The Crime Branch’s starting question of the probe into the alleged rape and extortion by three personnel attached to the Sakinaka Police Station mars the optimism generated by the alacrity with which Rakesh Maria acted when informed of the incident. ‘What was the victim doing at the hotel in the wee hours of the morning, in the first place?’ looks, for all practical purposes, the starting point to build up a case for acquitting the three policemen. This apprehension is strengthened by the police’s insistence on a fresh medical test to indicate, if not determine, the veracity of the rape allegation.
Let’s not draw erroneous comparisons - this case is NOT like the one which happened in the Marine Drive police chowky in 2005. Constable Sunil More had been charged and convicted for rape, but that’s where the similarity ends. As more tawdry details emerge, it’s now clear that the Sakinaka case is one of rogue policemen - members of an elaborate extortion racket, who have routinely misused the powers vested in them by the Bombay Police Act and the Immoral Traffic Prevention Act (ITPA). It is almost like a legally empowered vice squad operating without any accountability. The very fact that they threatened the victim with charges of prostitution and booked her for public indecency under Section 110, bears testimony to this fact.
In 1997, an investigation by the National Commission for Women provided insights into how policemen across India use the law to run a lucrative extortion racket from prostitution, sometimes with the members of the raiding squads themselves acting as pimps. A 2006 memorandum that the Lawyers’ Collective - a legal rights organisation actively working for the cause of civil liberties and women’s rights, sent to a Parliamentary Standing Committee also emphasised how the ITPA was being used for rape and extortion - by the men in khaki. Such legislations deserve a through critique and radical overhaul, but our immediate concern is to see that in no way are the accused allowed to get away. The chances of that happening are quite strong, given Mumbai Police’s history of shielding tainted cops whose guilt was never in doubt.
Section 197 of the Code of Criminal Procedure, which requires the government’s sanction for prosecuting delinquent and errant public servants, would be the most potent tool. The police can argue that since the alleged acts were committed in the course of duty - carrying out raids - prior sanction of the government is mandatory. How can such atrocities be a part of duty, one might ask. But that’s how the law works, strengthened by some Supreme Court rulings. Only two days ago, the court held that such sanction is mandatory, even if the facts clearly showed some Karnataka policemen illegally detaining and torturing a suspect.
The case being such, if Maria is really sincere about justice being done, he should make sure that Section 197 is not invoked, and follow a precedent set by A N Roy, one of his predecessors. Roy ensured that a Special Public Prosecutor - independent of any government influence - was appointed to get More behind bars. But a proper investigation is the key to a successful prosecution, and the Crime Branch must not be allowed to continue on its victim-blaming trip.
The victim’s plight must not be ignored. In case she wants to testify as witness in the rape case, it is the state’s responsibility to provide her, at its own expense, with competent counsel. And because the violations have happened in police custody, once either sexual assault or rape is established, the apex court’s ruling in the Chandrima Das (2000) and Delhi Domestic Workers Forum (1993) cases must be followed, and the victim must be given an interim compensation of an appropriate amount. In no way should this preclude the grant of any compensation awarded by the court, were she to file a writ against the police.
The onus is on the police administration and the government to use this case as an exemplar of the oft-repeated claim that depredations by men in khaki shall be prosecuted and punished, as they ought to be.
Saurav Datta is associated with the Commonwealth Human Rights Initiative, Delhi, which works towards better policing. You can follow him on Twitter @SauravDatta29