New Delhi, Nov 5, 2017
By Niriksha Sanghvi and Pavani Nagaraja Bhat
(The Citizen)
On July 31, 2017, an incident of sexual assault was reported in the Maoist-affected Dantewada district of Chhattisgarh. A group of girls were reportedly molested by two Central Reserve Police Force (CRPF) personnel at a government hostel in Palnar village during a cultural function held on Rakshabandhan.
Two weeks before this incident, on July 16, 2017, two women of the Chakma tribe in Mizoram were allegedly followed by two Border Security Force (BSF) personnel to a forested area; one was allegedly raped and had acid splashed on her face while the other was found dead under mysterious circumstances.
The accused were arrested by the Mizoram Police six weeks after the incident was reported, since the BSF had initially refused to hand them over.
Sexual violence by paramilitary forces in conflicted areas is not recent. In fact, such cases have been reported since 1990s. Few can forget the 2004 extra-judicial killing of Thangjam Manorama, the Manipuri woman who was shot after being allegedly raped by personnel of 17 Assam Rifles Team.
Till date, no prosecution has been initiated due to the blanket protection that security personnel enjoy under the Armed Forces (Special Powers) Act, 1958 (AFSPA). After a decade, the Supreme Court directed the Central Government to compensate Manorama’s family with Rs. 10 lakhs in 2014.
In July 2017, the Apex Court remarked in a case which brought 1528 alleged extra-judicial killings in Manipur before it that compensating affected families should not be used to evade punishment for arbitrary and excessive use of force in the first place.
AFSPA is not applicable to Chhattisgarh and was lifted from Mizoram after the 1966-1986 Mizo insurgency. Even then, special protection from arrest and prosecution is claimed by paramilitary forces delaying processes.
In the Chhattisgarh case, an FIR was registered against the suspects a week after the incident under section 354 of IPC for assaulting a woman to outrage her modesty and the Protection of Children from Sexual Offences Act, 2012 (POCSO).Sections 9 and 10 of POCSO define sexual attack by security personnel as an “aggravated sexual assault” and prescribe enhanced punishment.
The CRPF also initiated an internal court inquiry based on the complaint. The two accused were identified from photographs of the CRPF battalion stationed at Palnar village shown to the victims. While one was arrested, the second is reportedly absconding.
The National Human Rights Commission (NHRC) has reported that in 2015 alone at least 16 women were victims of gang-rape, sexual violence and physical assault by CRPF personnel in Bijapur, Chhatisgarh.
When crimes of this nature against civilians are alleged, it is the duty of the security forces to hand over the suspects to the local police to facilitate free and fair investigation. However, the arrest and prosecution in these cases has become a herculean task due to protection under Sections 45 and 197 of the Code of Criminal Procedure.
These provisions entitle the personnel to claim the sanction of the central government before being arrested or prosecuted for “acts committed in the discharge of official duties”.
The commission of sexual violence or murder certainly do not qualify the test of “discharge of official duties” and official immunity is excluded for such acts.
In fact, following the Justice Verma Committee Report and the 2013 criminal law amendment, sexual offences are to be tried in ordinary criminal courts even against persons of security forces. Despite this, army courts have on occasions upheld their own jurisdiction to try and sentence army suspects.
Additionally, in the cases discussed above, the offenders are punishable under the Prevention of Atrocities (Scheduled Caste and Scheduled Tribes) Act, 2012 which entitles the victims to compensation and provides enhanced punishment to the perpetrators. But this is hardly implemented.
While the media can be credited for playing a proactive role in bringing these incidents to light, enabling NHRC to take suo motu cognizance and civil society groups to conduct follow up campaigns, yet it also has not followed the reporting procedure set by the NHRC.
Coverage is largely built around incidents where a formal FIR has been registered or which have been acknowledged by the state. NHRC has published guidelines requiring the media to “report subsequently on actions taken by concerned authorities and continue to report till action is taken to punish the abusers”.
Women in conflict zones are repeatedly subjected to sexual abuse, as we have seen, and need full protection of the law. Law makers, law reformers and the criminal justice system need to be much more robust in their responses to accounts of harm. They need to heed the report of Justice Verma Committee which declared that “rape and other forms of sexual assault [by security forces] have been found to be consistently deployed as an expression of power and must not necessarily be seen as ‘crime of passion’ only.” Read More