INDIA: Abduction and sexual abuse of an actress, and the cacophony so far exposes the putrid social culture in Kerala

On 17 February 2017, in Kerala, a criminal gang abducted and sexually assaulted an actress. The lady was travelling in a car, when a group of persons brought the car to a stop creating an accident, and forced themselves into the vehicle in which the lady was travelling. It is alleged that the men sexually abused the lady inside the moving vehicle, took video of the abuse, and later left the victim free.

The survivor soon sought refuge at one of her colleague’s house, who reported the incident to the police. In the initial statement to the police, it is reported that the survivor has claimed that the men while abusing her, had informed her that they did this upon instructions from someone else.

The incident generated huge media interest which is still the news in the state. Soon after the incident, a few women in the movie industry have formed their own association in the name and style Women in Cinema Collective, the first of its kind in Asia. They pose as reason for forming this exclusive association that there is acute gender discrimination in the film industry.

This women’s collective has alleged that the women in the industry are often mistreated, vulnerable to abuse, and are discriminated at all levels. They further accuse that the Association of Malayalam Movie Artists in which most of them are members is not doing enough to ensure justice to the survivor of the sexual assault.

The state police in the meantime arrested the persons who assaulted the survivor in the vehicle. The survivor is reported to have identified all of them. Based on the statements made by the accused, and initially provided by the survivor, the state police is investigating the case, including to verify whether there is in fact abetment and conspiracy to commit the crime, and if so, who are behind it. The investigation has resulted in the police interviewing several persons and those close to them in the Malayalam film industry.

This case so far has exposed the fetid characteristics of the social life in the state; of the film industry, media, the state police, and what is known as the government. The case is example to how little people of the state care about and have internalised the true meaning of the term justice.

The incumbent Chief Minister of Kerala, Mr. Pinarayi Vijayan, soon after the first set of accused in this case were arrested, made a statement about the incident. The Chief Minister who also discharges the office of the state Home Minister, made a public statement affirming without proof that ‘there is no abetment and criminal conspiracy behind the case.’ Perhaps the minister is not aware that his office is not expected to, and must not at any time make public statements about a criminal case that is under investigation. At the most what his office could do is to confirm whether there is an investigation or not, and must not mention who is guilty and who is innocent.

The survivor has made a statement to the police strongly indicating abetment and criminal conspiracy behind the crime. The police is yet to conclude the investigation. Nonetheless, this did not deter the minister from openly affirming to the media and to the public that there is no abetment and criminal conspiracy behind the crime. In fact, the minister was following the practice in India, where there is no learning that a minister in office must not comment about an ongoing crime investigation suggesting its conclusions.

The simple logic in law, that it is for the prosecution to allege and a court of law to decide, whether a crime as alleged has occurred or not, is not within the knowledge of the country’s politicians. The statement is only a shameful proof to the undeterred practice of politicians illegally intervening in criminal investigations in India. The statement highlights how little knowledge and therefore respect politicians have to the constitutional oath of office and secrecy they affirm when assuming office.

One of the most difficult crimes to prove is abetment and conspiracy – criminal or civil. Irrespective of the nature of the crime that was abetted or conspired or committed, the law requires proof regarding: (i) instigation; (ii) engagement with one or more persons in the conspiracy for the commission of the act; (iii) that the act takes place – in the case of abetment; (iv) there is assistance by an illegal act or omission to commit the act; (v) two or more persons agreeing to do or cause to be done, an act; (vi) that the act must be illegal, or to be done through illegal means; and (vii) that if the agreement is not to commit an offence, then an act besides the agreement is by one or more parties to such an agreement and is in pursuance of the agreement.

It is these ingredients, and a continuous chain of events the police must unearth to prove abetment and/or criminal conspiracy in this case. Indeed, unearthing these elements will also lead to the abettors and/or the conspirators.

Unfortunately, for the state police, such an investigation requires modern crime investigation equipment and skills, and the support of modern technology that is not fully available in India. Hence the police will have to depend upon oral testimonies of the accused, the survivor, witnesses, and others who the police identify as relevant to the commission of the crime. This will take time. The best of the technologies that are currently available to the state police are limited to tracing call records, forensic IT auditing, and DNA sampling. Mere call records however will not be sufficient to prove abetment or criminal conspiracy.

Since the incident was first reported, the media has persistently followed the case. While pursuing the case, often their reporting has appallingly ignored professional ethics, and statutory mandates. At least half a dozen media outlets, during the early stages of the investigation of the crime, named the survivor which was globally broadcast. Even today the mistake continues, especially in saved and reproduced online versions.

The media is celebrating the unfortunate incident. On everything related to the investigation, the electronic media organises live or recorded panel discussions. Unfortunately, most of the panellists they present and the scribes who moderate these panels have zero knowledge of the law and procedures to be followed in investigating a crime.

For instance, for two days one of the panellists introduced by a media outlet as an informed lawyer, has been repeatedly claiming that to prove abetment and criminal conspiracy, it is enough that there is proof to the fact that one of the accused has contacted the other over telephone. He claims that if so much is proved, then the burden of proof shifts to the person accused of abetment and/or criminal conspiracy. This is neither the law nor a correct interpretation of it.

These panels speak to nothing more than utter gossip, often greying the lines between journalism, expert opinions, and voyeurism. All of this is aired regularly during broadcast primetime as the news.

Scribes are camping in front of various places related to the investigation. They pose questions to persons, without any common sense. They ask police officers, who will be arrested next, naming persons whom they fancy as the accused, and to the lawyers appearing for the accused who are already in custody, what their clients have informed them. Privilege of communications do not apply to journalists. It is however a right of the lawyers and their clients.

This vulgarity is defended with the singular remark that ‘the people wish to know the truth.’ The media is conveniently ignoring the principle that ‘the truth’ is to be decided with proof, by a court. Rest are all accusations. In short, the state’s media outlets are keeping up the hype to feed into and flare-up the voyeuristic mind set of the public. They are not discharging any professional duty. The understanding that the media has a role to play in social engineering is absent in the state.

It is this ignorance that is also demonstrated by the survivor’s peers in the industry, by politicians in the state, and many others who have spoken up in support of the survivor. Many have named the survivor in public conversations. Some have apologised for the mistake, whereas others tried to shamelessly defend.

This exposes yet another myth about Kerala, that a high rate in literacy has brought some sense of decency in public conduct. In fact, dozens of public statements, by those who claim to occupy a space in the so called cultural landscape of the state, in which the survivor was repeatedly named, is proof to this.

This unfortunate case is also example to the special attention institutions give to the well-heeled for good or bad, in India. The case is example to the putrid reality in India that the women in the country are not safe. The case also proves that the normative framework within which India’s criminal justice system functions is deeply flawed. For justice institutions in India would follow two separate procedures, one for the rich and the other for the rest.