The autonomy and the supremacy of the law cannot be taken for granted, because it is dependent on political commitment and a robust rule of law culture. Contemporary Indian society is passing through a phase of an all round weakening of the rule of law, mainly on two counts: first, a trust deficit in the colonial model of the rule of law, and second, a faith-oriented majoritarian re-imagination of laws that locate their essence in the divine providence. The malaise of such weakening is best exemplified by the case of the Indian medal-winning wrestlers and their complaints of alleged sexual harassment, where there has been no resolution even after their long sit-in protest in the national capital.
The airing of complaints
For almost a decade now, women trainee wrestlers — this also includes award-winning sportspersons — have faced and put up with alleged sexual advances and grave indignities during their training. In January 2023, some of the wrestlers began their sit-in/dharna at Jantar Mantar, New Delhi. Despite the Sports Ministry referring the batch of complaints to an oversight committee, there was no concrete and satisfactory outcome.
After being subjected to insensitive probings during the depositions, the wrestlers decided to resume the sit-in in late April. This time the protest appeared to be better organised; there was more public support and the survivors also approached the Supreme Court of India, where the Chief Justice of India passed orders relating to the registration of the First Information Report (FIR) under the relevant laws and providing security to the wrestlers.
As a sequel to the orders of the Court, the Delhi Police registered two FIRs: the first, under Sections 354, 354A, 354D and 506 of the Indian Penal Code and the second, under the provisions of the Protection Of Children from Sexual Offences (POCSO) Act in connection with the minor wrestler’s allegations. With the registration of the two FIRs for the first time, the sexual harassment complaints came into the domain of criminal justice, making them the subject of police investigation as well as judicial oversight.
Following this, the alleged perpetrator and his followers began a campaign to vilify the wrestlers following growing public and even some political support. The campaign of vilification even went to the extent of critiquing the very basis of the POCSO Act. Growing support for the wrestler’s cause and increasing social visibility of the issue pushed the Union Home Minister to try and resolve it politically by having a closed door meeting with the representatives of the protesting wrestlers in June, followed by a more exhaustive meeting with the Sports Minister; this also included ‘advising’ the protesting wrestlers who hold regular jobs to resume work. As a sequel to the talks and assured relief, the sit-in ended, with the wrestlers saying their fight would now continue in court.
Slothful and selective investigation
As a key criminal justice agency that occupies the top slot in the investigation of crime, the Delhi Police ought to have responded quickly when internationally acclaimed wrestlers levelled serious charges against the perpetrator/politician who also occupies a top position in the sports world.
After the first sit-in, which also highlighted the murky goings-on in the Wrestling Federation Of India, the police could have acted as in Section 156(i) of the Code of Criminal Procedure (Cr.P.C.), i.e., “Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII”, like the Magistrate under Section 190(c) of the Cr.P.C.
The Delhi Police is also under legal obligation, under Section 166A(c) in the amended Penal Code of 2013, as in the amendment to the Penal Code, which makes the ‘non-recording’ of information about sexual offences an offence punishable up to two years imprisonment. Therefore, when the Solicitor General advised the Supreme Court on May 28 that the FIRs would be registered ‘if your Lordships so directs’ and the Court complied with the wish, both displayed unusual deference to the Delhi Police. The Delhi Police would have been better reminded of their obligation to follow the mandatory FIR registration, as laid down in the ruling in Lalita Kumari (2013).
The Delhi Police has taken its own time in investigating the crime, with a focus on the credentials of the complainants and only cursory fact gathering as far as the accused persons are concerned. Despite an FIR that falls under the POCSO Act, the prime accused person has not been interrogated or subjected to any kind of restraint even as he continues with this campaign of vilification on social media in an attempt to mount pressure on and intimidate the witnesses.
Police selectivity in the investigation became legally established when after over 40 days of investigation, the police filed its long report in two parts: a charge sheet relating to different sexual offences against the adult wrestlers, and a closure application (over 500 pages long) in connection with the POCSO Act offence. The closure application relied on an extra-legal withdrawal application by the minor, who is alleged to have made the first complaint, including a statement under Section 164 in a state of anger or dispiritedness.
Should the police have total supremacy in matters of the line of investigation, time taken and the final outcome of investigation?
The rule of law course correction
The credibility and endurability of the rule of law is critically linked to universal and equal applicability in all situations, which is ensured by the equality principle propounded by legal philosophers. In the context of the sexual harassment complaints and FIRs, the equality principle demands a free, fair and impartial investigation that ensures a just and expeditious disposition of the complaints. It appears that the legal course at the police level has been designed to be slow and selective and overly deferential to the main accused person.
But that alone is not enough to tilt the scales for or against the accused, who is equally entitled to a ‘fair trial’. However, the journey of the rule of law is expected to continue without impediment; that is why the Bench in the Lalita Kumari case relied on the reason of keeping an efficient check on police powers and having the measure of ‘judicial oversight’ of the magistrate, the idea being to obligate the jurisdiction Magistrate to follow up on each of the FIRs. Such judicial intervention in investigation may arise from an application by the complainant directly under Section 156(3) of the Cr.P.C. or on a writ petition before the High Court. In addition, the appellate courts (High Courts and the Supreme Court of India) enjoy powers to take suo motu cognisance and call for an action taken report or direct the lower court to monitor the investigation.
The Supreme Court, in Sakiri Vasu vs State of U.P. (2008), has already imbued the magistracy with implied/inherent powers to monitor an investigation in the event of any abuse of powers. Sadly, in the case before us, the survivors have, by and large, had a raw deal. Neither the Delhi police nor the judiciary appear to have considered it worthwhile to stem the rot. They have been protesting in the open — at the site and then on the streets of Delhi — for months now. But administrative relief and judicial vindication seem distant. For the political dispensation, the ‘delay’ may be part of a ‘smart’ strategy to let the complaints lapse with time, even as it is convenient to blame the ‘failing colonial model’ of the rule of law.
But for all those who have a greater stake in upholding the basic ideas of the rule of law and ensuring fidelity to constitutional justice, the approach ought to be different. The need is to stand up and resort to course correction to save the soul of the rule of law. We are not alone in such a fight to save the rule of law, as in many other democracies across the world, the rule of law confronts similar threats. This appears to be why the Stockholm Criminology Symposium (June 2023), focused on the theme of ‘principled and equitable law enforcement’.
B.B. Pande is a former professor of law at Delhi University
