Jan Sahas on the first two cases of juveniles, tried and convicted for raping a minor under Juvenile Justice (Care and Protection of Children) Act, 2015:
On 26th July 2016, Justice Surbhi Mishra delivered a judgment at Dewas district session court in Madhya Pradesh convicting two juveniles of 10 year imprisonment for raping 14 year old girl and threatening her of grave instances. This is probably the first conviction post the amendment of the Juvenile Justice (Care and Protection of Children) Act 2015 in India which was made in the aftermath of Nirbhaya case where the main perpetrator was also a minor.
The incident of rape of this girl occurred on 15th January 2016 in a village under jurisdiction of Tonkkhurd Police station in Dewas district in Madhya Pradesh state. The victim child, age 14 at the time of incidence, was alone in her home in the evening. Two teenage boys from her neighborhood, who belong to the same caste as her, scaled the walls of her home and entered it through an open window. She was restrained by them. One of them raped her while other captured it on cellphone video. They threatened her that they will make it go viral on WhatsApp, a social media application. They also threatened to kill her.
After this, they left her in her devastated condition. However, the girl did not stay quiet in fear and told her parents and brother when they returned home. Both of these boys were actually friends with victim’s 16 year old brother. The family took immediate action and informed the Police of the incident and got their daughter medical treatment and examination. The police played their part on filing a complete FIR under correct charges and gathering necessary testimonials and medical evidence holistically.
This helped in the judicial procedures which followed. Over the next few days, the accused boys were arrested and also received bail not long after as they were first time offenders and underage (below 18 years of age). Their trial first occurred at the Juvenile Justice Board in Dewas but later, citing the amended law, it was referred to the Session Court. It was said by the Juvenile Justice Board that the boys have been found to be mentally mature as well as above the age of 16 years at the time of committing the crime that they were accused of.The crime also qualifies to be ‘heinous’ (punishment of imprisonment of seven years or more) under section 33 of the amended Juvenile Justice Act. After hearing the testimonials and examining evidence the boys were found guilty by Justice Surbhi Mishra. They were handed over to the Police to be taken to Care homes. At the time of becoming 21 years old, they will be shifted to adult correctional facilities.
The topic of lowering the age for conviction of the juvenile offender in Nirbhaya case had the country in its grasp. This led to a fierce debate among activists, policymakers, and academicians. The amendment was made and it received accent from the President of India and amendment came in to force from exactly 15th January 2016, the day the above mentioned incident occurred (Union ministry of Women and Child Development Notification No. 177 GI/2016). The main accused was three days short of becoming 18 years old while the other was 3 months away from becoming 17 on the date of the incident. Both had crossed the age of 16 years. Thus, the perpetrators could be tried as adults in the session court as per the amendment.
The victim and perpetrators belong to the same community which is a socio-politically dominant group. The Sarpanch of the village also belongs to this community which is Khati Patel. The victim’s family members are agriculturists by inheritance. As it has been seen in rape cases occurring in villages, the victim’s family members were shunned from social interaction by their neighbors, community members, and village in general. The Sarpanch and village even opined that the girl’s family had made false charges. When the accused boys had received bail few days after incident they even dared to roam in front of the victim’s house. This alienation caused trauma to victim’s father. He too started succumbing to the victim shaming. Her mother and brother have always been supportive but the victim started to shun herself away from them.
Jan Sahas has been working for the welfare of dalits, tribals, women, and children since the year 2000 in Madhya Pradesh. Through its outreach at grass root level, it has been Jan Sahas providing support to more than 2000 survivors of rape and sexual abuse and successful in assisting hundreds of victims of violence against women and socially excluded communities’ members to claim dignity and justice in Courts despite in the lengthy and distressful journey. Conviction rate of the cases is 70%. Jan Sahas has been providing psycho-social counseling to victims and their family members to bring them out of trauma and inspire to fight for their rights.
It also organizes a four day residential ‘Barefoot Advocate Workshop’ to make the victims and youth understand the important laws, legal procedures and thereby empower them to be able to fight for their own rights and also inspire other such victims. The above mentioned victim’s family was reached out through newspaper item published within days of incident. Intensive psycho-social counseling and legal aid was provided to their family. Victim was in touch with Jan Sahas counselor almost every day and her father was also counseled to not blame her for the incident.
Through intensive follow up and guidance at every stage, the victim was empowered to withstand the testimonial and cross questioning by defense lawyers in the court. Even the Judge presiding over the case was also sensitive and took objection to an obscene question posed by defense. Now that the decision has been delivered in their favor, the family members are happy to have received such emotional assistance and legal guidance.
Jan Sahas’s ideological position on any issue that it has worked on has been guided by its experience and the learning’s from this case (like many others) takes us to a position that might not find consensus across peer civil society organisations.
In this particular case, when Jan Sahas was told about the alienation being suffered by the victims’ family and the juvenile offenders’ apparent pride of being released on bail, reassuring the family of their struggle for dignity and social status was a challenge. The normalization of violence, and victim shaming caused the family their psychological and physical wellbeing. However, it is only when the conviction took place, the perception of people towards the victim changes. There seems to be no other way than convicting the guilty to a considerable jail term in order to restore the social status of victim. Jan Sahas believes that under the prevalent conditions of innate patriarchal mindset and structure of the Indian society, only faster trials and higher rates of conviction can prove deterrent in short term.
Justice in the form of conviction is also an important goal for the survivor to claim her/his dignity and respect that is so often lost in the process of victim shaming and silencing. The rights of victims are usually trampled and they experience re-victimization due to lack of sensitivity and capacity. The Police, Hospitals, and other stakeholders such as judiciary, media etc. need to have a depth of thinking clarity on the gender issue. In this case, the local village police chouki had earlier refused to file FIR but after calling their superiors at Tonkkhurd Police Station, they complied. In most cases, the refusal from police and even their cooperation with offenders leads to denial of justice itself. The most backward castes and tribes are at the receiving end of such systemic oppression.
As a nation and society we are eons of years away from developing a culture of deliberation and tolerance which are oxygen to this body politic. Political representation often feel obligated to succumb to the highs and lows of public opinion withoutany gendered understanding of the situation. We, who demand castration and capital punishment for rape convicts, fail to see that a criminal is developed in the ecosystem around them. We sow the seeds of gendered norms, patriarchal mindset and then wonder why it has given such a sour fruit! The criminals, especially the juvenile ones, only reveal our dark underbelly. Revenge can never be justice.
In this particular case, these juvenile offenders will be going to ‘care homes’ and later will be transferred to adult correctional facilities, which is a system considered to be failing across the globe. There is no evidence of the juveniles being reformed. The United States and other countries are moving away from it while we are adapting to it. The various stakeholders involved in the whole process of correction, rehabilitation, and reintroduction of convicts in society are far away from being capacitated and sensitized to perform their duties at highest level possible.
We should desire the welfare of all, even those of the convicts, as we try to claim justice for the victims who suffer life unsettling event. Ultimately prevention and deterrence is desirable, but can only be possible when with a matured social consciousness sensitive to violence of various forms. We have to work with men and boys and sensitize them about patriarchy and its dangers. We will have to work through our mass media and create a better environment for individual and society. We have to keep sensitizing various stakeholders involved in all stages of services given to citizens. Till these long term solutions are realized we have to keep struggling without losing our compassion, and vision.