help her lead, “a good life”.

The milestone judgement, fifteen long years after the crime was committed in 2002, will go down in history for a string of reasons. It brought to the limelight, the role of police officers and doctors in the crime as the Bombay High Court overturned their acquittal, holding them accountable for covering up the incident. “My elder daughter wants to be a lawyer. I will make sure all my children study and chart a new path,” said Bilkis.

Predictably, there was social ostracism and pressure from community members, but her husband Yakub stood stoically by her side all through the 15 years. Even as they changed ‘homes’ over 25 times in fifteen years, they faced threats from convicts who were frequently out on parole. Yakub broke down when asked about the family’s ordeal at a conference held after the judgement. “I want women across the board to get justice like Bilkis,” he said.

Even as the law prevails finally, it often is the journey through the motions, for 15 years for Bilkis Bano and her family, which breaks the victim. Hence, the implication of police officers and doctors in a case pertaining to sexual violence, probably for the first time in India’s legal history, will go down as a precedent to smoothen the way for similar cases in the future. The presumption of public servants ‘acting in good faith’ has single-handedly stalled due process of law over years and needs to be examined, purely on merit. In the case of Bano, the doctors’ and police officers’ omissions, being “grave and obvious” and their malafides and intentions seeming “apparent”, was placed on record.

In view of the social pressures and stigma associated with sexual violence and crimes against women, Bilkis Bano’s shines as an example. The woman not just stood tall against her oppressors, mighty and powerful, she stood without concealing her identity: An identity that the law has, rightly retained, for some, provisions for non-disclosure in order to avert the very stigma that victims face.

The one weapon that Bilkis Bano used and with aplomb, in her fight against the system, was her identity. She came out in the open and offered her name, story complete with images to be put in public domain. Bilkis Bano fought a stigma that the perpetrators always attempt to use in order to silence a victim. She went public with her story: This, despite, the law offering provisions for a victim of sexual violence and rape to maintain privacy.

And, while the option of going public or maintaining privacy rests solely upon the victim, Bilkis has dealt a blow to her perpetrators by refusing to stay silent, cave into pressures of time and trial and remain anonymous. Similarly-affected victims may need the protection of law to remain anonymous in order to safeguard their interests, yet a lot of care will need to be taken in order to ensure that the system is not manipulated by players proficient in dodging the system.

Besides the perpetrators who continued to manipulate the system and its parole facilities to intimidate, threaten and coerce Bilkis Bano into submission, it were the police officers and the doctors whose inactions “grave and obvious” which stalled the due process. In that, Bilkis Bano’s is a lofty precedent that provides the much-needed relief for the overloaded legal system in order to achieve justice. It’s these factors, ‘motivated’ police officers and ‘corrupt’ doctors fudging medical and post-mortem reports that thwart the legal system.

‘Acts in Good Faith’ committed by police officers and doctors will now be examined on merit as their conviction in Bilkis Bano’s case exposes the complicity and culpable involvement of a section of ‘motivated’ public servants; the need to “go public” in order to counter shaming tactics and a strict re-examination of serving criminals misusing “parole”.

Bilkis Bano has kick-started the process of socio-legal reforms in India across machineries, which are being grossly misused and need an urgent overhaul failing which the Rule of Law risks being quashed: And, the world’s largest democracy will need to address it…and soon!

Varnika, like Bilkis, too came out in the open, revealing her identity when not many, in her situation, would. Regardless of popular fears and social worries, Varnika stood tall and won. Varnika Kundu could have concealed her identity but stood her ground, revealing it instead, she maintained the fight was not just personal: It was against all those targeting women.

Taking an issue like ‘stalking’ lightly or ratifying it by way of politically motivated speeches or justifying stalking through films under the guise of creativity should end. It may need legislation in the absence of sensitivity towards the issue. The media needs to educate, sensitise and initiate change in this regard. Sadly, more often than not, the media tends to either simplify the situation or fan controversy blindly.

Law-enforcement agencies have poor idea about the law itself. The police, on their part, are evidently unaware of the amended legislation passed by Parliament in February 2013, which came just a year after a medical student was gang-raped in Delhi. The law has changed but for mindsets to change, it will take longer. It was against the backdrop of the Delhi rape that followed the amendment and the concurrent identification of stalking as a serious offence.

An offence of stalking can be committed by anyone even known to the victim. So, in most cases wherein a family member stalks a girl, sometimes a daughter too, the police tend to dismiss it as a civil matter and thereby escalating the risk for the victim: This, despite the law being there to protect her. A lot needs to be done to change attitudes among the law enforcement agencies towards crimes especially those relating to women and pertaining to their own families. The perception, especially among the police, that the issue is a domestic one and a civil matter to boot, has to change.

That said, it needs the police at grass-root level to facilitate inquiries and preventive action; the media to act responsibly in the absence of legislation to censor their creativity and the politicians to perform their duty by upholding the law rather than fanning popular sentiments and playing vote-bank politics. Now, those are tall orders, but India is on the mend and things will change!


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Gajanan Khergamker

Gajanan Khergamker

Gajanan Khergamker is an independent editor, legal counsel and documentary film-maker with over three decades of media-legal experience across India. He is the founder of DraftCraft – an India-based think-tank. Through strategic writings and columns across global media; niche workshops held for the benefit of police personnel, lawyers and media students as well as key lectures held at corporate venues and in Law and Mass Media colleges and universities across India, he analyses and initiates 'live' processes that help deliver social justice through the media and legal channels. He trains students, journalists, lawyers and corporate personnel to ideate, integrate and initiate the process of social justice which “isn't the sole responsibility of the State”. He holds legal aid workshops and creates permanent legal aid cells for the deprived across India through positive activism and intervention. He furthers the reach of social responsibility by initiating strategic process by offering consultancy services to corporates in the rapidly-growing CSR scenario. To further the reach of social responsibility, Gajanan Khergamker works closely with state entities, law universities, educational institutes, research think-tanks, publications and media houses, corporates and public-spirited individuals. His areas of interest include public affairs, inclusion, conflict of interest, law and policy, foreign affairs and diversity.

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