As we note the unprecedented, if not always productive, attention being drawn to widespread sexual violence in India, we need to remember that in the shadows of media attention, legal activists routinely wage long, arduous and painful struggles in courts. One such set of activists located at MAJLIS LEGAL CENTRE, Mumbai, recently secured the conviction in Sessions Court, of a 60 year old man for the sexual assault of a toddler. Here is the inspiring (and infuriating!) account of this battle in the words of Majlis. Some of us have been making an argument for CCTV’s in police stations, to monitor the behaviour of the police towards complainants, especially of sexual violence. This case only reinforces our belief that the surveillance by citizens, of the coercive apparatus of the state is imperative.
It’s been two long years of trials and tribulations as we journeyed a difficult path with a very young rape survivor. In fact, this case started off the ‘Socio-Legal Support to Survivors of Sexual Assault’ Programme of Majlis.
The incident had taken place within the premises of Kalina Education Society in Kalina in February, 2011. When the mother noticed an injury on her child and rushed to the police station, the police, instead of registering a case, recording her complaint and sending the child for medical examination, preferred to call the school principal to the police station. The Principal, in the presence of the lady Police Sub-Inspector, threatened the mother that if she filed a complaint, her child would be thrown out of the school. This led to valuable medical evidence being lost. The next day the mother was asked to bring to the child to school by the lady Sub-Inspector, for “investigations”. While the mother was asked to wait outside the school compound, the child was interrogated alone by the principal and teachers in the presence of the police, and was threatened. The case was recorded only when the mother, on the third day, at her own initiative, took the child to a private doctor, who after noticing the injury referred the child to the Sion Hospital (which is a Government Hospital).
The doctors who examined the child called the Vakola Police Station and directed them to record a complaint of rape. The media reports which appeared after the case was filed, made extremely derogatory statements against the mother of the young girl, insinuating that it was a false complaint that had been filed to blackmail the school authorities into paying her a huge settlement, or that the mother was insane and subject to delusions.
We contacted the family when we read the news reports, as the school is located literally in our backyard. Hesitantly the mother came to us. When we met her the first time, she was crying for justice. She wanted someone to take up her case as she did not trust the criminal justice system after her experience with the police. We are a team of lawyers representing women in cases of domestic violence. While courts are not alien to us, the criminal trials would be a whole new experience compared to matrimonial litigation. However, since there was no other NGO doing this kind of work, our enthusiastic team of young women lawyers decided to embark on this un-mapped terrain and with this, hesitantly, started our new programme of support to survivors of sexual assault, under the able guidance of Advocate Flavia Agnes.
Today when there is a new churning in the country and a need for support to survivors is being articulated, we are already two years into this programme and have learnt valuable lessons.
In this case, State of Maharashtra (Vakola Police Station) versus Tillam Singh Sessions Case No. 452/2011 (Fort), the accused, the school watchman, was represented by none other than the reputed senior criminal lawyer Mr. Majeed Memon, while the girl was represented by a special public prosecutor, who did not have much experience in dealing with rape cases.
Through over 50 court dates and individual sessions, at every step our role was to support the child and her mother through this ordeal, by providing socio-legal counseling, helping the illiterate mother to understand the legal processes and to familiarize her with court structures and legal documents. Our young advocate, Ms. Persis Sidhva followed this matter with utmost dedication, providing moral support to child and the mother so that they would not be daunted by the system.
Simultaneously, our role was to ensure that protocols and guidelines for investigating a child witness were adhered to. We had to persist through continuous resistance. When we pointed out the Sakshi guidelines, and insisted there be a screen between the accused and the witness, the judge who was entrusted with the matter at that time, as well as the Public Prosecutor, had never heard of these Supreme Court guidelines. The judge commented, “all this can be followed only in the Hon’ble Supreme Court and not in our trial courts”.
Finally at the fag end of the case when it was time for the four year old child to depose in court, we were fortunate that the matter came before a sensitive judge, P.G. Ganediwala, presiding over Sessions Court Room No.41 (Fort Area) who ensured that the questions for cross examinations were given to her in writing and were put to the child survivor only by her. At this point the defense lawyer submitted a list of 100 questions which were disallowed and only the relevant ones allowed. Our advocates were allowed to be present during the in-camera proceedings so that the child is not unnerved or intimidated.
The child identified the accused in court during her examination and was able to answer questions in cross examination cogently and logically and the evidence of the child could not be shaken in cross examination.
We were worried because the police investigations were shoddy and there were contradictions even medical examinations. Initially the OPD had written on the case papers that there were no injuries, but later after a detailed investigation the gynaecologist reported injuries to the hymen. During cross examination, the private doctor turned hostile while the doctor at the public hospital stood firm even regarding the contradictory medical reports. The Judge was sharply critical about the shoddy investigation carried out by the police.
The response of the public prosecutor was extremely demoralising as he felt that this case was hopeless. We submitted written arguments and case law and prevailed upon him to submit oral arguments which he did for about 20-30 minutes. The accused lawyer Mr. Majeed Memon argued for over three days, while we waited patiently, biting our nails.
On Monday, 25th February, 2013 the honble Session Court delivered its verdict. It convicted the watchman for sexually assaulting the minor child within the school premises, under section 377 of IPC and sentenced him to seven years of imprisonment and a fine of Rs.25,000. The State will also provide Rs. 25,000 as compensation.
We consider this a great victory for our survivor support programme as it gives us confidence that we are progressing on the right track.