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INDIA: Rape, red tape and bureaucracy- India's police fail vulnerable young woman and her family

May 22, 2012

ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-083-2012

22 May 2012
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INDIA: Rape, red tape and bureaucracy- India's police fail vulnerable young woman and her family

ISSUES: Police violence; rape; torture; violence against women; women's rights; impunity; rule of law
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information from the Association for Protection of Democratic Rights (APDR) concerning a case of rape of a young woman by and officer-in charge (OC) at Bhadrewswar Police Station in West Bengal's Hooghly district on 23 April 2012.

The victim's husband had just prior to this incident served a 45 day sentence for his involvement in a crime. He was requested by police to return to Bhadreswar Police Station on 22 April, which he did, and he was kept in custody until 23 April. At approximately 3.30pm on 23 April, the OC told the victim's husband to summon her immediately to the Police Station. At the police station, the OC, SI Mithun Banerjee, brought the victim to his quarters, where he threatened that if she did not obey her husband would be in grave danger. The victim was too afraid to cry out for help, fearing for her own life. She was then raped by the OC.

The OC's abuse of his position of authority to deceive the victim into coming to the station and then to threaten and violate her demonstrates a perturbing premeditation to his incontrovertibly criminal acts. The husband had been detained for at least a day (overnight at the police station); this was an arbitrary and unlawful detention that led his anxious wife to come down to the police station. This in turn exposed her to the dangers of physical and sexual violence by the officers at the station.

The victim reported the entire incident to her husband, who tried to contact the media and also contacted the APDR. However, the couple also fear punitive action against them for attempting to expose the criminal acts of OC SI Mithin Banerjee, which would have consequences for the reputation and legitimacy of Bhadreswar Police Station and other law enforcement agencies. Further institutional shortcomings at the Chandernagore Sub-Divisional hospital and in subsequent investigations mean that the victim is finding it increasingly unlikely that justice will be served. Instead, the victim may have to live in the shadow and fear and shame for a long time to come.

Individuals have fundamental rights to life, liberty and security of person. Such have been enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Constitution of the Indian State. Unfortunately, such rights are simply denied many individuals within the Indian state. This young couple is just two amongst a sea of forgotten and oppressed, long victimised by corrupt officers and officials, faulty legal apparatus – even by civil societies that choose to do nothing. We therefore urge you to write in to the relevant authorities today urging them to take all necessary actions to bring justice to these individuals.

CASE NARRATIVE:

An inquiry undertaken by Association for Protection for Democratic Rights (APDR) reveals the following facts.

The husband of Abhaya (not her real name) had been arrested in a dacoity case and was released after 45 days in custody on 21 April 2012. That very night, two policemen from Bhadreswar Police Station chanced on him and asked him to present himself at the police station, which he did the following day (22 April). The OC demanded the husband summon his wife to the police station over the phone. The OC also noted down Abhaya's and her husband's cell phone number.

At around 3.30pm on 23 April, the OC requested that Abhaya immediately come down to the police station concerning her husband's case. She proceeded to the police station in an auto which the media reports to have been a police vehicle. When the victim arrived at the police station, the OC took her to his quarters, where no one else was present. The OC took her into a room and closed the windows. He threatened that if she would not obey her husband would be in grave danger. The victim attempted to resist but did not cry out, fearing for her life. She was then raped by the OC.

Abhaya reported the whole episode to her husband, who tried to contact the media from some numbers scrolled at the bottom of the screen on some channel programmes. He also contacted the APDR around 8.30pm, reporting that Abhaya had been raped by SI Mithun Banerjee, Officer-in charge, Bhadreswar Police Station. The young couple is seeking justice but is too afraid to move on their own to lodge a formal complaint. APDR then asked if they could visit the nearest government hospital so the young woman could be medically examined, but the young couple was reluctant, believing the hospital would refuse to examine her; they were even more fearful of the police intimidation and threats that would follow. Finally, the APDR convinced them to visit the Chandernagore Sub-Divisional Hospital, assuring them of the Association's intervention should the hospital authorities refuse her case.

The couple arrived at the hospital around 8.45pm and requested for a medical check-up concerning their complaint of rape. Their fears appeared well-founded: not only were they refused by the Emergency Medical Officer on duty, but a well-built person keep frequenting the emergency room and making calls with a cell phone. This well-built person was later revealed by the hospital staff to be police personnel in plainclothes.

A team from APDR arrived at the hospital shortly after to reason with the Medical Officer. Finally, an outdoor patient ticket was arranged for after the hospital received an official request from the APDR for a medical examination of Abhaya. The Superintendent of the hospital also issued instructions for papers to be readied for Abhaya's admission. The APDR also contacted the Chairperson of the West Bengal Women's commission (WBWC) and also met the Superintendent of the hospital in his quarters. The Chairperson of WBWC also called the Superintendent of Police, Hooghly. While the APDR was discussing the matter with the Superintendent of the hospital, he received a call and informed APDR that a team of police officers had been dispatched to the hospital.

A large contingent of police arrived at the hospital, first led by the SDPO, Chandernagore, followed by Inspector General of Police, IPS Amitabha Verma, ASP. The victims were interrogated for an hour and the woman's handwritten complaint was received by the OC of Chandernagore Police Station. The complaint stated categorically that Abhaya had been raped by the OC SI Mithun Banerjee in his quarters at Bhadreswar Police Station. A formal requisition was made and a medical examination was conducted for the alleged rape. This was done around midnight. Interestintingly, the Emergency Medical Officer noted the allegation of rape "as per statements of the victim's husband" although the victim had herself recounted the events and persons involved in the presence of APDR witnesses. This discrepancy was pointed out of the Emergency Medical Officer, who admitted his mistake. The matter was also communicated to the Superintendents of the hospital at 11.30pm.

On the morning of 24 April, Abhaya was discharged from the Chandernagore hospital. The husband, along with their approximately 5-6 year old son, had been waiting for her the entire night. They were hungry, not having eaten the entire night. When the family emerged from the hospital, they were forcibly placed in a police vehicle and taken to Imambara Sadar Hospital. Sri Tanmoy Roy Chowdhury, IPS, SP Hooghly, Basab Talukdar, Special IG and other officers were present at the Imambara Sadar Hospital. The victim and her husband were put through yet another round of interrogation and Abhaya was subjected to a fresh medical examination. (Although Abhaya had made a formal complaint of rape against OC Bhadreswar Police Station, no action had been taken against the OC until the afternoon of 24 April, when the media reported the OC is "closed".)

After the second medical examination at around 2pm, the whole family was again put on a police vehicle and taken to the District Women Police Station situated at the Chinsurah Police Station premises. At 3pm they were once again brought back to the Imambarah Sadar Hospital. After another half an hour, the entire family was taken back to the District Women Police Station. APDR received news that at 5pm the family was back at Bhadreswar Police Station.

At 9pm, after the ordeal of being interrogated the entire day without sleep or rest, the family probably left the police station. Yet they were not to be found at home, and remained incommunicado for the next 36 hours.

According to media reports on 25 April, the family had been taken to CID Headquarters at Bhawani Bhawan. The accused OC of Bhadreswar Police Station had also been asked to report there. Another round of interrogation ensued. By the afternoon, the media quoted police sources as stating that the accused OC had been suspended. Only three hours later, again quoting police sources, the victim had "retracted" her allegation against the OC.

The APDR had these following observations:

1. The initial reluctance of both the hospital and police administration to entertain and act on the complaint of rape and subsequent activities aimed at suppressing the allegation and evidence of the rape deprives women of justice.

2. The husband and wife are in their twenties. Less than 40 hours passed between the time the husband returned home after 45 days in custody and the wife's rape, which means that tissue rupture is unlikely during rape. The only specific medical procedure which could prove the rape would be to immediately try to match the DNA collected through a vaginal swab from the victim with the semen of the accused. This should have been done during the first medical examination, which was only hours after the rape, as the DNA would gradually be lost over time. The victim's clothing was also not forensically examined for mechanical evidence of rape (missing buttons and ripped or stained cloth, for instance).

3. The police fed the media at regular intervals with misinformation designed to stymy public outrage against the gross human right violation by the OC of Bhadreswar Police Station that would hurt the reputation of the police authorities amongst the public.

4. It is not clear that the following crucial parts of investigation were conducted by the police:
(a) Determining why the OC of Bhadeswar Police Station was using an unregistered SIM card to communicate with Abhaya, if such communication was a necessary as part of his official duties.
(b) Examining Bhadreswar Police Station personnel to verify the victim's presence at the police station at the time of the alleged crime
(c) Cross-checking the description furnished by the victim of the room at the OC's quarters in which the alleged crime of rape was committed with how the room actually is
(d) Conducting a vaginal swab of the victim and matching the DNA found with the accused's semen
(e) A thorough forensic examination of the victim's clothes at the time of the alleged rape

5. Media reports suggest that the victim made a statement u/s 164 of CrPC retracting the allegation of rape. This was also repeated by the Hon'ble CM during her press statement on 27 April. The sub-section 6 of Section 164 states that the Magistrate recording a statement or confession under this section should forward it to the Magistrate by whom the case is to be inquired into or tried. The following questions need to be answered:
(a) How the police/media were made aware of the contents of Abhaya's Section 164 statement when the law specifically intended it for the judicial magistrate
(b) Whether the victim is provided with legal advice/opinion on the consequences before she was forced to make a statement u/s 164 CrPC
(c) Even in the event the victim retracts her statement, does the law permit for the accused to be absolved before the passing of the forensic report? Rape is a breach of criminal law, not civil law. The implication of accepting such means that charges should not be dropped merely on the retraction of an allegation. The retraction in itself cannot mean that the crime did not occur, or that the retraction was readily given.
(d) What the motives and implications were when the victim was taken before a magistrate to record another statement before the completion of the investigation based on her already registered complaint.

6. The police tried to break the resolve of the victim and subjected her and her husband to tremendous physical and mental stress from 4pm on 23 April to sometime in the afternoon of 25 April. This is an almost 48 hour stretch of continuous interrogation. The resulting emotional trauma caused the victim to develop an acute headache. She was so agonised she could not remember what she had said to the police earlier. The victim also has a thyroid disorder. Two days without the necessary medication inevitably disturbed the physical and mental well-being of the victim. Police were seeking this opportunity and took it by bringing Abhaya before a magistrate to record yet another, different statement that would serve only discredit her earlier account and compromise any future statements or evidence she might present.

The entire chain of events does not suggest in any way that the victim's allegation was untrue. On the contrary, it exposes the impunity with which police are able to continue to harass a victim of rape in order to induce her to retract her allegation. The duress which the victim, her husband and their young child have endured speaks out against the injustice of a system that almost seems to favour the oppressor-criminal by design.

The above case highlights several systemic problems in the administration of West Bengal, particularly in cases where individuals are simply not aware of certain laws or of their inherent rights as humans with dignity, reason and conscience:

1. The impunity and brutality with which self-interested and corrupt law enforcement personnel act and the sly deceitfulness and machinations that permit the escape of culpability through loopholes in "proper procedure" that can be easily exploited (Abhaya was technically called down to Bhadreswar Police Station by her husband, not by SI Mithun Banerjee);
2. The apathy, unresponsiveness and disturbing complicity of authorities legally and morally responsible for the interests of their citizens/constituents;
3. The absence of checks and balances within the police system as demonstrated by the failure of superiors higher up in the chain of command to properly investigate the wrongdoings of those under their charge
4. The unwillingness and/or inability of those in the medical profession to render aid to victims of physical abuse and carry out their duties (that reflects the general atmosphere of fear and distrust that characterises the relationship between the police and the larger community); and
5. The unwillingness and/or inability of central authorities to enforce proper procedures and practices amongst law enforcement agencies and to punish rogue actors that are slowly but surely destroying rule of law in India.

Without state intervention, international pressure and civil society, it is likely that Abhaya and her family will not see justice done. We hope to galvanise the Central Government through your written appeals to take appropriate steps towards seeing justice served and Abhaya released from the shadow of shame and fear. In the hope that the people of India may yet be vindicated and live in peace, we also appeal to the authorities to investigate the corruption of law enforcement agencies and personnel in Hooghly, West Bengal, and in other parts of the country and to begin to rectify the failure of mechanisms of checks and balances in the justice system that has so encouraged or permitted the flourishing of such impunity.

ADDITIONAL INFORMATION:

Section 160 of the 1973 Criminal Procedures Code (CrPC) expressly denies police officers the power to require the attendance of male persons under the age of fifteen years or women at any place other than the place in which such male person or woman resides. The OC of Bhadreswar was probably aware of this and so demanded instead that the victim's husband summon her to the police instead. Such manoeuvring made it possible for the OC to circumvent culpability for the victim's presence at the police station and discloses a distasteful deceitfulness that obscures deviation from duty.

If, as previously mentioned, Abhaya specifically pinpoints the perpetrator and genuine efforts are being made to put this case to ground, Section 327 of the CrPC states that the inquiry and trial should be held in camera to which the public generally may have access. Section 327 (3) further prohibits the printing or publishing of matters related to such proceedings except with the previous permission of the court. The media, however, obviously had access to Abhaya's statements. Under Section 164, clause (6) specifically states that such statements are to be forwarded only to the Magistrate by whom the case is to be inquired into or tried.

The Chandernagore hospital seemed unwilling to help the victim. The emergency medical officer (EMO) had a moral obligation to assist Abhaya and aid her quest for justice, something he would have been able to do by simply carrying out his duty: to examine her and professionally conclude whether or not she had been raped. Instead, the EMO displayed a distinct lack of professionalism, as well as cowardice. He first refused to conduct the medical examination, probably out of fear of what the police might do in response to such a "challenge" to their reputation. When APDR finally convinced him to conduct the medical examination, he chose to issue a very brief, non-descript medical report that measured only the most basic parameters, such as blood pressure and pulse, and noted that the patient was conscious and cooperative. While the EMO wrote down that the victim complained of pain in the left breast and in the abdomen, he did not conduct any physical examination to determine what injury had been done to her physical body to cause that pain. He also failed to tailor the examination to the specific crime at hand: rape. Instead, he wrote "no bleeding from vagina" without also stating that that was in no way proof that rape did not occur. To any person outside the medical fraternity, that statement may even seem to negate the victim's claims to having been violated, and such assumptions would have been completely wrong. Finally, the style and presentation of the Injury Report was problematic. The Injury Report issued (dated 23 April) was filled in with abbreviations and untidy (and in some places, illegible) handwriting that would be inadmissible in court. This means that even if the hospital issues a report on the medical examination done, the victim would be unable to use such as evidence. Such a medical report in the face or allegations of rape not only works against the victim but make a mockery of the medical proession.

Dubious legal proceedings characterised the entire episode since Abhaya's husband's unlawful detention. Abhaya's husband should not have been detained overnight without being charged or informed of the reason behind his arrest. SI Mithun Banerjee should not have forced Abhaya's husband to summon her to the police station; Section 160 of the Criminal Procedures Code, 1973 forbids this. SI Mithun Banerjee should have been detained and questioned the moment a complaint was made against him accusing him specifically for a specific crime. He should have been brought before a magistrate at the earliest moment possible. Instead, the other police personnel involved delayed his arrest, during which period he was free to continue "administering justice" in his capacity as OC of Bhadreswar Police Station. Indignation and outrage stem from the helplessness of the victim and her family so keenly felt under such impunity. A distinction should also have been drawn by India's judiciary between criminal and civil law. If SI Mithun Banerjee did rape Abhaya, he should be properly investigated and tried in an open court regardless of whether or not she retracted her statement. That retraction should not be deemed valid or voluntarily made.

The Universal Declaration of Human Rights, 1948, clearly shows what went wrong by stating what should have been protected. Abhaya and her family have a right to life, liberty and security of person (Article 3). Her husband's right to liberty was violated. He had served his 45 day sentence and yet had been unreasonably remanded at Bhadeswar Police Station on 22 to 23 April. Abhaya's right against cruel, inhuman or degrading treatment was also denied her when SI Mithun Banerjee had forceful sexual relations with her against her will (Article 5). Article 7 also entitles Abhaya to be afforded protection by law, yet the ones responsible for carrying out the law not only failed to protect but themselves perpetuated crimes of intimidation against the victim and her family. This is a fundamental glitch in the grand scheme of administering people in India, of which there are approximately 1.3 billion. Such a populous country desperately needs a judiciary that functions. Instead, the Indian legal system suffers systemic abuses by corrupt personnel who act violently and with impunity. Without first correcting this culture of senseless cruelty and putting in place mechanisms to prosecute and punish perpetrators, India's central government will be paralysed and India's progress impeded by its own clumsy, unwieldy bureaucracy.

The Indian state ratified the 1966 International Covenant on Civil and Political Rights (ICCPR) as well in 1979. This legal document requires the Indian state to take responsibility for helping Abhaya seek remedy (Article 2(3)). Article 10(1) states that "all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person", yet when Abhaya was detained at the Bhadreswar Police Station she was forcefully raped in the OC's quarters. Abhaya was grilled for a long period of time (almost 48 hours) and denied medical attention and medication during the interrogation sessions subsequent to registering a formal complaint. This would have affected her physical and mental well-being and broken her ability to maintain coherence in issuing or retracting statements. Fear for the safety of her family and for her own life also prevented Abhaya from speaking and acting freely according to the truth of the matter and out of a free conscience.

The ICCPR provides in Article 14(1) for the protection of minors. India also ratified the Convention on the Rights of the Child in 1992. Regardless of the "status, activities, expressed opinions, or beliefs of the child's parents", state parties bound themselves to "take all appropriate measures to protect the child". By detaining the young child along with Abhaya and her husband, public institutions, courts of law and administrative authorities do not hold "the best interests of the child" as a "primary consideration" (Article 2(2)). The state has also failed to ensure that the appropriate institutions, services, facilities responsible for the care of the child was adequate, or that competent supervision of the child could be arranged while the parents were being interrogated. Abhaya's child was instead a witness to his mother's emotional trauma and his father's humiliation, and would have had to suffer the same physical discomfort as his parents throughout their detention.

In the United Nations Generally Assembly Resolution 48/104 in December 1993, a Declaration on the Elimination of Violence against Women was passed in which rape was affirmed to constitute violence against women that impaired or nullified their enjoyment of fundamental rights and freedoms. It also recognised that such "physical, sexual or psychological harm or suffering" was a manifestation and perpetuation of historically unequal power relations between men and women. This captures the state of gender relations and the status of human rights in India today where women are protected neither by law nor by custom. The Declaration calls for states to not condone such acts of barbarity. Article 4(c) calls for states to pursue all appropriate means, without delay to "prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether whose acts are perpetrated by the state or by private persons". Article 4(d) urges states to develop penal, civil, labour and administrative sanctions in domestic legislation to punish and, equally important to the victims concerned, redress the wrongs caused to women who are subjected to violence. They should have access to mechanisms of justice…effect remedies. States should also inform women of their rights in seeking redress through such mechanisms, although, of course, such mechanisms have to exist in the first place. The tripartite that must motivate all law is sufficient if properly carried out: deterrence, retribution/recompense and rehabilitation (wherever possible). And nothing may be more conducive to the elimination of violence against women than provisions already contained in a state's constitution, existing legal framework, treaties and international conventions (Article 6).

SUGGESTED ACTION:
Please write to the authorities listed below demanding an investigation into and a speedy resolution of this case. The OC of Bhadreswar Police Station, SI Mithun Banerjee, should be properly investigated by a neutral agency and punished if found guilty. Abhaya and her husband also deserve the full protection of the state from further harassment or physical harm.

The AHRC is also writing a separate letter to the UN Special Rapporteurs on Violence against Women and Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Working Group on Enforced and Involuntary Disappearances calling for further intervention in this case.

To support this appeal, please click here:

SAMPLE LETTER:

Dear __________,

INDIA: Please investigate the rape of a young, married woman by SI Mithun Banerjee, the Officer-in Charge of Bhadreswar Police Station, in Hooghly district, West Bengal

Name of victim: Ms. Abhaya (not real name), living in West Bengal
Alleged perpetrator: SI Mithun Banerjee, Officer-in charge of Bhadreswar Police Station, Hooghly, West Bengal
Date of incident: 22 April 2012 to present
Place of incident: Bhadreswar Police Station, Hooghly, West Bengal

I am writing to express concern regarding the rape of a young, married woman in Bhadreswar Police Station by the Officer-in Charge there, SI Mithun Banerjee. The details of the case are as follows:

An inquiry undertaken by APDR reveals the following facts.

The husband of Abhaya (not her real name) had been arrested in a dacoity case and was released after 45 days in custody on 21 April 2012. That very night, two policemen from Bhadreswar Police Station chanced on him and asked him to present himself at the police station, which he did the following day (22 April). The OC demanded the husband summon his wife to the police station over the phone. The OC also noted down Abhaya's and her husband's cell phone number.

At around 3.30pm on 23 April, the OC requested that Abhaya immediately come down to the police station concerning her husband's case. She proceeded to the police station in an auto which the media reports to have been a police vehicle. When the victim arrived at the police station, the OC took her to his quarters, where no one else was present. The OC took her into a room and closed the windows. He threatened that if she would not obey her husband would be in grave danger. The victim attempted to resist but did not cry out, fearing for her life. She was then raped by the OC.

Abhaya reported the whole episode to her husband, who tried to contact the media from some numbers scrolled at the bottom of the screen on some channel programmes. He also contacted the APDR around 8.30pm, reporting that Abhaya had been raped by SI Mithun Banerjee, Officer-in charge, Bhadreswar Police Station. The young couple is seeking justice but is too afraid to move on their own to lodge a formal complaint. APDR then asked if they could visit the nearest government hospital so the young woman could be medically examined, but the young couple was reluctant, believing the hospital would refuse to examine her; they were even more fearful of the police intimidation and threats that would follow. Finally, the APDR convinced them to visit the Chandernagore Sub-Divisional Hospital, assuring them of the Association's intervention should the hospital authorities refuse her case.

The couple arrived at the hospital around 8.45pm and requested for a medical check-up concerning their complaint of rape. Their fears appeared well-founded: not only were they refused by the Emergency Medical Officer on duty, but a well-built person keep frequenting the emergency room and making calls with a cell phone. This well-built person was later revealed by the hospital staff to be police personnel in plainclothes.

A team from APDR arrived at the hospital shortly after to reason with the Medical Officer. Finally, an outdoor patient ticket was arranged for after the hospital received an official request from the APDR for a medical examination of Abhaya. The Superintendent of the hospital also issued instructions for papers to be readied for Abhaya's admission. The APDR also contacted the Chairperson of the West Bengal Women's commission (WBWC) and also met the Superintendent of the hospital in his quarters. The Chairperson of WBWC also called the Superintendent of Police, Hooghly. While the APDR was discussing the matter with the Superintendent of the hospital, he received a call and informed APDR that a team of police officers had been dispatched to the hospital.

A large contingent of police arrived at the hospital, first led by the SDPO, Chandernagore, followed by Inspector General of Police, IPS Amitabha Verma, ASP. The victims were interrogated for an hour and the woman's handwritten complaint was received by the OC of Chandernagore Police Station. The complaint stated categorically that Abhaya had been raped by the OC SI Mithun Banerjee in his quarters at Bhadreswar Police Station. A formal requisition was made and a medical examination was conducted for the alleged rape. This was done around midnight. Interestintingly, the Emergency Medical Officer noted the allegation of rape "as per statements of the victim's husband" although the victim had herself recounted the events and persons involved in the presence of APDR witnesses. This discrepancy was pointed out of the Emergency Medical Officer, who admitted his mistake. The matter was also communicated to the Superintendents of the hospital at 11.30pm.

On the morning of 24 April, Abhaya was discharged from the Chandernagore hospital. The husband, along with their approximately 5-6 year old son, had been waiting for her the entire night. They were hungry, not having eaten the entire night. When the family emerged from the hospital, they were forcibly placed in a police vehicle and taken to Imambara Sadar Hospital. Sri Tanmoy Roy Chowdhury, IPS, SP Hooghly, Basab Talukdar, Special IG and other officers were present at the Imambara Sadar Hospital. The victim and her husband were put through yet another round of interrogation and Abhaya was subjected to a fresh medical examination. (Although Abhaya had made a formal complaint of rape against OC Bhadreswar Police Station, no action had been taken against the OC until the afternoon of 24 April, when the media reported the OC is "closed".)

After the second medical examination at around 2pm, the whole family was again put on a police vehicle and taken to the District Women Police Station situated at the Chinsurah Police Station premises. At 3pm they were once again brought back to the Imambarah Sadar Hospital. After another half an hour, the entire family was taken back to the District Women Police Station. APDR received news that at 5pm the family was back at Bhadreswar Police Station.

At 9pm, after the ordeal of being interrogated the entire day without sleep or rest, the family probably left the police station. Yet they were not to be found at home, and remained incommunicado for the next 36 hours.

According to media reports on 25 April, the family had been taken to CID Headquarters at Bhawani Bhawan. The accused OC of Bhadreswar Police Station had also been asked to report there. Another round of interrogation ensued. By the afternoon, the media quoted police sources as stating that the accused OC had been suspended. Only three hours later, again quoting police sources, the victim had "retracted" her allegation against the OC.

The APDR had these following observations:

1. The initial reluctance of both the hospital and police administration to entertain and act on the complaint of rape and subsequent activities aimed at suppressing the allegation and evidence of the rape deprives women of justice.

2. The husband and wife are in their twenties. Less than 40 hours passed between the time the husband returned home after 45 days in custody and the wife's rape, which means that tissue rupture is unlikely during rape. The only specific medical procedure which could prove the rape would be to immediately try to match the DNA collected through a vaginal swab from the victim with the semen of the accused. This should have been done during the first medical examination, which was only hours after the rape, as the DNA would gradually be lost over time. The victim's clothing was also not forensically examined for mechanical evidence of rape (missing buttons and ripped or stained cloth, for instance).

3. The police fed the media at regular intervals with misinformation designed to stymy public outrage against the gross human right violation by the OC of Bhadreswar Police Station that would hurt the reputation of the police authorities amongst the public.

4. It is not clear that the following crucial parts of investigation were conducted by the police:
(a) Determining why the OC of Bhadeswar Police Station was using an unregistered SIM card to communicate with Abhaya, if such communication was a necessary as part of his official duties.
(b) Examining Bhadreswar Police Station personnel to verify the victim's presence at the police station at the time of the alleged crime
(c) Cross-checking the description furnished by the victim of the room at the OC's quarters in which the alleged crime of rape was committed with how the room actually is
(d) Conducting a vaginal swab of the victim and matching the DNA found with the accused's semen
(e) A thorough forensic examination of the victim's clothes at the time of the alleged rape

5. Media reports suggest that the victim made a statement u/s 164 of CrPC retracting the allegation of rape. This was also repeated by the Hon'ble CM during her press statement on 27 April. The sub-section 6 of Section 164 states that the Magistrate recording a statement or confession under this section should forward it to the Magistrate by whom the case is to be inquired into or tried. The following questions need to be answered:
(a) How the police/media were made aware of the contents of Abhaya's Section 164 statement when the law specifically intended it for the judicial magistrate
(b) Whether the victim is provided with legal advice/opinion on the consequences before she was forced to make a statement u/s 164 CrPC
(c) Even in the event the victim retracts her statement, does the law permit for the accused to be absolved before the passing of the forensic report? Rape is a breach of criminal law, not civil law. The implication of accepting such means that charges should not be dropped merely on the retraction of an allegation. The retraction in itself cannot mean that the crime did not occur, or that the retraction was readily given.
(d) What the motives and implications were when the victim was taken before a magistrate to record another statement before the completion of the investigation based on her already registered complaint.

6. The police tried to break the resolve of the victim and subjected her and her husband to tremendous physical and mental stress from 4pm on 23 April to sometime in the afternoon of 25 April. This is an almost 48 hour stretch of continuous interrogation. The resulting emotional trauma caused the victim to develop an acute headache. She was so agonised she could not remember what she had said to the police earlier. The victim also has a thyroid disorder. Two days without the necessary medication inevitably disturbed the physical and mental well-being of the victim. Police were seeking this opportunity and took it by bringing Abhaya before a magistrate to record yet another, different statement that would serve only discredit her earlier account and compromise any future statements or evidence she might present.

The entire chain of events does not suggest in any way that the victim's allegation was untrue. On the contrary, it exposes the impunity with which police are able to continue to harass a victim of rape in order to induce her to retract her allegation. The duress which the victim, her husband and their young child have endured speaks out against the injustice of a system that almost seems to favour the oppressor-criminal by design.

The above case highlights several systemic problems in the administration of West Bengal, particularly in cases where individuals are simply not aware of certain laws or of their inherent rights as humans with dignity, reason and conscience:

1. The impunity and brutality with which self-interested and corrupt law enforcement personnel act and the sly deceitfulness and machinations that permit the escape of culpability through loopholes in "proper procedure" that can be easily exploited (Abhaya was technically called down to Bhadreswar Police Station by her husband, not by SI Mithun Banerjee);
2. The apathy, unresponsiveness and disturbing complicity of authorities legally and morally responsible for the interests of their citizens/constituents;
3. The absence of checks and balances within the police system as demonstrated by the failure of superiors higher up in the chain of command to properly investigate the wrongdoings of those under their charge
4. The unwillingness and/or inability of those in the medical profession to render aid to victims of physical abuse and carry out their duties (that reflects the general atmosphere of fear and distrust that characterises the relationship between the police and the larger community); and
5. The unwillingness and/or inability of central authorities to enforce proper procedures and practices amongst law enforcement agencies and to punish rogue actors that are slowly but surely destroying rule of law in India.

Section 160 of the 1973 Criminal Procedures Code (CrPC) expressly denies police officers the power to require the attendance of male persons under the age of fifteen years or women at any place other than the place in which such male person or woman resides. The OC of Bhadreswar was probably aware of this and so demanded instead that the victim's husband summon her to the police instead. Such manoeuvring made it possible for the OC to circumvent culpability for the victim's presence at the police station and discloses a distasteful deceitfulness that obscures deviation from duty.

If, as previously mentioned, Abhaya specifically pinpoints the perpetrator and genuine efforts are being made to put this case to ground, Section 327 of the CrPC states that the inquiry and trial should be held in camera to which the public generally may have access. Section 327 (3) further prohibits the printing or publishing of matters related to such proceedings except with the previous permission of the court. The media, however, obviously had access to Abhaya's statements. Under Section 164, clause (6) specifically states that such statements are to be forwarded only to the Magistrate by whom the case is to be inquired into or tried.

The Chandernagore hospital seemed unwilling to help the victim. The emergency medical officer (EMO) had a moral obligation to assist Abhaya and aid her quest for justice, something he would have been able to do by simply carrying out his duty: to examine her and professionally conclude whether or not she had been raped. Instead, the EMO displayed a distinct lack of professionalism, as well as cowardice. He first refused to conduct the medical examination, probably out of fear of what the police might do in response to such a "challenge" to their reputation. When APDR finally convinced him to conduct the medical examination, he chose to issue a very brief, non-descript medical report that measured only the most basic parameters, such as blood pressure and pulse, and noted that the patient was conscious and cooperative. While the EMO wrote down that the victim complained of pain in the left breast and in the abdomen, he did not conduct any physical examination to determine what injury had been done to her physical body to cause that pain. He also failed to tailor the examination to the specific crime at hand: rape. Instead, he wrote "no bleeding from vagina" without also stating that that was in no way proof that rape did not occur. To any person outside the medical fraternity, that statement may even seem to negate the victim's claims to having been violated, and such assumptions would have been completely wrong. Finally, the style and presentation of the Injury Report was problematic. The Injury Report issued (dated 23 April) was filled in with abbreviations and untidy (and in some places, illegible) handwriting that would be inadmissible in court. This means that even if the hospital issues a report on the medical examination done, the victim would be unable to use such as evidence. Such a medical report in the face or allegations of rape not only works against the victim but make a mockery of the medical profession.

Dubious legal proceedings characterised the entire episode since Abhaya's husband's unlawful detention. Abhaya's husband should not have been detained overnight without being charged or informed of the reason behind his arrest. SI Mithun Banerjee should not have forced Abhaya's husband to summon her to the police station; Section 160 of the Criminal Procedures Code, 1973 forbids this. SI Mithun Banerjee should have been detained and questioned the moment a complaint was made against him accusing him specifically for a specific crime. He should have been brought before a magistrate at the earliest moment possible. Instead, the other police personnel involved delayed his arrest, during which period he was free to continue "administering justice" in his capacity as OC of Bhadreswar Police Station. Indignation and outrage stem from the helplessness of the victim and her family so keenly felt under such impunity. A distinction should also have been drawn by India's judiciary between criminal and civil law. If SI Mithun Banerjee did rape Abhaya, he should be properly investigated and tried in an open court regardless of whether or not she retracted her statement. That retraction should not be deemed valid or voluntarily made.

The Universal Declaration of Human Rights, 1948, clearly shows what went wrong by stating what should have been protected. Abhaya and her family have a right to life, liberty and security of person (Article 3). Her husband's right to liberty was violated. He had served his 45 day sentence and yet had been unreasonably remanded at Bhadeswar Police Station on 22 to 23 April. Abhaya's right against cruel, inhuman or degrading treatment was also denied her when SI Mithun Banerjee had forceful sexual relations with her against her will (Article 5). Article 7 also entitles Abhaya to be afforded protection by law, yet the ones responsible for carrying out the law not only failed to protect but themselves perpetuated crimes of intimidation against the victim and her family. This is a fundamental glitch in the grand scheme of administering people in India, of which there are approximately 1.3 billion. Such a populous country desperately needs a judiciary that functions. Instead, the Indian legal system suffers systemic abuses by corrupt personnel who act violently and with impunity. Without first correcting this culture of senseless cruelty and putting in place mechanisms to prosecute and punish perpetrators, India's central government will be paralysed and India's progress impeded by its own clumsy, unwieldy bureaucracy.

The Indian state ratified the 1966 International Covenant on Civil and Political Rights (ICCPR) as well in 1979. This legal document requires the Indian state to take responsibility for helping Abhaya seek remedy (Article 2(3)). Article 10(1) states that "all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person", yet when Abhaya was detained at the Bhadreswar Police Station she was forcefully raped in the OC's quarters. Abhaya was grilled for a long period of time (almost 48 hours) and denied medical attention and medication during the interrogation sessions subsequent to registering a formal complaint. This would have affected her physical and mental well-being and broken her ability to maintain coherence in issuing or retracting statements. Fear for the safety of her family and for her own life also prevented Abhaya from speaking and acting freely according to the truth of the matter and out of a free conscience.

The ICCPR provides in Article 14(1) for the protection of minors. India also ratified the Convention on the Rights of the Child in 1992. Regardless of the "status, activities, expressed opinions, or beliefs of the child's parents", state parties bound themselves to "take all appropriate measures to protect the child". By detaining the young child along with Abhaya and her husband, public institutions, courts of law and administrative authorities do not hold "the best interests of the child" as a "primary consideration" (Article 2(2)). The state has also failed to ensure that the appropriate institutions, services, facilities responsible for the care of the child was adequate, or that competent supervision of the child could be arranged while the parents were being interrogated. Abhaya's child was instead a witness to his mother's emotional trauma and his father's humiliation, and would have had to suffer the same physical discomfort as his parents throughout their detention.

In the United Nations Generally Assembly Resolution 48/104 in December 1993, a Declaration on the Elimination of Violence against Women was passed in which rape was affirmed to constitute violence against women that impaired or nullified their enjoyment of fundamental rights and freedoms. It also recognised that such "physical, sexual or psychological harm or suffering" was a manifestation and perpetuation of historically unequal power relations between men and women. This captures the state of gender relations and the status of human rights in India today where women are protected neither by law nor by custom. The Declaration calls for states to not condone such acts of barbarity. Article 4(c) calls for states to pursue all appropriate means, without delay to "prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether whose acts are perpetrated by the state or by private persons". Article 4(d) urges states to develop penal, civil, labour and administrative sanctions in domestic legislation to punish and, equally important to the victims concerned, redress the wrongs caused to women who are subjected to violence. They should have access to mechanisms of justice…effect remedies. States should also inform women of their rights in seeking redress through such mechanisms, although, of course, such mechanisms have to exist in the first place. The tripartite that must motivate all law is sufficient if properly carried out: deterrence, retribution/recompense and rehabilitation (wherever possible). And nothing may be more conducive to the elimination of violence against women than provisions already contained in a state's constitution, existing legal framework, treaties and international conventions (Article 6).

Without state intervention, international pressure and civil society, it is likely that Abhaya and her family will not see justice done. I appeal to you to take appropriate steps towards seeing justice served and Abhaya released from the shadow of shame and fear. In the hope that the people of India may yet be vindicated and live in peace, I also appeal to the authorities to investigate the corruption of law enforcement agencies and personnel in Hooghly, West Bengal, and in other parts of the country and to begin to rectify the failure of mechanisms of checks and balances in the justice system that has so encouraged or permitted the flourishing of such impunity.

I demand that:

1. The first report lodged by Abhaya be properly acknowledged;
2. The authorities concerned put together a report summarising the action taken thus far to facilitate the resolution of the case at hand;
3. The allegation is also investigated by an agency not under the influence of state police alongside official investigations. The West Bengal Women's Commission may initiate this process;
4. The accused must be dealt with according to the provisions of the law and that his position as OC of Bhadreswar Police Station not have any bearing on the punishment meted out in terms of lessening it;
5. The accused is additionally subjected to an internal review as well and bear the consequences of his misconduct in office;
6. The accused not be given the option of bail;
7. The central authorities outline steps they intend to take to review the judicial system at the district level and lower to eliminate or reduce loopholes that might be exploited by those in authority;
8. The central authorities recall and act upon their commitment to punish violence against women and develop national programmes to develop awareness among women of their legal, constitutional and fundamental human rights; and
9. The the victim is awarded compensation by the courts for the physical and mental trauma endured during the rape and the torturous process of interrogation that followed her police report.

Please act today to bring justice to Abhaya and her family and to protect women all over India.

Yours sincerely,

------------------------------------------
PLEASE SEND YOUR LETTERS TO:

1. Director General & Inspector General of Police
Government of West Bengal
Writers Buildings, Kolkata-1
West Bengal
INDIA
Fax: +91 33 2214 4498 / 2214 5486
Email: dgp_westbengal@gmail.com

2. Chief Secretary
Government of West Bengal
Writers' Building, Kolkata, West Bengal
INDIA
Fax: + 91 33 2214 4328
Email: chiefsec@wb.gov.in

3. Additional Chief Secretary (Home)
Government of West Bengal
Writers' Building, Kolkata, West Bengal
INDIA
Email: sechome@wb.gov.in

4. Ms. Mamata Banerjee
Chief Minister
Government of West Bengal
Writers' Building, Kolkata, West Bengal
INDIA
Fax: + 91 33 22144328
Email: cm_wb@nic.in

5. Chairperson
National Human Rights Commission
Faridkot House, Copernicus Marg
New Delhi 110001
INDIA
Fax: + 91 11 2338 4863
E-mail: chairnhrc@nic.in

6. Superintendent of Police
Chinsurah, Hooghly 712101
West Bengal
INDIA
Tel/Fax: +91 33 2680 4739
E-mail: sphooghly@hooghlypolice.org


Thank you

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-083-2012
Countries :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.