Brutalisation of Kathua girl is a terrifying moment for Indian nation

Caste and religious-based sexual violence against women and children by a dominant group is a well documented practice, apparently from older times in India.

Written by Dr Menaka Guruswamy | Updated: April 17, 2018 6:50:24 pm
Kathua Unnao rape protest Delhi Mumbai Protestors in Mumbai demand justice for Kathua rape victim during a silent protest on April 15. (Express Photo by Kevin DSouza)

India is at a moral, social and legal nadir. On January 10, an eight-year-old girl belonging to the nomadic Bakerwal Muslim community was out in the meadows grazing her ponies. Her body was recovered a week later from a nearby forest. As per the chargesheet now filed, she was kidnapped by four men, taken to a temple in the Kathua area, sedated and then repeatedly raped by each of them as well as a fifth man, and then killed. This eight-year old child was kept alive for a week to be brutalised repeatedly. Who would do such a thing and why?

One of the accused is a special police officer (SPO). These are locals who were notoriously designated as the ‘police’ during the colonial era minus training or qualifications but with a government stipend. A second SPO kept watch on the movement of the Bakerwal community that was searching for their little girl. A third accused who participated in the rape is a retired revenue official, presumably receiving a state pension. This retired official bought along his son, his nephew and the nephew’s friend in a carefully hatched plan of premeditated rape and murder. As per newspaper reports, all were inspired to commit the acts motivated by an ideology of cleansing, wanting to terrify the nomadic Muslim community away from that area and render the area habitable entirely by local Hindus.

The systematic and premeditated rape of women and children of an ethnic or religious community by the male members of another community to secure a territory is recognised as ethnic cleansing, for instance, as perpetrated on a large scale in former Yugoslavia. Caste and religious-based sexual violence against women and children by a dominant group is a well documented practice, apparently from older times in India. It appears to be coming back with a vengeance. However, this is not the end of the nightmare. Subsequently, a sub inspector and a head constable tried to cover up “the incident” (in the words of the Prime Minister). Their cover up efforts also are recognised in the charge sheet.

Needless to say the brutalisation of this little girl is a terrifying moment for the Indian nation. A low point when cleansing of a particular community evidences the moral, social and legal decay of a republic. The death knell for any constitutional democracy, more so one that has already been ravaged by a brutal Partition at its founding. It was during Partition that such acts of cleansing by one community against another were routine and systematic.

But, far from being professionally and personally inspired to ensure that the accused are investigated and charged as per the evidence available, the Kathua Bar Association reacted very differently. On April 9, the day the chargesheet was going to be filed by personnel of the Crime Branch, the Bar Association obstructed police officials from entering the courtroom of the Chief Judicial Magistrate of Kathua. Their actions were carried out in the court complex in unabashed public view. This action of obstructing the course of justice and specifically preventing public servants from doing their duty (an offence under the Indian Penal Code) by the Kathua bar was apparently in support of a call by the Hindu Ekta Manch that asked the filing of the chargesheet be stopped. In a protest organised by the Manch in March, two ministers of the state government from the BJP were present. In the wake of the immense outrage in recent days these ministers have resigned.

Despite the professional conduct of the Kathua lawyers being opposed to all professional and legal norms, apart from being morally reprehensible, no action has been taken by the bodies that regulated them. Lawyers are conceptually a guild, regulated and governed by the Advocates Act, 1961. This statute in turn establishes the Bar Council of India, which has as its ex-officio members the Attorney General for India and Solicitor General as well as an elected Chairman and Vice Chairman. The Bar Council functions to lay down standards of professional conduct and etiquette for advocates, support law reform and promote legal education. The Advocate Act, 1961 also establishes State Bar Councils that will entertain and determine cases of misconduct against advocates on their rolls and maintains a roll of advocates in each state.

Much to my dismay, as a member of the legal profession, not only has the Jammu & Kashmir State Bar Association not proceeded against the Kathua lawyers, but instead only belatedly took out a candle-march in memory of the eight-year-old child. Somehow, I suspect, the Advocates Act has higher expectations than candle marches in response to egregious professional misconduct and criminal acts from within the legal community.

It’s the Supreme Court that has acted by issuing notice to many parties including the Bar Council of India on the basis of a public interest litigation. In the face of such a notice, the Bar Council of India has responded tentatively. One thing is clear, the constitutional democratic republic that is India, founded in 1950 and conceived by legal professionals like B.R. Ambedkar, Jawaharlal Nehru, Sardar Patel, B.N. Rao, K.M. Munshi and others, all members of the legal profession, is slowly dying.

Its gradual demise is being caused by the small and large actions that qualify as ethnic cleansing as well as the ideology of hate that fuels it. Its demise is being fuelled by the apathy of others tasked with protecting the legal process. The inaction of the State Bar Association to punish the Kathua lawyers is indication of the co-option of statutory institutions in undoing the idea of India that our Constitution envisages. A rather sad gift for B.R Ambedkar whose 127th birthday is being celebrated with aplomb by the Indian state.

Dr Menaka Guruswamy practices law before the Supreme Court of India and tweets @MenakaGuruswamy

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