'Will a son rape when his mother is near?': Hathras accused invoke ‘Indian culture’ as defence

Promise of fast-track courts and speedy prosecution notwithstanding, procedural delays continue to mar the legal process.

ByNidhi Suresh
'Will a son rape when his mother is near?': Hathras accused invoke ‘Indian culture’ as defence
Shambhavi Thakur
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It has been nearly five months since Asha’s mother found her daughter naked and barely alive in a field close to her house in Uttar Pradesh’s Hathras. Asha, a 19-year-old Dalit woman from Uttar Pradesh’s Hathras, succumbed to her injuries on September 29, 2020, and was forcefully cremated by the Uttar Pradesh police early in the morning of the next day.

After two months of investigation, the Central Bureau of Investigation filed a chargesheet in the court of special judge in Hathras on December 18. As per the CBI investigation, four Thakur men – Sandip, Ravi, Ramu and Luvkush – were charged with Asha’s gangrape and murder.

The day she was forcefully cremated, Chief Minister Adityanath tweeted that clear instructions had been given for “prosecuting and effective lobbying in fast-track courts against those convicted for Hathras incident”.

Despite this, five months after the gangrape and murder, the case is still not in a fast-track court. Procedural delays have hindered the hearing process and, despite the findings of the CBI investigation, three of the accused have applied for bail on the grounds that “honour killing cannot be ruled out”.

“The speed of this case is simply appalling,” said advocate Seema Kushwaha who represents the victim’s family.

At the moment, with regards to Asha, there are two simultaneous cases going on. The first, of her gangrape and murder, is being heard by a special court mandated under the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989, in the Hathras district court. The second, of her forced cremation, is being heard by the Lucknow bench of the Allahabad High Court.

‘Indian culture’ defence

On January 4, the four accused were brought to the Hathras district court, their charges read out to them, and a copy of the chargesheet handed over.

Four days later, advocate Munna Singh Pundir, who represents all four accused, filed a bail application for one of them, Ramu. The hearing was scheduled for January 20 but was rescheduled because of a strike in Hathras. On January 29, after hearing both parties, special judge BD Bharti of the SC/ST court rejected the bail plea.

This was followed up on February 3 when Pundir filed bail applications for Ravi and Luvkush, two other accused in the case. On February 10, the district court heard the arguments and rejected their pleas, said Kushwaha.

Luvkush’s bail plea asserted that he was 18 years old but the CBI investigation maintained that he is 21. The main accused, Sandip, has not moved for bail.

The accused being brought to court.

The accused being brought to court.

Pundir claimed that Ramu is 30, Ravi is 32 and prime accused Sandip is only 19 years of age. Meanwhile the CBI chargesheet notes that Ramu is 29, Ravi, 30 and Sandip is 22 years of age. Of the four accused, Ramu, Ravi and Sandip are related. Ravi and Ramu are Sandip’s uncles. The three of them lived together with their families opposite Asha’s house in Hathras. Luvkush lives with his family behind Asha’s house.

Pundir told Newslaundry, “According to Indian culture, it simply not possible for a nephew to rape a woman in front of his uncles, especially during the day when they can all see each other. As per our culture, a man will not rape a woman if his relatives are around. Hence Ramu, Ravi and Sandip are innocent.”

Pundir elaborated that when Asha’s mother had found her naked and injured, it was Luvkush and his mother who fed her water. “So, this means Luvkush’s mother was around when the incident happened. Why will a son rape a woman when his mother is close by? And why will he give her water if he just raped her? Like I said, this is against Indian culture,” he said.

Asha’s brother told Newslaundry that even though Luvkush’s mother came running when Asha was found, it was not her or Luvkush who fed her water. “When we found our sister, it was the children from our own family who went running back to fetch water for Asha. Luvkush was not ever there and his mother just stood watching,” he said.

Regarding the statements made by Pundir, Kushwaha said, “What Indian culture are they talking about? This is a toxic, male dominant, patriarchal society. We need to be talking about patriarchy, not Indian culture. We need to be talking about how a woman cannot defend herself in life or in death.”

According to Kushwaha, this is a clear case of “men uniting to justify their crime”. “Until and unless a woman’s body is completely destroyed, these men will not consider rape as rape,” she said.

‘Honour killing cannot be ruled out’

According to Luvkush’s bail application, his name was entwined in the case due to “pre-existing annoyance and enmity with the family of the applicant”. It also noted that Luvkush’s name was not included in the initial FIR filed at Chandpa police station on September 14, 2020 and was “later included after the family was tutored by politicians”, Pundir claimed.

The bail application maintained this is not a case of gangrape but, because of the involvement of political parties who entered the case for “political mileage, a fake and fabricated incident which has been made into a national issue for TRP”.

The application went on to claim the involvement of politically connected people who deliberately cooked up a false story of gangrape and involved a family using greed for money.

According to the document, the CBI probe was conducted because of the “hyperbolic nature” of reporting by electronic, print and social media news organisations.

It stated that as per the CBI chargesheet, it can be concluded that Asha was a “well-built lady”, Sandip and Asha were having an affair, their families were against this relationship, and hence, “the possibility of honour killing cannot be ruled out”.

Pundir told Newslaundry that Asha and Sandip had previously been in a relationship and both families did not accept it. “This is a clear case of honour killing. This gangrape theory is all politics,” he said.

Rubbishing these claims, Kushwaha said that despite the contents of the bail application, the focus must not shift from the fact that the core conclusion of the CBI chargesheet remains that the four men gangraped and murdered Asha. She also pointed out that the counter argument for gangrape cannot be that Sandip and Asha were in a relationship. “First of all, it is not clear if they were in a relationship or if Sandip was harassing her continuously. Secondly, even if they were in a relationship, how is it okay for him to rape her?” she asked.

Systemic delays

Multiple factors have been slowing down the hearings of the case. On January 16, after audio-visual recordings in the case were played, heard and placed in front of the Lucknow bench of the Allahabad High Court, the two-judge bench scheduled the next hearing for January 27.

The important hearing for the “forceful cremation” had to be rescheduled due to the absence of Justice Ranjan Roy. A date is yet to be set for hearing.

Another major delay was in the handing over of the chargesheet copy to the victim’s family and lawyer. Copies of the chargesheet, which was filed by CBI on December 18, were given to the four accused on January 4.

Generally, in cases where charges under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 are not applicable, once the investigating party files the chargesheet, a copy is handed over to the accused. The victim’s family may then file an application in court seeking a certified copy of the chargesheet.

Nevertheless, this is different when a case is registered under the SC/ST Act. Here, it is the state government’s duty to ensure proper implementation of the rights and entitlements of the victims and witnesses. At every stage, a victim's family is entitled to know the status of investigation, chargesheet, and be provided a copy of the chargesheet free of cost.

In this case, it took Kushwaha more than a month, 38 days, to procure a copy of the chargesheet. She said that on January 4, when a copy was handed to the accused, Asha’s family was denied a copy that they should have rightfully received. When she herself sought a copy twice after that, the court denied the request.

“Whenever I asked why they would not give me a copy, they had no real answer. They kept saying that since the CBI is investigating, they need permission from higher authorities. I told them the hearing was about to begin so I needed the chargesheet early to prepare arguments and they still wouldn’t give me a copy,” she said.

On January 20, while Ramu’s bail hearing was postponed, Kushwaha once again appeared in front of special judge BD Bharti at the SC/ST court to request a copy of the chargesheet. “That day, the court told me they need the CBI’s permission to give me the chargesheet. So, I told the judge that the court is bound by law to hand me the chargesheet and if they don’t, it will be violative of the SC/ST Act.”

Finally, on January 25, two days before the hearing at the Lucknow bench of the Allahabad High Court, Kushwaha received the chargesheet.

Empty promise

On September 30, Chief Minister Adityanath announced that Asha’s case would be heard in a fast-track court. Additionally, he said, the family would receive Rs. 25 lakh as compensation, along with a house and a government job to one family member.

Asha's family

Asha's family

“We’ve got the money but so far we have heard nothing about a government job or house,” Asha’s brother said.

Kushwaha stated that it is possible that the high court can redirect the case to a fast-track court soon. “But what happened to the CM’s promise of a job and a house? He never even bothered to visit the family. Why is he not keeping his promises? Are they being treated this way because they are Dalit?” she asked.

She said that she raised questions about the promise of a job and house in front of the Allahabad High Court, but a hearing on this is yet to be scheduled.

A restless wait

On October 12, Asha’s father urged the high court to transfer the case out of the state as they “did not have faith in the local authorities”. On October 27, Chief Justice of India SA Bobde said that the transfer of case would be considered once the CBI probe was complete.

Now that the CBI chargesheet has been filed, Kushwaha said that she will appear at the Supreme Court on February 12 to ask that the case be transferred out of Uttar Pradesh.

Since November 1, as per Supreme Court directions, Asha’s family was provided security. When asked on the phone about family’s wellbeing, Asha’s brother paused and said, “Tired, tired, tired.”

“What can I say? We are trying to understand the law. We are trying to eat, to wake up, to talk to each other, and to pass the day. We’re sleeplessly waiting for justice. What else is there to do?” he asked.

Meanwhile, Kushwaha said that she has written an email to the ministry of home affairs, seeking security for herself. “I don’t feel safe, I have been getting threats. So, I have asked for security,” she said.

Some names have been changed to protect identities.

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