Justice Madan B. Lokur | Sanjay Ahlawat
The sequence of events in the wrestlers versus Brijbhushan Singh saga confirms that our laws, including the Protection of Children from Sexual Offences Act, can be made toothless and our criminal justice system easily manipulated.
The Wrestling Federation of India does not have an internal complaints committee as mandated by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. No one in authority seems to be particularly concerned about this. The wrestlers, with nowhere to complain against their sexual harrassment, approached the government through the sports ministry. The authorities concerned―after a brief protest by the wrestlers at Jantar Mantar―condescended to set up two committees to look into the affairs of the WFI and the allegations of sexual harassment. The committee reports have not been made public and only an adverse presumption in law can be drawn with regard to the contents of the reports.
Even though complaints of sexual harassment and violation of POCSO are extremely serious cognisable and non-bailable offences, the Delhi Police declined to register an FIR at first. The wrestlers had to petition the Supreme Court of India, no less.
The FIR registered on the complaint of the minor’s father reveals that the offences include aggravated sexual assault punishable under section 10 of POCSO and offences under the Indian Penal Code relating to outraging the modesty of a minor, sexual harassment and stalking. The offence under POCSO is punishable with imprisonment of not less than five years and may extend to seven years.
What is the allegation against the alleged predator? Among other things, while pretending to have his picture taken with the minor, he “deliberately slid his hand down her shoulder and brushed his hands against her breasts”. If this allegation is considered with similar allegations by other wrestlers, it does appear that the accused is a serial predator who is taking advantage of his position of power and sexually exploiting women wrestlers.
After registration of the FIR, one would have expected the Delhi Police to swing into action and investigate the allegations. It was not to be. [The offences are cognisable and non-bailable]. The accused is a powerful politician who can influence witnesses and can tamper with evidence. He may not be a flight risk, but, like some influential accused, he can be “untraceable” at least for some time. Under these circumstances, the police ought to have immediately summoned him for questioning, if not arrested him. Please remember, the police have made arrests even in bailable offences. Clearly, the police are on the side of the accused. Can we expect them to conduct an impartial investigation?
The wrestlers have already lost their dignity and bodily integrity. They were compelled to protest at Jantar Mantar for more than a month but no substantive action was taken against the alleged predator. Under the circumstances, they wanted to march peacefully to Sansad Bhavan. The right to protest peaceably is a fundamental right guaranteed under Article 19(1)(b) of the Constitution. Instead, they were prevented from doing so, beaten up and detained. They are now prohibited from protesting at Jantar Mantar.
To make matters worse, the Delhi Police have registered FIRs against them. They have been accused of rioting, obstructing public officials (Delhi Police) from performing their duty and of sundry other criminal offences. Imagine the irony. The process of seeking justice has resulted in the wrestlers being punished for it. They have been made to suffer physically, emotionally and psychologically.
But, this is not the end of their travails. The authorities say that the law will take its own course. The authorities can decide on the direction and pace of the course. They are in the driver’s seat and hold the steering wheel, they have their feet on the brakes and the accelerator. The law reports are full of cases where investigation has been shoddy to say the least. Remember Aryan Khan’s case? Given the events of the recent past, can anybody guarantee a fair and impartial investigation by the Delhi Police?
The wrestlers have government jobs. Reports suggest that they have been issued a show-cause notice by their employer, the Railways, to show up for work. This has compelled them to pause their protest and report to work, failing which they can be sacked. It is so easy to pressure a woman who complains of sexual harassment. This is one form of economic duress. While summarily sacking the complainants would be illegal and unconstitutional, that declaration can be given only by an appropriate court or tribunal, which may take years. Remember, only a few days ago a strongman in Uttar Pradesh was convicted for a murder committed in 1991. The law took its own course and meandered for more than 30 years.
The authorities can debar them from participating in competitive sport so that they do not win any more medals for India. Their passports can be confiscated as they are facing criminal investigations; lookout circulars can be issued to prevent them from going abroad to participate in competitive sport. Will the authorities go so far? It is quite possible, given the vindictive manner in which they have dealt with the wrestlers and the manner in which they are currently being dealt with. Now you know why complainants and witnesses turn hostile and why those in power never get convicted.
What of the minor? Reports suggest that she might have withdrawn her complaint. Amazing, isn’t it? Is she under some career pressure? If this is true, apart from the alleged predator getting away scot-free, the girl’s father, the complainant, can be punished under section 22 of POCSO with imprisonment up to six months for making a false complaint. See how easy it is to play around with the law and turn a victim of sexual harassment into a wreck?
The Supreme Court has said, on multiple occasions, that no self-respecting woman would make allegations of this nature without there being some element of truth in it. But look at what has happened. Not only has no substantive action been taken against the alleged predator, but the tables have been turned against the victims. What law protects the accused and re-victimises the wrestlers? Your guess is as good as mine.
―The writer is a former Supreme Court judge.