Kapil Sibal, who has represented the protesting wrestlers in the Supreme Court, says politics has overtaken the seriousness with which the police should have acted. “Even in the case of sexual harassment (wrestlers' allegations against Brijbhushan Singh), even though POCSO may not apply, arrest should be imminent. The allegations made relate to offences that are cognisable and non-bailable,” he says.
Sibal also points to a systemic failure in prosecuting the accused after the gruesome Nirbhaya case of 2012. “We need drastic measures to curb the menace of sexual violence, which over the years has escalated by leaps and bounds.” Excerpts from an interview:
Q/ It has been more than a month since the Delhi police registered an FIR against Brijbhushan Singh on charges of sexual harassment. Do you think there is delay in police action?
A/ The law, as it stands today, is that if the prosecutrix makes a complaint and an FIR is registered, given the gravamen of the allegations along with the attendant circumstances, the accused is liable to be arrested forthwith. However, these particular proceedings have assumed political overtones, which suggest that the Delhi police have made up their mind not to arrest the accused. The fact that senior ministers and leaders of the BJP as well as the RSS are completely silent, even though the matter has attracted global attention, is signal enough to the investigating agency as to which way it should proceed. It is extraordinary that women wrestlers who have done us proud have been treated in this shabby manner.
That politics has overtaken the seriousness with which the police should have acted is clear from the fact that no FIR was registered till the matter was moved in the Supreme Court and a senior law officer assured the court that an FIR would be registered. Otherwise, under standard operating procedures, an FIR should have been registered forthwith. Even the [statement under] section 164 (CrPC) of one of the victims was not recorded until it was raised as a public issue. After such a statement, there should have been no hesitation in arresting the accused.
Q/ How different are the Indian Penal Code sections of sexual harassment and stalking from POCSO in terms of action by the police and the punishment?
A/ Even in the case of sexual harassment, even though POCSO may not apply, in allegations of this nature, arrest should be imminent. The allegations made relate to offences that are cognisable and non-bailable. Women are loath to make allegations of sexual assault because of the fallout. It requires enormous courage to reveal details about the manner in which the accused allegedly sexually assaulted these women wrestlers. It is not as if the victims did not exhaust all possible avenues before publicly exposing the alleged acts of sexual abuse. It is evident that details in respect of when, how and where the sexual abuse took place have been fairly graphically stated by mentioning the international events where it took place as well as details in respect to the year and period during which this happened. Newspaper reports also suggest that some witnesses have corroborated the allegations.
Q/ The Justice Verma committee set up in the aftermath of the 2012 Nirbhaya case explained in great detail why offences like sexual harassment, stalking, voyeurism need to be dealt with as criminal offences. After a decade, do you think there has been a systemic failure in recognising these offences?
A/ After Nirbhaya, there has been a systemic failure in not prosecuting the accused who are alleged to have committed these offences. In fact, in several instances, the investigating agencies are perceived to have gone out of their way to shield the accused, especially those with certain political affiliations. We need drastic measures to curb the menace of sexual violence, which, over the years, has escalated by leaps and bounds. The Kathua rape case and the Bilkis Bano case are examples of how politics plays a somewhat unedifying role in certain situations.
also read
- Why did Vinesh Phogat MLA decide to come out of retirement ahead of Los Angeles Olympics?
- Planned 'payback'? 'Rampage' Jackson's MMA-fighter son Raja interrupts his match, almost kills opponent 'Syko Stu' | WATCH
- Back to where it all began? WFI operating from controversial ex-chief Brij Bhushan Singh’s house
- BJP trying to suppress cases of injustice against women, says wrestler-turned-politician Vinesh Phogat
- India's participation at World Wrestling Championships cleared
Q/ Innocent until proven guilty or guilty until proven innocent? How does the legal system handle such cases when the accused has completely denied all allegations?
A/ No accused will ever accept allegations of sexual assault. [There was an] absence of action against the accused, even though the allegations were brought to the notice of the authorities much earlier, after which a committee inquired into the matter. It is also learnt that the allegations were brought to the attention of the Home Minister (Amit Shah). Yet, no action was taken till the matter reached the court. Given the fact that each of the women wrestlers has given adequate details about the sexual assaults should have led, at the least, to the registration of an FIR and a fair investigation.
Merely because the accused is arrested does not mean that he is guilty of the offence. It only means that the allegations prima facie have a grain of truth and that the accused is innocent till proven guilty in a court of law. This applies to all accused even in the case of offences unrelated to sexual assaults.
Q/ The Delhi High Court has to take a decision based on the status report filed by the Delhi Police. Legally speaking, what are the options before the court in case there is insufficient evidence to prove the charges in a court of law?
A/ If the Delhi Police have come to the prima facie conclusion that there is insufficient evidence to prosecute the accused, then a closure report is required to be filed, which the judge may reject. If accepted, the victims will have the right to file protest petitions to challenge the closure report.
Q/ Evidence in sexual harassment cases is a grey area; it is hard to prove such assaults, especially after a few years. Is there a way forward for victims who come out after gathering courage to speak up?
A/ It is true that evidence in sexual harassment cases is hard to [get] as most such assaults are committed away from public view and the only evidence is [the statement] of the victim. The credibility of the victim’s evidence is, in turn, dependent on the nature of the statement, the details provided therein and the attendant circumstances in which such assault took place. Judges are experienced enough to assess the quality of these statements to come to a prima facie conclusion that the accused be prosecuted. When there is a statement under section 164 (CrPC), before a magistrate, that gives further credibility to the accusations made. In this particular case, however, the authorities were aware of the allegations made much before the FIR was registered.
Q/ The accused has claimed it is a political conspiracy to tarnish his image.
A/ Prima facie, the political conspiracy theory floated by the accused has little to support it. There is no reason why women wrestlers would make such allegations, for they stand to gain nothing, and lose everything. They become the subject matter of unsavoury public discourse, trolling and, in the process, jeopardise their careers. In the present case, the public perception is that the accused is being protected. The victims are targeted and their reputation is ought to be damaged. However, it is alleged that several criminal cases against the accused, with respect to serious offences including [those] under sections 302 and 307 (IPC), are either under investigation or pending.
Q/ How do you think the image of Indian sports has been impacted with the ongoing protests?
A/ The plight of our women wrestling icons has caught the attention of the international community. The manner in which the investigation has been carried out has brought down our image as a nation. It is a matter of shame that our image is being tarnished internationally merely because the accused, who allegedly committed the offences, belongs to a particular political party.
Q/ Can this incident dissuade women from taking up sports as a career?
A/ The progress of this investigation and the manner in which these women wrestlers have been humiliated publicly—by physically assaulting them while exercising their right to protest—will deter women athletes from taking up wrestling as a sport. I think this particular incident, which has enraged thinking people, will certainly help revamp the manner in which women wrestlers are dealt with. I hope that procedures will be put in place to address allegations of this nature in future. Victims of sexual assault should never feel abandoned by the state, as in this case. They must have the confidence that the wheels of justice will not be tainted.
