Hope for the victim

The judgment in the Bilkis Bano case deserves careful study by policemen, lawyers, prosecutors, activists and, most importantly, trial court judges.

THERE is all round satisfaction that the violence inflicted on Bilkis Bano, the 21-year-old who was gang-raped by a Hindu mob at Randhikpur village in Gujarat on March 3, 2002, has been at least partially avenged. Although seven of the accused put up by the Central Bureau of Investigation (CBI) for trial before Special Judge Dalvi of Mumbai were acquitted, it is gratifying that 11 were convicted and sentenced to life.

This judgment is significant in many ways and deserves to be studied in detail by policemen, lawyers, prosecutors, human rights activists and, most importantly, trial court judges all over the country. If these groups do not take up this exercise seriously, with a view to learning from the principles enunciated by Judge Dalvi, victims like Bilkis will not in the future receive justice from the system.

Also, I do not believe that the kind of violence perpetrated on Bilkis will not be repeated elsewhere in the country. This is because the rape of Bilkis was not motivated merely by communal hatred. It was the product of several human weaknesses, chief of which was, of course, sheer lust.

The recent molestation episode on New Years eve in Mumbai and the series of carnal attacks on women tourists in Rajasthan (including the one involving Orissa Director General of Police B.B. Mohantys infamous son) fortify the impression that women are not exactly safe in our environs. There may be an element of generalisation here. Notwithstanding this, it would be arrogant and naive to rationalise the Bilkis case and other incidents in India by taking the position that women are not safe in other parts of the world either. The most obvious feature of the Bilkis case is the gaping holes seen in our criminal justice system. The Gujarat Police first dropped action in the case on the grounds that there were far too many inconsistencies in Bilkiss version of the incident.

In the context of Godhra and what followed in 2002, Gujarat was not the best of places where a Muslim woman could succeed in establishing her credibility. She had to do much more to convince the police that she was speaking the truth. Fortunately for her and those backing her, the National Human Rights Commission (NHRC) and the Supreme Court came to her rescue by transferring the case to the CBI. And the CBI rose to the occasion wonderfully well, as evidenced by the Dalvi verdict.

I know the CBI has many detractors. However, here is one instance where even diehard sceptics of the CBIs objectivity and professionalism would concede that the investigating agency did undo injustice. (If the Bureau has been found wanting in some corruption investigations, it is simply because of the ruling partys desire to bail out its favourites and the element of subtle pressure it brings to bear on investigators. Here and there, judges have also been guilty of questionable rulings that will not stand up to scrutiny in higher and more objective fora.)

The CBI unravelled important facts of the inhuman crime against Bilkis through scientific investigation with the help of the Central Forensic Science Laboratory. A mass grave of the victims was located and the remains of some victims were collected. Their identities were established with the help of photographs seized by the CBI during its investigation.

Examination of witnesses was the next most challenging task. When witnesses are hard to come by even in routine crime, it is impossible to locate credible witnesses who speak with clarity and without fear in a case of mass communal fury. An investigators skill is tested severely here. The CBI had a team that discharged its role commendably under trying circumstances and in a hostile environment.

Witness protection exists in a rudimentary form in our country. We have to borrow from the United States, which has a nearly foolproof legislation. Bilkis was initially unwilling to depose for fear of reprisal. It was only after repeated assurances that she came forward to relate the happenings of March 3, 2002, as best as she could.

Fortunately, we have provision in our criminal law for an in camera deposition. This helped Bilkis a great deal in coming out with a cogent and uninhibited account of the attack on her. It was possibly this that convinced Judge Dalvi that she was speaking the truth. The evidence of a few other reliable eyewitnesses may have also had a bearing on how the Judge viewed the happenings.

Judge Dalvi displayed pragmatism and courage, without which the 11 convictions would not have been possible. The apex court has repeatedly expressed its views on the quality of evidence that should persuade lower courts and High Courts to opt for a conviction in rape cases. The sum and substance of the Supreme Courts stand is that trial courts should not go by the number of persons supporting the prosecution. They should look for credibility rather than quantity.

Naturally, the victims account in a case of rape is sacrosanct. A conviction should be the response even if the victim alone states the basic facts as long as her demeanour before the trial judge inspires confidence. The 11 convictions in the Bilkis case are based almost wholly on oral evidence. This alone shows that Judge Dalvi was pragmatic and humane.

The Gujarat Police did not distinguish themselves in the case. Their decision to drop action on the first information report (FIR) registered on Bilkiss complaint was dubious. There is more than a suspicion that the move was made under extraneous pressure. This allegation is difficult to prove but is one that is supported by public opinion.

When a police force is under the thumb of the State government, we can hardly expect professionalism from the police. The hopes raised by the Supreme Court ruling of September 2006 on police reforms have proved unwarranted. The apex court has been unable to push through the reforms it has in mind, and State governments, reluctant to give up their stranglehold on the police, are resorting to every trick in the trade to sabotage the introduction of changes in the way the police work and are controlled by the political executive.

Even after the CBI filed a charge sheet in April 2004 against 12 private individuals, six policemen and two doctors, there was no great assurance that the trial would be free and fair. There was a nagging fear that the State government would undermine the process and help the accused go scot-free. This was the apprehension that influenced Bilkis to approach the Supreme Court for a transfer of the trial outside Gujarat. The proceedings were transferred to Maharashtra and Judge Dalvi was appointed to hear the case. This was an unusual procedure that helped the victim to obtain justice.

How many women victims have the tenacity of Bilkis? How many get the backing of the judiciary, the NHRC and the media? The rate of victimisation of women is climbing, at least in perception if not in terms of statistics, and government and social institutions can hardly cope with the volume and growing audacity of anti-social elements. Unless the community organises itself in the form of a large number of dedicated groups, Bilkises will go unavenged.

We talk of police insensitivity to crimes against women. The way Bilkis was handled undoubtedly strengthens this view. No solution seems in sight. Training methods have had very little impact. Women police wings have brought in marginal relief. The strong belief that policewomen themselves indulge in unethical practices has, however, reduced their effectiveness.

A final thought. I am more than convinced that our movies systematically promote harassment of women. I am willing to be challenged on this. Even some enlightened producers have been guilty of depicting eve-teasing as if it were mere fun and frolic, which it definitely is not.

As long as this light-hearted approach is fashionable and lucrative, I do not see any prospect of a drop in crimes against women.