This article shall neither delve into whether a rape happened or someone simply went missing while going into the field, nor the atrocity of dragging someone by their dupatta while injuring their neck and spinal cord. The authors shall not devote space to how abominable the incident is. Protestors shall be buried under pandemic law violation litigation. A fundamental right to protest peacefully under Article 19 exists. Despite being lawyers, we fail to understand the legal violation in a wish to offer condolence and support to the victim’s family. We foresee being framed as anti-national, seditious, systemic dismantlers of the Uttar Pradesh government. We wonder what the government so ferociously seeks to protect — after having violated every possible fundamental right of its people?
The Sexual Harassment of Women at Workplace Act is a product of Vishaka v. Rajasthan. Underneath this case, lies buried a Dalit female victim. Bhanwari used to work for the Women’s Development Programme in Rajasthan. While campaigning against child marriage, Bhanwari identified families in her village who engaged in the practice. She was successful in preventing a marriage in the family of dominant-caste Gujar men. This led to her rape at her “workplace” — in a field. She identified Gyarsa Gujar and Badri Gujar as responsible for raping her. Bhanwari’s husband, Mohan, was also physically assaulted by the same men. The Supreme Court chose to expand the definition of sexual harassment to make it universally applicable at all sorts of workplaces. However, the only homage we offer to Bhanwari is a singular mention of her in the Vishaka judgment.
A 19-year-old Dalit was woman allegedly gangraped by four men. The incident occurred while the victim was accompanying her mother to the field. She sustained injuries and died eventually. The police deny the occurrence of rape.
“Intersectionality” is about facets of a person’s identity such as gender and caste, which construct privilege and aid discrimination. On deconstructing each facet of the victim’s identity that makes her more vulnerable as a recipient of violence, her caste stands out. Kimberlé Crenshaw’s traffic analogy can be superimposed here. If the victim from Hathras stood at a traffic intersection and each of her identities were separate roads, it is impossible for us to decipher whether she was hit by a truck from the road for “caste” or “gender”. On a ladder of oppression, being female puts the victim at the bottom — but then being Dalit shoves her down further.
The victim’s body was cremated by the police hurriedly. Videos show relatives throwing themselves at the ambulance begging to see the victim. Opposition MPs have cases against them for violating pandemic laws, merely because they led a protest march to meet the victim’s family. An MLA from the ruling party claims that rape does not occur if parents teach their daughters good values. Which lessons on good values did Bhanwari Devi and the Hathras victim forget? An ex-MLA from the ruling party held a meeting in support of the accused. Some lessons on good values seem skipped here.
Q. What was the urgency behind cremation? Was it to prevent a second postmortem?
The hasty and forceful cremation is a violation of the victim’s right to dignity under Article 21 of the Constitution. This is supported by the cases of Pt. Parmanada Katara vs Union of India (1995) and Ramji Singh v. Uttar Pradesh (2009)
Q. Why was the district magistrate himself threatening the victim’s family?
Video clips show the district magistrate pressuring the family to change their statement. He is seen threatening and intimidating the family. His role and interests in speedy disposal of the victim’s body need to be probed under Section 201, Penal Code.
Q. Why were 11-day old worthless samples sent to the forensic laboratory?
Instead of taking medical exam samples of the rape victim within 24 hours under Section 164A, Criminal Procedure Code, the samples were taken 11 days later. The time lapse between the alleged rape’s occurrence and the time of carrying out the medical examination renders these samples worthless. The state’s role behind this delay elicits investigation. Policing aside, seminal stains in a victim’s body are inessential to prove rape based on Uttar Pradesh v. Babulnath (1994).
If the above fails to prove rape, then under Section 32(1), Evidence Act — solely based on the victim’s dying declaration — the rape must be upheld. There is a presumption that on imminent fear of death, every word uttered by a dying person is true. Nobody wants to meet the maker with a false foot forward. This is one of the rare cases where the dying declaration is available on an audiovisual platform and captures every single question and answer put to the victim by the police officer. The dying declaration does not need to be corroborated based on Ashabai v. Maharashtra (2013). Minor discrepancies in the declaration can be overlooked due to pain and suffering of the victim based on Abrar v. Uttar Pradesh (2011).
And then, I reached a fork/I didn’t know which needle hurt more/the one that read “DALIT” or another that read “WOMAN”/I’m sure I was not as pathetic a human being, as I was rendered in my life and even after/I am not India’s daughter/I am what no daughter in India wants to be/I am the violence your mother’s pillow hides/and the silence into which no law confides.
This article first appeared in the print edition on October 9, 2020 under the title ‘The Hathras dead-end’. Tulsi is a Senior Advocate and MP, Rajya Sabha. Puri is an associate at Tulsi’s chambers.
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