Where is the State to Protect the Dispossessed and Downtrodden?

by Gautam Sen

One more gory instance of assault and depredation against the deprived and the dispossessed of India has come to light. This was a July 6, 2019 incident concerning a 35-year-old Scheduled Caste (SC) woman of poor means, being forcibly taken to a police station at Sardarshahar in Rajasthan‘s Churu district, raped while in detention in a police custody, brutally assaulted by the guardians of the law to the extent of having her nails plucked out, beaten in the presence of a woman constable (who tried to protect her from the assaults), and further tortured by different means with direct involvement of the Station House Officer and six policemen.

The cause of the local police’s rage against the SC woman and the vicious attack on her is that she was a witness and had complained against the forcible apprehending of her brother-in-law on June 30, 2019 for alleged theft and eventual death in police custody. The occurrence, narrated above, seems to be well-established and corroborated by many sources.

A moot point is that appropriate condemnation at the State Government’s level against the barbaric Rajasthan State Police’s action, has not been forthcoming. On the other hand, a ruling Congress Party member of the State Legislature had initially tried to wish away the incident and then defended it, thereby drawing the ire of many citizens and social activists across the country. It is ironic that a member of a political party, which is apparently committed to social justice, should defend such a horrific incident.

Another case of rape by the Station House Officer and his deputy of Jasrasar Police Station in Bikaner district of the State, had been reported in May this year.

Such happenings continue to be triggered when members of the SC, Scheduled Tribes and Other Backward Classes communities have tried to assert their socio-economic rights or the persons in the upper social hierarchy have found an opportunity to usurp the property and community privileges rightfully obtained by the former under the law of the land. Even when the facts pertaining to thefts or petty crimes, etc. have not yet been proved or even if prima facie established, the due process of law and investigation not been resorted to, peremptory action taken by state personnel dictated by the pressures of the social environ-ment dominated by the upper castes. The mindset, engendering a fallacious notion of inborn or inherent superiority among the socially deemed upper castes, is at the root of such atrocities meted out to the lower castes. The situation becomes gruesome when, the state machinery becomes complicit in the acts of violence and deprivation against the downtrodden. There is therefore a manifest need to institute provisions for immediate and special state action against the perpetrators of acts as have occurred at Sardarshahar, in the law and codes of the operating procedure of the government institutions.

The first step to be taken by the Rajasthan Government should have been the setting up of a inquiry under a panel consisting of at least two judicial officers not below the rank of a district judge, preferably with one being a lady judicial officer. Another member of such a panel should have been a person of repute, appointed on recommendation of a body like the State legal services authority. No such step has been taken. Departmental action only has been resorted to. The policemen that is, the perpetrators of the alleged criminal assault at Sardarshahr, have been placed under suspension and cases filed under IPC Sections 376D, 376-2A, 343 and 323 for gangrape, police officer committing rape, wrongful confinement and causing hurt, respectively. It is to be seen if these measures have the desired outcome in a reasonable timeframe. However, the steps taken may be apparently insufficient because without a foolproof chargesheet, the case may drag on, even the charges may get toned down and final conviction may elude the prosecution. Consequently, the accused may get enough opportunity to get back to duty in the course of time and also challenge their punishment which could be suspension, break in service and seniority, reduction in pay, removal from service, etc. The long route of legal recourse to these police personnel, is also open. Without denying a chance to defend themselves under a transparent administrative or quasi-legal procedure, the state perpetrators of such crime resulting from social bigotry and hatred, should be subjected to a fast-track procedure appealable only to the High Court. The punishment should be commensurate with the societal impact and heinous nature of the crime committed.

The political milieu, in which such crimes are being committed, is least conducive for countervailing action. The Congress Party’s State Government, led by Ashok Gehlot, is facing the consequences of the Sardarshahr incident. Matters have been aggravated by Bhanwar Lal Sharma, a Congress MLA from Sardarshahar, intervening to defend the action against the affected SC woman. The State, ruled by the BJP over the past decade and earlier by the Congress Party, does not seem to have done anything substantive to change the people’s mindset or inculcate reformist measures to protect the cause of those at the lower rungs of the social hierarchy. In fact, the situation has changed for the worst. Otherwise, it is difficult to explain the incidents of mob lynching on communal grounds in the State, such as for the alleged transportation of cattle for slaughter and selling beef, and other harassment. The persons, operating the State machinery, cannot remain unaffected by a mindset in the public domain which is intolerant of those in the social order who are considered not in sync with the majority’s psyche, be it in communal matters or social issues. Therein lies the dangers to India‘s democracy, its present polity and constitutional framework.

India signed the United Nations Convention Against Torture (UNCAT) on October 14, 1997 though not ratified it as yet. Though the Government of India declared itself committed to uphold the principles of the UNCAT, for certain political reasons it has not gone through the ratification process. These broadly seem to be induced by the apprehension that counterin-surgency state action in places like Jammu and Kashmir and in the North-Eastern States may be scrutinised in the context of the commitments under the UNCAT. The Law Commission of India, in its October 2017 recommendation to the Centre, has however opined that the Indian state cannot claim sovereign immunity for actions by its executive and personnel which violate the principles enunciated in UNCAT against torture. Notwithstanding this backdrop, India, as a well-established democratic state with full commitment to the observance of human rights, cannot allow the perpetration of anti-humanitarian acts by state personnel as in the Sardarshahr case. The instant case concerns a criminal act and state torture and impinges on the responsibilities and commitments emanating from the UNCAT. The Government of India therefore cannot be oblivious to the fallout of this incident and many other similar happenings arising from different public or individual motivation.

Though law and order and prevention of threats to life and liberty is a State subject as per the allocation of responsibilities under India’s Constitution, such matters, concerning criminal physical assault and inhuman torture motivated by apparent social hatred, are de-facto in the domain of social justice and concern the Centre and the nation at large. Therefore, a consensus should be evolved among the Centre and the States to deal with such atrocities in a specially institutionalised manner. The National Integration Council (NIC) could have been a proper forum to deliberate and evolve a consensus on such issues. The present set of NDA governments, however, do not seem to have much faith in institutions like the NIC or adopting a consensual approach, and instead may like to leave it to the States to deal with such issues, which would be a micro-level approach.

Finally, the Sardarshahr incident has affected the rights of the socially lower classes, rights of women and rights of women subjected to rape. The fundamental right to life and liberty of the victim has been severely jeopardised. Prima facie, it is a case of inhuman torture committed by the state. Redressal for such transgression of human rights and rights, endowed by India’s Constitution, have to done by the Indian state and its judiciary. It is to be seen how they eventually do it.

The author is a retired IDAS officer who has served in senior appointments of the Government of India and State governments. The views are personal.