A rehearing in Kerala

THE Suryanelli case, relating to the alleged abduction and sexual exploitation of a minor girl by several men over 40 days in 1996, was the first in a series of prominent “sex racket” cases in Kerala in which police inquiries have remained suspect in the public eye, court proceedings inconclusive, and verdicts controversial. While the young girls involved in them have been hounded by society and the media, paraded around as part of police inquiries and humiliated along with their families, many of the accused, among them some prominent politicians, have evaded legal scrutiny and the hand of justice for years.

Several such cases are now getting renewed attention in the wake of the Delhi gang-rape incident and there is an increased demand for speedy court proceedings in such cases. Appeals against a controversial verdict of the Kerala High Court setting free all the 35 accused, except one, in the Suryanelli case, for example, had been pending before the Supreme Court for over eight years. This was brought to the notice of Chief Justice of India Altamas Kabir by the Janadhipatya Mahila Association in the wake of the Delhi incident. Subsequently, the Supreme Court decided to take it up for hearing on January 31, and on the first day itself, the Bench of Justices A.K. Patnaik and Gyan Sudha Misra set aside the contentious High Court verdict of 2005.

The Kerala High Court had, in fact, let off all but one of the 35 accused citing among other reasons, mainly: (a) the absence of “convincing evidence” that the victim was an unwilling partner in sexual intercourse with all those men; (b) that the accused could not be considered as guilty of rape (of a minor) as the girl had then (just) passed the legal age of consent (16 years), above which consensual sex would not be considered under law as “rape”; (c) that she had ample opportunities, which she did not use, to escape from her captors or inform others of her plight; (d) that there was evidence that she had been of “deviant behaviour” earlier (like attempting to mortgage her ornaments and spending the amount given by her parents to remit the hostel fees for dubious purposes) and therefore her statements could not be taken at face value in the absence of corroborating evidence; and (e) that the accused could not be punished for the offence of gang rape (Section 376(2) of the Indian Penal Code) either, as there was no “culpable common intention (among them) to commit rape”.

Special court’s verdict Earlier, in 2002, the trial court—in fact the first special court established in Kerala to try sexual assault offences—had come to dramatically different conclusions and had sentenced all the 35 persons to rigorous imprisonment for varying terms.

There were two cases relating to the Suryanelli scandal before the trial court, the first one with 40 people as accused and the second one involving the kingpin alone (who was initially absconding)—both regarding the same offences of “alleged kidnapping, wrongful confinement and procuration of a minor girl, rape and gang rape of the victim”.

The nature of the case as seen by the trial court is evident from its description in the judgment that the kingpin, a lawyer named S.S. Dharmarajan, was a “hardened criminal” and that his act of ravaging the life of a docile teenage girl was “so devilish” that he deserved no leniency. The court extended the maximum punishment to him under Section 376 (rape) and Section 376(2)(g) (gang rape) of the Indian Penal Code.

The special court also pointed out that without considering the victim’s tender age and her health the accused used her to satiate his lust and that as a lawyer he should have known the ramifications of his “gruesome criminal act”. What had occurred was not only a crime against the victim but also a violation of the moral habits of society, the trial court said, and termed it as being among the rarest of rare cases where the maximum sentence provided by the law should apply.

However, the High Court, in its order, which one of the Supreme Court judges described as “shocking”, expressed the doubt whether the girl’s 40-day ordeal was not the “willing journey of a misguided girl above 16” and claimed that “when most of them entered her room or when she entered their room, the male indictees were guilty only of the immorality of going to a woman, who they thought was a prostitute”.

While dismissing the conviction and sentences awarded by the trial court, the High Court judges K.A. Abdul Gafoor and R. Basant said in their controversial order: “One should not approach the question of acceptability of the evidence in an oversimplified manner—that the victim is a girl of tender age, that is sixteen plus; that she has no reason to consent to sexual intercourse; that love, lust or money could not have persuaded her to consent; and that consequently she would not have consented”.

After eight years when it finally took up the appeals against this, the Supreme Court set aside the High Court order and its decision that set free all except one of the accused in the case. The High Court has been directed to hear the appeals of all the accused once again and pass fresh orders on it within six months. The Bench also directed all the accused to file fresh bail applications (as the earlier trial court’s original order has come into effect) before the High Court in four weeks and asked it to pass appropriate orders uninfluenced by the Supreme Court’s orders.

The Supreme Court was critical of the High Court acquitting all the accused on the basis of the evidence in the second appeal pertaining to the key accused alone and, strangely, not taking into account the evidence in the first appeal involving 40 people. The Bench asked the High Court to consider the bail applications of each of the accused on their independent merit. It said the High Court’s (most shocking) conclusion that she was a willing partner in sexual intercourse might be true perhaps “for one accused but not for all the others”.

The High Court had found Dharmarajan, the prime accused, alone guilty, and that too only for kidnapping and selling a minor for purposes of prostitution, and reduced his punishment from the life term awarded by the trial court (for rape and gang rape) to five years’ imprisonment and the fine from Rs.50,000 to Rs.5,000. The High Court order was widely seen as shocking for the message it conveyed and the lack of sympathy that it displayed for the extreme ordeal that an ignorant, immature village girl who was barely above 16 years of age underwent at the hands of a sex racketeer and the nearly 40 tormentors whom the court had allowed to get off scot-free through its decision.

Though the case is nowhere near settled, the Supreme Court’s much-delayed intervention has come as a morale-booster for the victim, her family and the organisations that have been fighting on her behalf for so long.

Gender insensitivity Various women’s organisations and human rights groups had come together to fight against the High Court verdict, which they termed as one more instance of the “gender insensitivity of the judiciary” and a “disappointment” in the context of rising instances of sexual harassment and violence against women in the State.

The story of the 16-year-old schoolgirl from Suryanelli, a village in Idukki district, first came to light through a police complaint filed by her father on January 16, 1996, the day his daughter went missing from her school hostel. Despite a police inquiry, the whereabouts of the girl was not found out for about 40 days, until she reappeared at her father’s office thereafter.

The prosecution’s case was that the girl, who was in love with a private bus “cleaner”, Raju, was enticed, blackmailed and forced to run away with him from the hostel in Munnar as a result of a conspiracy hatched by three of the accused. While her “lover” disappeared at some stage during the journey, the girl was followed and befriended by a woman, Usha, the second accused. She offered to help her reach her aunt’s place in Kottayam, but instead handed her over to the kingpin, Dharmarajan.

On the pretext of taking the girl to her relative’s house, Dharmarajan took her to a lodge where he allegedly raped her. Subsequently, she was threatened, held in coercive confinement, drugged and taken to various places in Kerala and Tamil Nadu and presented to several men over a period of 40 days.

Later on, when she fell seriously ill and was no longer of any use to her abductors, she was given a small amount of money and threatened with dire consequences if she told anyone about what had happened. They released the physically and mentally traumatised girl on February 26, 1996.

The next day she gave a statement before the local police revealing her ordeal, and eventually a case was filed against 35 persons for “kidnapping, wrongful confinement, procuration of minor girl, rape and gang rape on her”.

However, it was only the beginning of yet another ordeal for the girl, a story that would be repeated soon in Kerala in the case of the victims of several similar cases that came to light in quick succession.

The sensational media coverage that followed was largely unsympathetic to the girl. The local police, it was alleged, even tried to discourage her parents from pursuing the complaint; the investigation itself was inordinately delayed and in the name of identifying the culprits the young woman was paraded all over the State.

Moreover, the opposition Left Democratic Front (LDF) made it one of the main campaign issues during the 1996 Lok Sabha elections. Just before the elections, the girl had claimed in a letter to the then Chief Minister A.K. Antony that one among the men who raped her at a guest house at Kumily was the then Union Minister (now Rajya Sabha Deputy Chairman) P.J. Kurien (as she realised after seeing his photograph in a newspaper).

Kurien was then the United Democratic Front (UDF) candidate in the Mavelikkara Lok Sabha constituency. After the first police investigation into his role in the case he was exonerated a month before the election. Subsequently, he won the election, despite the LDF campaign.

From then on, however, the character of the case changed and it became a highly sensitive political issue in Kerala in which opinions about the enormity of the crime committed against the minor girl seemed lost as its consequences began to be discussed mostly only with political overtones.

In March 1999, the girl filed a private complaint with the Judicial First Class Magistrate’s court at Peerumedu seeking the inclusion of Kurien in the list of the accused. The magistrate’s court recorded the girl’s statement and issued summons to Kurien, as it found a prima facie case against him. Kurien then approached the High Court seeking total discharge with respect to the proceedings on the complaint. Though the High Court dismissed it initially, a long legal battle ensued in various courts, which ended in 2007 when a single Bench of the High Court set aside the entire proceedings against Kurien. Though the CPI(M) leader V.S. Achuthanandan went on appeal against this High Court ruling, a Supreme Court Bench led by (former Chief Justice) K.G. Balakrishnan decided in favour of Kurien.

Investigators, including those in a special investigation team appointed by a succeeding LDF government, maintained that they could not find fool-proof evidence that supported the girl’s claim regarding Kurien. Three police inquiries were conducted by both the UDF and LDF governments subsequently, but Kurien’s name did not figure in the charge sheets.

Following the recent Supreme Court decision and the reopening of the case, however, the victim again wrote to her advocate in the Supreme Court to explore the possibility of filing a review petition seeking a fresh probe against Kurien, which immediately triggered demands for his resignation as Deputy Chairman of the Rajya Sabha. Kurien has continued to maintain that the girl’s claim must certainly be a case of mistaken identity or a deliberate attempt by his political enemies, especially from within the Congress, to malign him.

In the public eye, and as police investigators have pointed out, on one side was the statement of the victim that Kurien had raped her at the guest house and on the other were a handful of witnesses, including G. Sukumaran Nair, the present general secretary of the Nair Service Society, who have told the police that Kurien was in Thiruvalla and Changanassery (at least about three hours’ drive from Kumily) at the time when he is alleged to have been at the guest house.

In the wake of the apex court’s direction to the High Court to try the case anew, while some witnesses stuck to their claims supporting Kurien, a few others backtracked. New “witnesses” too emerged, claiming that they had indeed seen Kurien at the Kumily guest house on the crucial day. At the time of writing this report, Dharmarajan, the only person convicted by the High Court in the case and who was absconding for a long time, appeared on a television channel to allege that it was he who took Kurien in his car to the Kumily Guest House on that day and that the then principal investigator of the special investigation team had forced him not to name Kurien in any of his statements. The legal validity of such statements is being examined as part of a running debate on Kurien’s role.

With the opposition LDF and several women’s organisations demanding a fresh probe against him, Assembly proceedings stalled continuously from February 4, and demands growing for Kurien’s resignation as Deputy Chairman of the Rajya Sabha, Chief Minister Oommen Chandy, who had initially ruled out a reinvestigation, eventually said that the government had decided to seek legal opinion on the opposition’s demand. The legal opinion given subsequently said there was no need for a reinvestigation against Kurien in the case.

Meanwhile, the victim’s mother wrote to Congress president Sonia Gandhi on February 7 stating that it was heartbreaking to learn that the Congress high command had decided to support Kurien. “We bona fide believe that Kurien has exerted undue influence over the investigating officials in order to escape from the law and he has succeeded in that,” she said, while seeking Sonia Gandhi’s personal intervention for a reinvestigation against Kurien.

Its political repercussions apart, the Suryanelli case and its tortuous course have served as the mould for several sex racket cases that have come to light in various parts of Kerala. They are easily identified today by names of villages or towns of the victims, such as Kiliroor, Kaviyoor, Vithura, Thoppumpady, Pandalam and Poovarani, and, the most well-known among them, the Kozhikode (ice cream parlour) case.

In almost all of them, investigations have changed course abruptly, legal processes have been derailed with impunity, especially when it involves prominent politicians, and the young victims and their families have continued to suffer in silence while their tormentors roam free.

The result, unfortunately, has been a general tendency to see such crimes as ordinary occurrences and to blame the victims when girls and women fall prey to sex mafias, get raped or are otherwise sexually harassed, or are killed or commit suicide as a consequence.

The intervention of the Supreme Court has come as a relief, for, just like delayed justice, an uncaring, skewed judicial interpretation is all it takes for such social malaise to take deeper roots.