UPDATE (India): Urgent call to appoint a special public prosecutor to ensure fair trial

Dear friends,

The Asian Human Rights Commission (AHRC) has received additional information concerning the case of rape that was reported earlier by the AHRC on 31 March 2008. The AHRC is informed through Navsarjan that the case is currently taken up for trial. The AHRC is also informed that the victim suspects unfair practices during the trial and that the victim has been demanding for the appointment of a Special Public Prosecutor to deal with her case. So far the victim’s demand is not met with by the state government. The accused in the case are teachers of a Primary Teacher’s Training College (PTC) and the victim is the student of the same institution.

UPDATED INFORMATION:

On 6 May 2008, the trial in the rape case against six college teachers began at the fast track court in Patan district, Gujatat. The victim in the case is a Dalit female student of the same college. For further information regarding the case please see AHRC-UAC-063-2008.

The victim in the case was repeatedly raped by six teachers between September 2007 and January 2008. The victim came out seeking justice and filed a complaint at the Patan Police Station on 4 February 2008 despite her trauma.

From the beginning, the victim had to encounter numerous huddles to get her case registered and investigated independently. As the AHRC pointed out in our earlier Urgent Appeal, the police failed to investigate the incident independently and to impose appropriate criminal charges against the perpetrators in accordance with the law. In addition, the victim was not provided with appropriate medical treatment or trauma counseling.

The victim, despite the unfavorable conditions, continues to fight seeking justice. On 21 April 2008, the victim sent a letter to the state Home Minister demanding the appointment of a Special Public Prosecutor to be appointed to prosecute her case. According to the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989, a case charge sheeted under this Act has to be tried in a Special Court constituted under the Act. The Prosecution has to be carried out by a Special Prosecutor appointed under the same Act.

BACKGROUND INFORMATION:

The practice in India however is that instead of appointing a separate ‘special court’ and a ‘special prosecutor’ to try cases registered under the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989, a regular court will be designated as a special court, where the judge and the prosecutor while engaged in trying cases registered under the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 will be referred to as a Special Judge and a Special Prosecutor and the court considered as a special court. In short, it is only the designation and the titles that change, but the persons and the premises remain the same.

The legislative wisdom, reasoning and will of stipulating a special court, judge and a prosecutor, thus in reality is undermined by the state. The reason for stipulating special procedures for trials charged under the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 is that the crime committed against a member of the Scheduled Caste or that of the Scheduled Tribe require special attention than compare to an ordinary criminal case due to very nature of vulnerability and the gravity of the offense committed under this law.

The Scheduled Castes and the Scheduled Tribes in India require special attention merely because of the fact that the members of these two communities are discriminated in India due to prejudicial and inhuman caste practices in Indian society. The legislature in its wisdom, thus rightfully concluded that when a person is accused of an offense punishable under this law, the trial should take place in an atmosphere where the victims of the atrocities have a congenial environment where they could depose before a judge who is sensitive towards the issue of caste based discrimination and that the trial is led by a prosecutor who equally understands the gravity of the crime or the atrocities committed against the member of a scheduled caste or tribe. Unfortunately, as it is evident from this case, the state fails to discharge this vital responsibility and thus entrust these cases to regular judges and prosecutors who deal with these cases as ‘just another case’.

In a caste-ridden Indian society, it is common practice for the upper caste communities to use all possible pressure upon the Dalit victims in a case to withdraw from a case against the member of the upper caste. This is because the members of the upper caste fear that if one among them is punished for atrocities committed against the member of a Scheduled Caste or Scheduled tribe, it will set in motion a social movement against the caste practices in India, which the upper caste believes could ‘topple the apple cart’ that thus far has been exploiting the members of the lower caste for economic and other benefits.

In the rural villages in India where bonded labour and other slave like practices continue, strong actions against the members of the upper caste on complaints lodged by the members of the Scheduled Caste or the Scheduled Tribe would result in a congenial atmosphere where the Scheduled Caste or Tribe could challenge centuries old evil practices. To continue exploitation and to keep the morale down of the Scheduled Caste and Tribe, the upper caste even as of today practice untouchability in India. A regular judge or a prosecutor might not be in a position to understand these deeply entrenched practices and appreciate the statements given by a Dalit victim in a case against the member of a higher caste.

In addition, the case at hand is that of rape, committed by teachers upon a Dalit student. In the absence of any witness protection law in India, it is fairly easy for an accused to prevail upon a victim to refrain the victim from deposing in court. In a male dominated Indian society, it is equally easy for a male accused to prevail upon a female victim, particularly in a case of rape where adverse social taboos against a female exists. Often in Indian society, a case of rape might be easily justified and criminals sympathised as being victimised by an evil females particularly if the victim is a Dalit.

Given the fact that the investigation in this case itself has suffered serious dents due to the absence of independency the chances are that in the absence of a sensitive approach, the accused in the case will be acquitted. It is in order to prevent this predictable miscarriage of justice, Navsarjan, the local human rights organisation assisting the victim as well as the victim herself, is demanding for the appointment of a Special Prosecutor to try this case.

Irrespective of the will of the state, the victim in this case could also request for an ‘in-camera’ proceedings. The trial court after hearing both parties, the accused as well as the victim, could allow in-camera proceedings. In a case of rape, it is imperative that the court should in fact ask the victim whether the victim prefer in-camera proceedings than waiting for the victim to make such a request.

Even in absence of the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989, there are possibilities through which a state could appoint a Special Prosecutor to try a case. Even though there is no express legal provision for such a general practice, the state, on application by a concerned party may appoint a Special Prosecutor in any criminal case with the concurrence of the court. However, such a decision is an executive decision of the state, than that of the court.

The trial in this case has already commenced. However, if the state so wish, it could apply to the court for a temporary stay of proceedings and appoint a Special Prosecutor exclusively for this case. But that requires administrative will of the state which is hard to find in a caste dominated society, particularly that of Gujarat in a case concerning the members of the upper caste Hindus.

SUGGESTED ACTION:
Please write to the authorities below to ensure a fair trial. Please make a note that the victim has demanded for the appointment of a special prosecutor in this case, which is in fact a statutory requirement than a personal demand.

The AHRC has also written a separate letter to the UN Special Rapporteur on Violence against Women calling for an intervention in this case for fair trial on behalf of the victim.

To support this case, please click here: SEND APPEAL LETTER