Custodial killings and role of judiciary
As per a report, five people die daily in police custody, mostly belonging to poor and marginalized communities, but the custodial torture and sexual assault in the Thoothukudi district of Tamil Nadu, which resulted in the death of P. Jeyaraj and his son J. Bennix, has sent shockwaves across the nation. While the incident is being compared to the killing of George Floyd in the US, it is pertinent that we turn back the clock 40 years, and see this in the light of the infamous Mathura Rape Case and the stained Supreme Court judgment of the same, as those collectively, for the first time, resulted in a nationwide debate and agitation against sexual assault in police custody. The unfortunate event, simply put, was that a tribal girl, 14-16 years of age, was raped by two police constables, while she was in their custody.
The analogy is apposite, not only because the two incidents relate to custodial police brutality but also due to sexual violence, which is not being discussed in the ongoing agitation due to the Tuticorin incident. It is long overdue that we introduce gender-neutral rape and sexual assault laws in our country, but this aspect has yet again failed to find a place in the ongoing debates. The voices raised against police brutality in the late 70s are akin to the voices raised now, but there is a notable difference. While the agitation and the criticism had no impact on the Judiciary back then, it had an impact on the Executive which brought the Criminal Law (Amendment) Act 1983. Comparing it with today’s situation, the agitation has put the Judiciary on its toes, but it has no impact on the Executive. This article will trace the impact of public voices on these two pillars of democracy, in the light of the comparison of the two incidents.
In the Mathura Rape Case, reported as Tukaram and Ors. Vs State of Maharashtra [AIR 1979 SC 185], a 3-judge bench of the Hon’ble Supreme Court decided in favor of the accused constables, which resulted in their acquittal. The reasoning given by the Apex Court to reach this conclusion was appalling and antithetical to the women’s rights as enshrined in our Constitution. The bench, inter-alia held that: “no marks of injury were found on the person of the girl after the incident and their absence goes a long way to indicate that the alleged intercourse was a peaceful affair and that the story of a stiff resistance having been put up by the girl is all false”. The reasoning reeks of misogyny and regressive norms of patriarchy and was hence subject to a lot of criticism.
A similar observation was seen in an anticipatory bail order passed by a single-judge bench led by Krishna S. Dixit J of the Karnataka High Court. While granting the bail, it was observed that: “the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished.” The complainant’s story was also rubbished because she went to her office at 11 pm in the night, consumed alcohol with the accused, and allowed him to stay till morning. Speaking against the remarks, and in a way reminding the Courts that ADM Jabalpur is not the only judgment of the 1970s which needs to be “buried 10 fathom deep, with no chance of resurrection”, several women rights activists wrote to Krishna S. Dixit J himself, requesting him to expunge the remarks from the order.
In a separate letter, a Supreme Court lawyer, Ms. Aparna Bhat, wrote to the current Chief Justice of India, S.A. Bobde J, and Supreme Court judges, Justices R. Banumathi, Indu Malhotra and Indira Banerjee, to "intervene and issue an advisory to all the High Courts and the subordinate courts in the Country to refrain from commenting on the conduct of the victims, exercise restraint to ensure that their judgements do not reflect stereotypical notions that one may nurse about women, shun misogyny and strive towards enhancing the dignity of women while preserving the sanctity of the judiciary".
This was similar to the open letter addressed on 16th September 1979 to the then Chief Justice of India, Y.V. Chandrachud J, against the Mathura Case judgment. That letter was of no avail to the poor Mathura then, but this time the mistake was corrected as Krishna S. Dixit J himself decided to expunge part of the remarks made by him. This would not have been possible without the unanimous criticism by the public.
As the Thoothukudi case, on the judicial side, is only at a nascent stage of asking for a status report, ordering a judicial inquiry, and initiating contempt proceedings, the Judiciary has not yet faced the flak like it did in the late 70s. This is barring the rightful condemnation of the Magistrate P. Saravanan, who just two days before the incident, had remanded the deceased to police custody without examining them, even though they were visibly injured. A retired Judge of the Madras High Court, K Chandru J, did not mince words when he said that the Magistrate failed to follow the mandate laid down by the Apex Court in the case of D.K. Basu vs State of West Bengal and hence, is liable to be dismissed from office. The Madras High Court is visibly proactive in this matter, owing to the widespread agitation it has caused. While giving the deserved importance to the matter, it was observed by the Hon’ble Court that: “Something like this should never happen again in Tamil Nadu. Now people are even afraid to enter police stations”.
It is usually the Executive which bows down to the demands of the public, but much to the chagrin of various male sexual assault victims, like the father-son duo, there is no discussion on this aspect of the brutality. The barbaric event of Thoothukudi, if just reduced to death, would be highly unjust as the father and son have not merely died of torture, but were also victims of horrifying sexual assault. If witnesses are to be believed, the duo was sodomized and their rectum kept bleeding continuously, but this, in the eyes of law, will be placed on the same footing as other murders in police custody as our Indian Penal Code does not recognize the ‘rape’ of men and transgenders. The Executive, rather than being proactive, has always been reactive in modifying the penal laws on sexual crime, and that too has happened because it succumbed to the widespread agitation and demands made by the public. Rapes, unfortunately, are commonplace in India, but what made the Nirbhaya Rape Case distinct from others was the gruesome way in which the perpetrators inflicted injuries on the victim’s person. The Thoothukudi incident is no different, but the discourse is restricted only to police brutality, hence no pressure is being mounted on the Executive.
Senior Advocate and the-then Rajya Sabha Member, K.T.S. Tulsi moved a bill in the Upper House to make rape laws gender-neutral, but it is pending with no updates of the same. The Mathura Rape Case resulted in Criminal Law (Amendment) Act 1983, Nirbhaya Rape Case resulted in Criminal Law (Amendment) Act 2013, and the Kathua Rape Case resulted in Criminal Law (Amendment) Act 2018, but due to the absence of discussions on gender-neutral rape laws, even in the light of the gut-wrenching sexual assault, it seems unlikely that the Thoothukudi case results in an amendment to make sexual crimes gender-neutral. Due to the patriarchal notions which are seeped into our systems, the father and son will not get complete justice as they were subject to a bigger crime, which we all are failing to recognize. Do not forget, poor Mathura was denied justice due to the same patriarchal notions.
(The author, Krishnagopal Abhay, is pursuing law from Campus Law Centre, the University of Delhi and write on socio-legal issues on Human Rights and Civil Liberty. He can be contacted on krishnagopal3105$gmail)