Shamna Sherin
Another unfortunate incident has taken place which calls into question the political convictions and social commitment of enlightened and literate Kerala. With the political context of Kerala, a historical Women’s Human Chain was created and now the strength of this human chain is being questioned before it completes its second anniversary. We are forced to change our perspective in history from the image of progressive Kerala to a state where a nine-year-old girl does not have the conditions to live and study safely. Number one Kerala is hanging its head in shame as it is unable to ensure justice for the little girl who was sexually harassed by her own teacher. The accused who molested his own student without being charged under the POCSO Act has been released on bail.
In the last week of March, Childline activists lodged a complaint against Padmarajan, a local BJP leader, at the Panoor police station, Kannur, alleging that he sexually abused his student, a fourth-grader, from the school toilet in Palathayi, Kannur.
It was alleged that the girl was first molested by Padmarajan from the toilet at their School and then taken to a house in Poyiloor and presented her to another person. No progress was made in the first phase of the case, which should have been taken seriously under the POCSO Act and adjudicated as soon as possible. The police were unable to take the accused into custody even after expediting the investigation under the POCSO Act. The police’s justification was that the investigation could not be intensified due to the pandemic. The fact that the accused got an opportunity to hide from the probe team for a month in Kannur, where the police-force was strengthened during this lockdown, points at the serious fall from the side of police or to put it another way shows the cooperation of police towards the accused. The arrest of the accused at his relative’s house in Poyiloor comes a month after the case was registered under the POCSO Act following strong protests from people and media, highlighting the police’s inability to arrest the accused and the loopholes created by the accused’s escape time
Though Padmarajan was arrested following protests from various sections of the society, the Crime Branch started the investigation after a long delay. Finally, the partial charge sheet of the case was filed on the 90th day. But the charge sheet did not include any provisions under the POCSO Act. POCSO was acquitted, despite legal advice. The Crime Branch had sought legal advice from the Director General of Prosecutions in this regard. The legal advice given by the DGP’s office was that it was not wrong to charge POCSO or other acts based on the evidence obtained. As protests against the delay in filing a charge sheet in the case intensified, police filed a partial charge sheet just hours before the remand period was about to end.
The charge sheet contains only minor provisions of the Juvenile Justice Act and the Indian Penal Code. The charge of penalty under Section 85 of the Juvenile Justice Act is a fine of Rs.1000 or imprisonment for a maximum of 3 months or both. Section 75 carries a fine of Rs 1 lakh or imprisonment for up to three years or both. Section 323 of the IPC provides for imprisonment for up to one year or Rs. 1 lakh Under Section 324 of the IPC, intentionally injuring a person with a deadly weapon is punishable by up to 3 years in prison or a fine or both.
Police say more evidence and scientific investigations are needed to charge the POCSO Act. As a result, the accused was granted bail. As the investigation for scientific evidence progresses, it is undisputed that the defendant could have influenced the witnesses and created loopholes to escape from the case. The POCSO Act is based on the conviction that there is nothing unbelievable in the victim’s statement and its legal validity.
According to the police, the girl’s statement before the magistrate was not credible to the police and the child’s mental health was in doubt. In the Walayar case too, the police tried to justify the mental state of the girls. At that time, Police Inspector Sojan said it publicly and later got a promotion.
For police who prolong the cases for scientific evidence, what was the rush to arrest the tribal youth in Wayanad, despite the fact that the marriage was consensual? In Wayanad many Adivasi youths belonging to Paniya Tribe had been charged with POCSO and jailed for months for following tribal customs in marriages mentioning age of the bride being less than 18 years. Those tribes who remarried consensually were imprisoned under the same serious provisions of the POCSO Act and also charges including rape, sexual assault and kidnapping. The sole source of income for many families, including pregnant wives, has thus ceased to exist. Their family members went to court several times but the police did not consider any of their statements. When the issue was discussed and protests erupted, police responded by saying, “We can do nothing, because of the complexities of the POCSO Act.” If the same law is felt differently by those at different levels of societal privileges, then we have to say that our legal system and its interpretations are mere letters. If we look at the graph of social inequalities in the context of contemporary India, such laws fall on socially marginalized families of Dalits and Muslims who are the poorest, the most illiterate and the most deprived of basic resources and they suffer the most with these laws.
In the Walayar case, a Dalit family can be seen to have denied justice. On January 13, 2017, an 11 – year – old girl was mysteriously murdered in a one – room house at Attam Pallam, Selvapuram, a border village of Walayar in Kerala. Despite the apparent evidence of murder, the police tried to make it look like suicide. The 9-year-old sister of the slain child testified that she saw two people coming out of the house hiding their faces on the day of the death, but police did not even consider it. Despite death threats against the mother of the murdered child, the police did not prepare for the investigation or provide adequate security for the family. The Home Department’s position changed only after the second child’s death in a similar manner 51 days later. According to the post-mortem report, both of them had been sexually abused several times before they were killed. Although the investigation was intensified by replacing the originally appointed investigating officer, the prosecution failed to prove the accused as guilty and acquitted all those who were accused. It should be noted that the Chairman of the Child Welfare Committee appeared for the respondent in the case. Later, Chief Minister Pinarayi Vijayan, who is also the Home Minister, had to admit that the police had made a serious mistake in the Walayar case. The Vigilance Tribunal had appointed former judge PK Hanifa to probe the alleged misconduct of the police in the investigation. But the fact is that even if this committee creates any significant diversions in the case, they will not have the backing of law. Double jeopardy can be used as a procedural defense by the defendant under Article 20 (2) of the Constitution of India, which guarantees the rights of citizens. That is, a person who has been convicted in a case should not be tried later on for the same offense or offense of the same nature.
Therefore, it has to be said that the second commission of inquiry appointed is a farce to cover up the negligence of the Home Department. Even if POCSO is no longer charged in the bridge case, the police can easily acquit Padmarajan, who added in the charge sheet that there were contradictions in the girl’s statement and that the teacher was not at school during the time which the girl mentioned in her statement.
After the accused was granted bail in the Palathayi case, CPM state secretary Kodiyeri Balakrishnan demanded that the government should seriously probe into the circumstances of granting bail and consider whether there was any lapse on the part of the police or the prosecution in the court during the investigation phase of the case. It is clear from this case that after completing the major phases of investigation, coming up with such statements and asking for the further inquiry would not help in getting justice for the victim. Pinarayi Vijayan, who is also the Home Minister, has publicly acknowledged the failure of police in the Walayar case, but we have seen how weak the legal aspect of it can be. “I don’t know much about the case, I will look into the matters and take a decision, “said the Chief Minister. Has the Chief Minister, who is the political and administrative leader of the state, degenerated into using the usual patriarchal style of “many people in the country talk about it” in a public forum, even though it is an issue that hurts the dignity and pride of a girl child? How can the Chief Minister, who is the responsible Home Minister, say so indifferently that he does not know much about the case?
The government and the home department are trying to be indifferent to public questions about the Sangh Parivar and are trying desperately to protect the accused.
In the unique political context of Kannur, it is a matter of concern that despite such a severe complaint against a BJP leader was raised, BJP which is considered to be a declared enemy of the ruling CPM, there has been no major pressure from the ruling party to convict him. Although Palathayi is located in Panur, a stronghold of the CPM in Kannur, there was not enough protest from the CPM local leadership. Pinarayi Vijayan, the Chief Minister of Kerala, who is also in charge of the Home Department, is an elected representative from Panur’s constituency. Today, it is the home constituency of Shailaja Teacher, the most powerful woman representative in Kerala and the Minister for Health, Women and Child Welfare.
During the preliminary investigation of the Palathayi case at the Panur police station, when Pinarayi Vijayan was in power and Pinarayi Vijayan was the Home Minister, the party district secretary P Jayarajan went on a rampage and spoke out against the police, alleging that the police were only unilaterally prosecuting party workers. After the incident, the CPM Kannur district committee led a protest march to the district police headquarters alleging that the BJP activists were not being investigated effectively in the case. These are examples of the fact that such incidents are common in the Home Department and that the party’s influence is not significant among high-level moves. Despite working day and night for the party in TP’s blood-stained Vadakara, the political move to not to give the post of district secretary to P Jayarajan, who resigned the same post during the Assembly elections, should be considered as the result of these protests.
The hierarchal adjustments of similar nature have resulted in the Women’s Commission, the ruling party’s student body SFI, and the SFI’s women – supporting organization, Mathrikam having nothing to speak about the Palathayi case. How can we interpret the silence maintained by the young comrades who once organized a strong protest led by the Kozhikode District Committee and the Ernakulam District Committee on the 6th of July, last year in protest against the status quo on the issue of violence against women? Although some of the Left supporters from the student community, lawyers, teachers, doctors, and other communities broke the silence, they ended the protests by criticizing only the Sangh Parivar and the court. All such protests, in which the pointing finger is inaccurate, are hypocritical. Democrats cannot be so indifferent to the fact that the Left regime sides with the fascists and serves the RSS, the guardians of the Deep State agenda proclaiming right-wing politics during the Sangh Parivar rule in India. Remember that Pinarayi Vijayan, who criticized Home Minister Ramesh Chennithala for supporting the Sangh Parivar during the UDF rule, is the Home Minister of Kerala now. Today, the Left government is proving that social values or justice have no value in the equations of power politics.
MC Josephine, the chairperson of the Kerala Women’s Commission, said she did not know about the harassment of the student and the filing of the charge sheet in the Palathayi case. Nobel laureate Nadia Murad who played a major part in relocating thousands of women who were raped and incarcerated in terrorist camps during the Iraqi War of 2004, who also wrote in her book; Last Girl’ about how a woman feels when a man enters her without consent, once met American President Donald Trump to explain the plight of Yashidi women and the need to free them. When mentioned about being a Nobel laureate, Trump wondered, “Nobel Prize? For you? Why?”. Angered by this, MC Josephine wrote an article in the weekly ‘Sthrishabdam’, expressing concern about the misogyny of the ruling men. It is unbelievable that the chairperson of the Women’s Commission, outraged by the anti-feminism of the US President, is unaware of the most discussed cases in Kerala. Could Josephine’s political side be translated as different responses to feminism and misogyny in political-national and international incidents?
In that case, the chairperson of the Women’s Commission must have had the same political conviction in the case of Dr. Hadiya.
If we look at the Faisal murder case, the Riyaz Moulavi murder case, Dr. Hadiya’s case, the Ghar Wapasi cases, MM Akbar, and the Peace School case, we could see the judgments in cases connected with Sangh Parivar. Despite the fact that National Investigation Agency ruled out the existence of Love jihad stating that the Love Jihad was merely fictitious, the Kerala High Court had charged Love Jihad in the Hadiya case, and later it was mentioned in the charge sheets that the accused were suffering from mental problems in the Faisal murder case and the Riyaz Moulavi murder case. The same ministry under the same government is investigating the Walayar case and Palathayi case and there is not even a remote possibility of getting justice.
The High Court’s ban on open strikes due to the pandemic and lockdown has come in favor of the government here. The people’s representatives, including the Chief Minister, despise the questions of the general public out of the conviction that they can suppress public outrage and protest during the Lockdown period by responding to everything indifferently. But even in this situation, each of us has to evaluate who we are with. There should be voices of dissent not only for survival but also for our existence.
Shamna Sherin is a law student at Government Law College Ernakulam.
