The Unnao Story: A Legal Viewpoint

Reading time: 7-8 minutes.

Strongly criticizing the handling of the Unnao rape case and expressing displeasure on the road accident which took place last Sunday (28/07/2019) that left the 19-year old victim and her lawyer critically injured and her two aunts dead, the Supreme Court on Thursday (01/08/2019) transferred the cases related to the matter from Uttar Pradesh to Delhi. The order also provided for a compensation of Rs. 25 lakhs from the Uttar Pradesh Government and CRPF security cover for her, her family and her lawyer.

The Supreme Court via its order appointed Dharmesh Sharma, District Judge, Tiz Hazari Courts, Delhi to conduct the trial in the four cases related to Unnao rape. The bench led by the Chief Justice of India, Ranjan Gogoi transferred the cases from the CBI Court, Lucknow to Delhi by initiating suo moto proceedings based on the letter sent by the family of the victim seeking protection from intimation by accused. The mother of the victim had also approached the Apex Court last April seeking transfer of trial outside Uttar Pradesh giving the same reason, i.e., intimation by accused.

First case was for the rape allegedly committed by BJP MLA Kuldeep Singh Sengar. Second case was for the offence of gang rape allegedly committed by the legislator’s supporters and friends a week after the crime committed by him. Third case has been registered against the father of the victim under the Arms Act. Her father died while in the custody and the fourth case has been registered with respect to this by her mother. All of these cases have to be dealt within 45 days, the Supreme Court directed.

Keeping in mind that the recent road accident occurred in Uttar Pradesh and that it would be difficult to prepare a report if the case is transferred to Delhi, the Supreme Court has allowed CBI to conduct investigation with respect to the truck collision and submit the report of the same within 14 days.

What is the background of this case?

The Unnao rape case involves the gangrape of a 17-year-old girl allegedly by the BJP MLA Kuldeep Singh Sengar, his brother Atul Singh and their accomplices on 4 June 2017. A case was registered under Section 363 (punishment for kidnapping) and Section 366 (kidnapping, abducting or inducing woman to compel her marriage, etc) of the Indian Penal Code, 1860. However, the victim was allegedly not allowed to name the BJP MLA as the police refused to mention him by name.

Two chargesheets have been filed in the case so far. First one names the BJP MLA, Kuldeep Singh Sengar as the accused in the allege rape case of the 17 year old. The second one names him, his brother, three policemen and five other people for allegedly framing the Unnao survivor’s father.

The trial in the Unnao rape case did not move an inch even when there was invocation of POCSO and the main accused in the case was a legislator. The Protection of Children from Sexual Offences Act states that all the cases should ideally be dealt with within a year from the date of taking the cognizance. Also, the Supreme Court in an order in December 2017 said that all cases against MPs and MLAs must be decided within one year and it also laid down the establishment of special courts for the said purpose.

What exactly is POCSO?

POCSO or The Protection of Children from Sexual Offences Act (POCSO Act) 2012 was established to protect the children against offences like sexual abuse, sexual harassment and pornography. It was formed to provide a child-friendly system for trial underneath which the perpetrators could be punished.

The Act defines a child as any person below eighteen years of age. It also makes provisions for avoiding the re-victimisation of the child at the hands of the judicial system. Protection of Children from Sexual Offences Act, 2012 received the President’s assent on June 19, 2012. It was notified in the Gazette of India on June 20, in the same year.

The Act defines different forms of sexual abuse which includes penetrative and non-penetrative assault. It also involves sexual harassment, pornography, etc. Under certain specific circumstances POCSO states a sexual assault is to be considered “aggravated if the abused child is mentally ill or when the abuse is committed by a member of the armed forces or security forces or a public servant or a person in a position of trust or authority of the child, like a family member, police officer, teacher, or doctor or a person-management or staff of a hospital — whether Government or private.”

How is POCSO different from Section 375 and 376 (provisions related to rape) of the Indian Penal Code, 1860:

1. Burden of Proof on the Accused: Section 29 of the Act provides that where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, unless the contrary is proved.

2. POCSO Act is gender-neutral law, wherein the law takes cognizance of sexual crimes committed against both girls and boys under the age of 18 years. IPC presumed that only females are the victim of sexual crimes.

3. POCSO Act ensures punishment for all perpetrators irrespective of age and gender. Unlike IPC which only punishes a male for an offence of rape, POCSO Act is gender neutral in nature.

4. Calibration of Offences: POCSO Act addresses a wide range of sexual offences which include anything from complete and partial penetration; non-penetrative sexual assault; stalking of a child; showing children pornography; using the child for pornography; exhibitionism etc. The law protects children from both physical and or non-physical contact forms of abuse unlike the Indian Penal Code.

5. Severer Punishment when Protectors are Perpetrators: POCSO Act provides for more severe punishment, when the sexual offence is committed by a person in a position of trust or authority such as police officer or a member of security forces or public servant, etc. (Sections 5 and 9).

What is the role of Supreme Court in this case?

A suo motu cognizance is a Latin term which means an action taken by a government agency, court or other central authority on their own apprehension. A court takes a suo motu cognizance of a legal matter when it receives information about violation of rights or breach of duty through media or through a third party’s notification by letter, telegram, or other means of communication.

It is seen that the Supreme Court sou moto initiated proceeding based on the letter written by the survivor’s family. Such cases may occur when the victim does not have the necessary resources to commence litigation or his freedom to move court has been suppressed or encroached upon. The court can itself take cognizance of the matter and proceed suo motu or cases can commence on the petition of any public-spirited individual.

The Supreme Court also took suo motu cognizance and asked the Central Government to work with companies like Google, Yahoo, Facebook and WhatsApp to suggest list of keywords to block explicit videos that depict rape, gang rape and child pornography. An NGO named Prajwala wrote a letter to the Chief Justice of India in 2015 and sent a pen drive containing two videos. The letter asked the court to take appropriate measures against the culprits who were committing gang rape in a video. The Supreme Court converted the letter into a PIL.

The Indian courts have taken suo motu cognizance in the following instances:

1. Contempt of court:  Contempt of court means disobedience towards the court and ignorance to rules and regulations, code of conduct and ethics followed in a court. The court generally initiates a case for suo motu contempt against an officer who prevents delivery of justice or challenges the dignity of court.

2. Reopen old cases:  If some new and substantial evidence is discovered after a case is closed, the courts have the power to take suo motu action and reopen the case to try it again.

3. Order probe for a new case:  If any court is of the opinion that some injustice is being done to an aggrieved person or a section of people, the court can order probe at any level by any government authority, police department, the CBI, etc. The court may also take such action after receiving a letter from the affected section of people or on the basis of any news, documentary or media source.

Though the rights conferred by the constitution other than fundamental rights are also valid rights protected by the judiciary, in case of fundamental rights violations, the Supreme Court of India can be approached directly for ultimate justice per Article 32 of the Indian Constitution.

All people, irrespective of race, religion, caste or sex, have been given the right to petition directly the Supreme Court or the High Courts for the enforcement of their fundamental rights. It is not necessary that the aggrieved party has to be the one to do so.

Poverty-stricken people may not have the means to do so and therefore, in the public interest, anyone can commence litigation in the court on their behalf. This is known as “public interest litigation”. In some cases, The Supreme Court has acted suo moto on their own on the basis of newspaper reports.

In conclusion…

It is evident from the recent events that the BJP MLA Kuldeep Singh Sengar (now expelled from the party) is one influential person, specially in his home town and the Supreme Court is well aware of this fact. After the transfer of the cases from Uttar Pradesh to Delhi, the SC also ordered the transfer of Mahesh Singh, the uncle of the rape victim and a key witness of the case to Tihar Jail from Raebareli Jail.

The crime, the audacity of the crime and the plight of the victim’s family has inspired people to explore the issue in question and the media channels, after the recent road accident have become hyperactive in portraying the BJP MLA as a criminal.

Now that the Supreme Court headed by the Chief Justice of India himself has interfered in the matter, it is expected that in the end justice will prevail and all the offenders related to this heinous act will be punished. The Supreme Court is also expected to lay down stricter and stringent laws on protectors becoming perpetrators.

-This article is brought to you in collaboration with Shivaang Maheshwari from Gujarat National Law University, Gandhinagar.

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