In the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. A girl or a woman in the tradition-bound non-permissive society of India would be extremely reluctant even to admit that any incident that is likely to reflect on her chastity had ever occurred… [A rape victim’s testimony] does not require corroboration from any other evidence, including the evidence of a doctor. — Supreme Court justices Arijit Pasayat and P Sathasivam, July 2008
FOR DECADES, the Supreme Court of India has cleaved to a rigorous legal standard in cases of rape: the testimony of the victim is enough evidence to launch the prosecution of the accused. Successive judgments over the years have reinforced this position. Thousands of convictions of alleged rapists have been effectively obtained on the basis of victims’ testimonies, with no corroborative evidence sought or offered. Often, the courts have overlooked minor discrepancies in the victims’ accounts, if the main narrative holds up.
Jurists and social commentators in India have long argued that, apart from being a most heinous crime against a woman’s person, her rape doubly curses her in the Indian society by imparting her a stigma that no other crime matches. That is why criminal investigation processes that the police must follow, as well as the judicial procedures prescribed when charges of rape arise, are unambiguous. This is best illustrated in the case of Hindi film actor Shiney Ahuja, who was arrested last month in Mumbai when his maidservant accused him of raping her. Ahuja has been denied bail, and rightly so, for his right to seek justice shall arise at the trial and not before or outside it.
What happens when the victims are destitute tribal women with no access to police, judiciary, media?
But what happens when rape becomes a brutal tool of class oppression in a wider social, political and economic war that men wage against one another, the raped women merely the pawns on their chessboard, the act of rape itself a side story, a cold-blooded strategy to terrorise an entire population into submission? What happens when the victims of rape are some of India’s most destitute tribal women, who live in virtually unreachable forests in subhuman conditions; who have absolutely zero access to the police, the judiciary, the media; whose verdant lands the mighty industrialists covet because they hold in their womb some of India’s richest mineral resources?
What happens when those accused of rape are the hired guns of a dubious state-backed militia that is the frontline in one of the world’s most brutal civil wars? What happens when the Indian State pivots this war against deeply entrenched Maoist insurgents on a take-no-prisoners approach, because unless the Maoists are killed off and millions of tribal people removed from their forests, hills and fields, corporate India won’t be able to claim the bounties of their lands? What happens when it is abundantly clear that accepting the charges of rape from such women would be very dangerous indeed because that step just might begin to unravel this barbaric anti-people militia, bringing an end to its unchecked reign of terror?
THIS IS the heartrending story of Chhattisgarh, and all the above questions have only one answer: the Indian State cannot afford to honestly investigate these women’s charges of rape and secure them justice. Therefore, it must be forced to do so. In the following pages, readers of TEHELKA will find graphic gut-wrenching testimonies of some tribal women of Chhattisgarh describing how they were brutalised by the men of the Salwa Judum, the tribal militia that the state government sponsored four years ago and has since terrorised tens of thousands of innocent tribal people, burning their houses down, forcing them to abandon their villages where they had lived for generations, to move into squalid government- controlled “camps”.
We traveled deep in the state’s highly forested southern region known as Bastar, and located six women who were raped by the men of the Salwa Judum [literally, peace movement]. We also spoke to one man who saw his sister raped and then found her killed; their father, too, was killed then. The women and the man we met voluntarily gave their testimonies to us, which we have recorded on tape. Most rapes pertain to the period following the setting up of the Salwa Judum in 2005.
But the most disturbing part of this story came last year when the Supreme Court asked the National Human Rights Commission (NHRC) to go to Chhattisgarh and investigate the charges of murder, rape, pillage and arson brought against those men of the Salwa Judum who have been hired and armed by the state police as Special Police Officers (SPOs). The report that an NHRC ‘fact-finding’ team wrote is deeply troubling in that it blindly toes the police and government line.
The NHRC report is deeply troubling as it blindly toes the police version. It absolves the accused, too
Created by Parliament in 1993 as an autonomous statutory human rights watchdog, the NHRC has long pretended to be the champion of the underdog. Log on to its website today, and you will be justified to feel a gush of relief at the rather self-congratulatory headlines about jobs well done – “NHRC takes suo moto cognisance of the alleged fake encounter in Uttarakhand and recommends CBI inquiry”; “NHRC takes the railways police IG to task as cops throw pregnant woman from moving train”; “NHRC orders the payment of three lakh rupees monetary relief in a case of death in police custody”.
And yet, the NHRC refused to accept the testimonies of these tribal women of Chhattisgarh that unequivocally detail how SPOs brutally raped them. Instead of making the legally and morally sound recommendation that the state government launch the prosecution of the accused, the NHRC wrote: “During the enquiry of some specific allegations, the enquiry team also did not come across any case of rape which could be substantiated.” Shockingly, the NHRC happily absolved the accused too: “The allegations of rapes levelled against the SPOs and security forces were not substantiated during the enquiry.”
The most stunning fact, of course, is the NHRC’s rejection of the testimonies of five women from a single village – Pottenar in Bijapur district – who deposed before it. Says the report: “The matter was personally enquired from each of the five girls by a lady IPS officer of the team. During the enquiry, it was observed that there were many inconsistencies in the versions of alleged victims, in the petitions given by them, as well as in the statements of the alleged victims. These inconsistencies were with regard to the number of rape victims, number of SPOs who took them away from the camp, number of SPOs who actually committed the act and their identity and the accompanying circumstances.”
Shockingly, the report goes on to say: “All the victims stated that none of them reported this matter to their parents or relatives or anyone else in the camp or to the police.” Because the women raped by policemen did not report the rape to the police, their testimonies are suspect?
So just when did the NHRC convert itself into a trial court? Just when did it become the job of the NHRC to summarily dismiss, without proper investigation, the charges of rape directly brought forward by the alleged victims of that crime?
The NHRC was asked to probe charges also against Salwa Judum. But it spoke mostly to Judum supporters
The chicanery at the NHRC began as it formed the investigative team. Acting on a lawsuit from activist-lawyer Nandini Sundar against the Salwa Judum, the Supreme Court said: “…We feel that in view of the serious allegations relating to violation of human rights by Naxalites and Salwa Judum and the living conditions in the refugee settlement colonies, it will be appropriate if the NHRC examines/verifies these allegations… We leave it to the NHRC to appoint an appropriate fact-finding Committee with such members as it deems fit…”
So what did the NHRC do? To investigate charges of rape against Special Police Officers who are fully backed by the state police and the government, the NHRC decided to send a 16- member team — made up of exclusively policemen and women! This included three IPS officers, four Deputy Superintendents of Police, seven inspectors and one constable. Just why would the country’s premier human rights watchdog not include even one well-respected independent social activist in its fact-finding team? (The team head, former DIG Sudhir Chowdhary, refused to talk about this. “I have nothing to add to what is already in the report,” he told TEHELKA.)
IRONICALLY, THE NHRC investigation in Chhattisgarh was launched at the behest of complainants Nandini Sundar and others, because they claimed that the Salwa Judum was brutalising innocent tribal people of Chhattisgarh. Yet, an overwhelming part of the NHRC report is based on the testimonies of people inside the Salwa Judum camps – all, therefore, predictably speaking in support of the Salwa Judum. An overwhelming number of documents and conversations relied upon are with the state police – whose very conduct the team had gone to investigate. The police and/or other security agencies accompanied the NHRC team’s “independent” visits to the villages to investigate allegations of police excesses. The petitioners complained that, once, after the NHRC enquiry team had visited a village, “the Salwa Judum leaders subsequently went there and issued death threats…” So how did the NHRC investigate this complaint? It sought a report from the state’s Director-General of Police!
In fact, the entire NHRC report reads like a primary school textbook that pares down everything to a simple black-andwhite narrative, the Salwa Judum overwhelmingly white – and hardly guilty of any excesses, absolved of all charges of rape and murder – and the Naxals the blackest of the blacks, the grossest violators of human rights. The 16-member NHRC team toured the region a total of only two weeks. But its report reads like a sociological treatise waxing eloquent on the history of the Naxal movement, offering innumerable sweeping statements without any piece of evidence that they may have collected during their two-week investigations.
Shockingly, the NHRC report says: “From the interaction with the villagers it also appears that many of the tribal girls were sexually exploited by the Naxalites.” And yet, the NHRC did not move to document the testimonies of such girls.
At least one of the petitioners, former CPIMLA Manish Kunjum, says the NHRC report quotes him wrongly that he “admitted during interaction with the enquiry team that the policies followed by the Naxalites were responsible for the spontaneous outburst of the tribals”. “I never said anything of this sort,” Kunjam told TEHELKA. “They are exaggerating my view.”
All is not lost, though. On June 16, 2009, some of these victims saw a glimmer of hope as Amrit Kerkatta, a local judicial magistrate in a Dantewada sub-district, began recording the testimonies of six rape victims after receiving their petitions. On July 3, he heard six witnesses, one for each of the victims. The judge has now fixed the next hearing for July 17.
Sudha Bharadwaj, a lawyer at the Bilaspur High Court in Chhattisgarh who is representing these women, told TEHELKA: “The magistrate has taken the longest possible route to make doubly sure that the testimonies of the women are on record. It is now up to him to prepare the charge-sheet — which the police should have done in the normal course — and commit the case to trial.”
If indeed the accused are finally tried on the basis of the testimonies of the raped women, then the lawyers representing the victims will certainly press these words of Supreme Court justices Pasayat and Sathasivam:
“It is an irony that while we are celebrating woman’s rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of society towards the violation of human dignity of the victims of sex crimes. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in the sentencing policy. Protection of society and deterring the criminal are the avowed objects of law and that is required to be achieved by imposing appropriate sentence.
“We must remember that a rapist not only violates the victim’s privacy and personal integrity but inevitably causes serious psychological as well as physical harm. Rape is not merely a physical assault — it is often destructive of the whole personality of the victim. A murderer destroys the body of his victim, a rapist degrades the very soul of the helpless female.
“A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime… What is necessary is that the court must be conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her.”