Connect with us

HW Community

Saving Gudiya – Laws, Rights of Victim, Role of Govt, Judiciary, and Society

Published

on

Saving Gudiya- Rights of rape victim and laws

It is seen in numerous cases of rape/sexual assaults, which we come across as lawyers, that victims experience confusion and uncertainty about what to do, what to expect and the logic behind each of the steps in the pre-trial as well as the trial stages. The lack of legal orientation, guidance creates enormous anxiety, leading to undue exploitation for gaining elementary legal information. Simple things as, providing FIR on time, providing companion during deposition or providing compensation or, free medical treatment are not made available.

To counter this exploitation, in this series of articles (Part 1,2 & 3), the endeavour of the author will be to inform in brief, the law regarding rape, how it has evolved through judicial decision, legislative enactments/ amendments, and executive instructions.

The articles will focus on the special care which needs to be taken with respect to the rights of the victims, by the Authorities and the Society.

The series of articles will also discuss different guidelines for sensitizing those who will come in contact with the victim. The problems faced by the victims (both pre and post-trial) and solutions to these problems also will be attempted.

Part -1 –
Victim, FIR & Medical Examination

The Victim

Rape victims deserve more from the legal system and society than just a prosecution. Rape causes a tidal wave effect on a victim’s life. The profound emotional, physical, economic, and social harm to the victim affects a broad range of life activities. The response to rape should be to

  • prevent the acute trauma of rape from triggering a long-term, downward economic and social spiral for the victim. and
  • to preserve the integrity of the victim’s privacy and social relations.

28 studies of women and girls aged 14 and older who had had non-consensual sex obtained through force, threat etc found that 60% of these victims didn’t acknowledge that they had been raped.

The major reason for this is “fear of stigma” and also “the body’s automatic response to trauma”. The victim needs time to acknowledge what’s happened to them.

Many Centres which are made for the survivors note that majority of the cases are reported much after the actual assault took place. Studies show that many victims, dropped the case, to protect their privacy, and ensure their emotional and physical safety.

The job of the responsible society is to support the victim and be sensitive to her mental and emotional needs throughout various stages of recovery.

FIR

The author wishes to start with giving a brief outline of settled law regarding FIR and Medical Examination which are the first steps after the assault. This is a critical stage where the victim is vulnerable, traumatized, stigmatized, and in need of immediate support. This topic is made the starting point, having in mind the alleged Shimla rape case and its present status.

The different processes in the pre-trial stage include the registration of the FIR,  the medical examination, arrest, S.164 statement to the Magistrate and cognizance, all must proceed promptly one after the other.

Registering an FIR is the first step in the process of setting the criminal justice machinery into motion officially. Without an FIR, criminal redress cannot be obtained. This is done under S.154, of the Criminal Procedure Code of India.

The Law, Know Your Rights;

  1.  It is mandatory for a police officer to file the FIR, failing which he may be punished with imprisonment for a period of 2 years.
  2. Police cannot blame the victim for her condition,
  3. Police cannot encourage the victim to reconsider or compromise the case.
  4.  In case the complainant approaches a police station within whose jurisdiction the offence does not fall, the police station can still not refuse to register the FIR. As per Advisory No. 15011/35/2013-SC/ST-W, issued by the Ministry of Home Affairs, they must take down the complaint as a ‘Zero FIR’, and then forward it to the relevant police station. The complainant is also entitled to a free copy of the FIR.
  5. FIR, cannot,  in any condition be prompted by the police.
  6. Victims have to be provided with a copy of the FIR, it is her statutory right.
  7. Police have to record the Experience of victims on getting her FIR registered, the police’s dealing with her can be probed into by the courts at the appropriate stage
  8. Police have the duty of Informing the victim, the procedure and her rights, at every stage and in all her dealings with them.

Medical Examination

The medical examination follows the registration of the FIR. The purpose of the examination under the amended law is to

  1. Provide first aid to the victim,
  2. Psychological counselling to cope with the trauma associated with the assault,
  3. Recording bodily injuries and condition for evidentiary purposes.

The Guidelines and Protocols for Medico-Legal care for victims of sexual violence, provide comprehensive instructions for the medical practitioner, family and the justice system.

A rapport must be established between Health professionals dealing with the case and the victim. Further, the medical examination must also include psychological counselling to help her cope with the aftermath of the assault, including in relation to the social and cultural notions of stigma and shame, within her family or community.

The Law, Know your Rights;

  1. An enabling atmosphere should be created and trust be established and the victim should be informed of all available resources, referrals, legal rights.
  2. The first step is to obtain informed consent/refusal from the victim for every step of medical examination and provide first aid
  3. Absence of signs of struggle DOES NOT signify consent.
  4. In cases of adolescents, age also needs to be verified.
  5. Whether drug/alcohol was administered has to be tested.
  6. If the victim is female then female doctors are to be preferred. For a transgender, the choice should be given to the victim.
  7. Police are not allowed in the examination room, however, a relative can be present if the victim so requests.
  8. Medical treatment is the first priority. A special room must be made available to maintain privacy. The hospital should not insist on admission until there is a requirement of observation/treatment.
  9. All services to victims should be free of cost, medicines prescribed must be available in the hospital, or the victim must be compensated.
  10. A copy of all documentation must be provided free of cost.
  11. While performing a forensic examination a medical opinion has to be formed on whether a sexual act was attempted or completed, whether it was recent and any harm has been caused to the victim’s body.
  12. If the victim comes to the hospital on their own without filing a report, it is the duty of the doctors to inform the police and provide medical treatment.
  13. A per-vaginum test or the 2- finger test should NOT be carried out and the status of the hymen is irrelevant to the factum of the sexual act. (More on this in subsequent articles)
  14. A urine pregnancy test has to be performed and blood has to be collected for HIV status and other tests etc. The type of evidence would change depending upon: nature of sexual violence, time lapsed between the incident and the medical examination, whether the victim has bathed/washed.
  15. Testing should be done for sexually transmitted infections.
  16. Emergency contraception may also be given.
  17. Victims should be informed of follow-up services and all follow-ups should be documented.
  18. Psycho-social care must be ensured and first line support be offered.
  19. If the victim reports with a pregnancy resulting from an assault she is to be given the option of abortion and protocols of MTP are to be followed.
  20. Stages of the examination should be explained.
  21. To address the victim’s emotional wellbeing crisis counselling must be encouraged. Suicidal tendencies must be assessed. Friends and family should be involved in the healing process of a victim. Reactions and the range of feelings which are common after a traumatic experience must be explained.
  22. Safety assessment must be done, and if the survivor is unsafe alternate arrangements to stay must be offered. If not, a safety plan must be made.

Health professionals should engage with family and friends to discuss ways of promoting a survivor’s well-being.

The medical examiner has to pack, seal and sign over the evidence to the police. One copy of all the documents has to be given to the victim. The hospital must ensure a designated staff.

Sexual assault victims should be understood as suffering from a myriad of brutal consequences that impact their civil wellbeing and they are at risk of re-victimization by the criminal justice process. Lawyers scholars, media must step forward and take up their struggle, and support them by sensitizing all relevant actors in society.

The next part will deal with the Legislative reforms, Court cases, and other stages of the trial.

Deven Khanna is a Lawyer practising at High Court of Himachal Pradesh, other H.P Courts/Tribunals and the Supreme Court of India, he is an alumnus of a National Law School.

HW Community

Enraged Protesters Barge Into MD HRTC Office Over Poor Bus Services, Leaves Staff Speechless

Published

on

By

Protest at MD HRTC Office

Shimla– After the tragic Banjar bus accident that killed 46 people and left about 37 injured and the school bus accident in Shimla‘s Khalini in which two students and the driver were killed, the Himachal Pradesh Government may have shown some strictness towards overloading, but it forgot to ensure delivery of additional services to facilitate commuters. Protests, especially from the student community are frequently being reported in newspapers and media portals.

Surprisingly, this strictness is limited to Himachal Pradesh Road Corporation buses, while private buses continue to ply overloaded. The public in rural areas is suffering a lot because of this faulty policy of the government. The people complain that even if no one is standing in buses, HRTC conductor or police do not let them board these buses.  The situation has worsened to a level that people are now feeling harassed due to inefficiency and lack of vision of the state government.

The locals from Shimla district had submitted a memorandum regarding the shortage of staff in HRTC and problem they are facing due to suspension of routes without any prior notice to the government through Managing Director, HRTC a couple of days ago. Shockingly, they were not given any response.

Eventually, on Thursday, aggrieved by and enraged over an acute shortage of bus services and harassment in the name of overloading, villagers from various parts of Shimla district gathered at the Old ISBT of Shimla to meet the Managing Director, HRTC. Their anger was fueled as soon as they found that the MD was not present in his office. Led by senior leaders of Communist Party of India (Marxist) including former Mayor of Shimla Town, Sanjay Chauhan and Rakesh Singha, a sitting MLA from Theog Constituency, people sat down outside MD ‘s office and staged an aggressive protest.

Watch How Protesting Locals Left HRTC Staff Speechless


The villagers alleged that while several HRTC routes were suspended in various parts of the district without any prior notice, private buses are encashing on the opportunity by overloading, to which Police is showing a blind eye. The villagers also alleged that in the name of overloading, the passengers are forced out of HRTC buses without provision of adequate services. At the same time, they alleged, the government is allowing overloading in private buses. 

Villagers complained that their vegetable produce is rotting either because the bus routes to their areas were suspended without information or the frequency of HRTC buses plying to the area was reduced to twice or thrice a week. In addition, the problem of not allowing them to load their produce in busses beacuse of the overloading gimmick was just adding to their woes.

Villagers also alleged that school students in rural areas are compelled to miss their classes, even exams due to lack of bus services.

“The number of girl students who have left school and are sitting at home because of the paucity of bus services is in thousands. Their schools are located at a distance of two to three hours, and without bus services, it is not possible for them to travel to schools and back home from schools. These students are dragged out of HRTC buses in the name of overloading but no additional service is provided to them,”

said one of the locals.  

“Biometrics are installed at offices for attendance nowadays. The employees are not able to reach office on time and their attendance is suffering,

said another local present among protestors.   

Later, when the Managing Director arrived at his office and met the protestors, he admitted that HRTC is facing a shortage of drivers and conductors which is adversely affecting bus services in several routes.  The MD agreed to the demand of restoring services on routes where only single buses were plying.

The protestors ended their protest only after the MD assured them to take effective steps to curb the shortage of HRTC bus service. The protestors warned the MD of more aggressive protests if adequate services are not delivered within a week.

Continue Reading

HW Community

Strict Vigil on Unauthorized Parking, No Parking in Areas Children Board, Deboard School Buses: CM

Published

on

Jairam thakur's statement on school bus accident

Shimla-After witnessing outrage among people over the accident of school bus in Shimla district’s Khalini that devoured three persons including two students and the driver and left five others injured, the Chief Minister Jairam Thakur called a meeting. Apparently, due to lapses on its part that played a major role in causing the accident, the State government came under heavy pressure. The Chief Minister had to make some announcements like it was done after the Nurpur school bus accident that had killed 24 children and three others in 2018 and the recent Banjar bus accident that killed 46 passengers.

In today’s announcement, the government assured that in Shimla town, parking will be allowed on one side of the road with yellow line and unauthorized parking will be dealt with strictly.
As done in such cases, a magisterial probe was also ordered.

He said signboards regarding ‘Authorized Parking Zone’ as well as ‘No Parking Zone’ would be erected in the town. It’s pertinent to mention that erection of signboards doesn’t work until these rules are implemented. In Shimla city, vehicles can be seen parked right in front of no parking signboards.

Further, he added that the work on three big parking slots in the town would be expedited whereas district administration and Municipal Corporation, Shimla would identify locations particularly in residential areas where small parking could be developed. This would not only ensure proper parking place for the commuters but also help in decongesting the city roads, he added.

District administration and Municipal Corporation were directed to identify parking areas with yellow line alongside the roads and sites where small parking slots could be developed by 10th July, this year. He said that the state government would also explore various aspects to allow private parking by individuals within the setbacks so that ample parking space could be developed.

He said that all the government offices should ensure that they have their own parking with sufficient space so that their vehicles could be accommodated thereby avoiding decongestion of main roads. He said that parking within a radius of 50 meters would not be allowed in such places where school children embark and disembark their school buses.

A massive Information, Education and Communication (IEC) activities would be carried out in the state to sensitize the people regarding road safety, he said. The narrow roads would be identified and steps would be taken for widening the same, he assured.

It was informed in the meeting that over 1,65,000 vehicles are plying daily in the Shimla town. Therefore it is the need of the hour that alternative roads are constructed for the convenience of the people.

The Chief Minister said that rupees five lakh are being provided to the next of kin of the deceased besides free medical treatment to the injured.

Like he had assured after the Nurpur bus accident, the Chief Minister again said that the condition of transport vehicles would be ensured properly and laxity in this regard would not be tolerated at any cost. All the school buses would be regularly monitored and school management would be sensitized about the safety guidelines.

Continue Reading

HW Community

Shimla School Bus Accident Again Exposes Serious Lapses on Govt’s Part

Published

on

Causes of Shimla School Bus Accident

Shimla-After two weeks of tragic accidents of the overloaded private bus in Banjar of Kullu district in which 46 people had died and 37 were injured, the accident of the school bus in Jhinjhari of Shimla district has yet again exposed lapses on the part of the district administration as well as the State government.

Serious questions are being raised on the working of the government and its attitude toward the safety of passengers in public and private transport. The biggest shocker was the statement of the Transport Minister he had given prior to any investigation in which he had tried to protect the owner of the private bus.

This time, three persons including two students and the driver were killed. The accident occured when the bus fell into a 500 feet gorge while the driver tried to drive through a congested spot on the road. The Bus driver, Naresh Thakur, died on the spot. Two students of the Convent of Jesus and Mary School — Manya and Mehul, both aged between 13-15 years — succumbed to their injuries later on.

The primary reason given by the locals for the accident is congestion created on the already narrow road by wrongly parked vehicles and lack of roadside safety measures like parapets or crash-barriers. In fact, the matter related to the absence of roadside safety measures had been popping up after several fatal road accidents. However, neither the previous government nor the current government considered it a priority.

If the government had attended to these demands and, at least, installed crash-barriers, this accident could have been prevented, the locals exerted.

A wave of rage erupted among the locals, who even gheraoed the Education Minister who had arrived to visit the spot of the accident. He faced severe backlash and had to flee the scene after facing enraged locals.

The locals also smashed windows of the cars parked along the roadside. Following it, they staged a protest near Khalini and blocked the Khalini-Jhinjhari road. Reportedly, media persons, too, faced protest from the locals, who pelted stones at them.

Watch Video

At the same time, another shocking fact has come into the light. The HRTC bus was in a dilapidated state and its insurance had also expired. As per the former Mayor of Shimla town, Sanjay Chauhan, the bus was introduced in 2008 under JNNURM and was supposed to be decommissioned about three years ago. The bus faced frequent mechanical failures, the locals alleged. The bus driver had complained a fault with the steering a couple of weeks ago.

It’s worth a reminder that after coming into power, despite a debt of Rs 49,000 crore, the state government had bought several sport utility vehicles (SUV) worth over 30 lakh each. However, public transport is left on the mercy of poorly maintained, old buses.

The Akhil Bharatiya Janwadi Mahila Samiti, in a press note released today, alleged that the locals had brought the matter of road congestion due to wrong parking to the attention of district administration about three years ago. It said, the administration was told that the road is vulnerable to accidents, and demand for installation of parapets/crash-barriers was also raised.

The locals had even undertaken a week-long campaign against roadside parking. Signatures of a large number of locals were taken to highlight the matter. The road was declared as a ‘no parking zone’ after this campaign. But this campaign could not deter people from roadside parking for more than a couple of weeks. The administration also neglected the issue and showed complete laxity on its part.

If the administration had listened to the people, the lives lost today could have been easily saved.

The locals also alleged that the administration never bothered to take in to account the rising population in the area and requirement for parking space.

Sitting MLA, Theog, Rakesh Singha, also termed it as a failure of state government. He said that the real cause of each accident needs to be ascertained but the fact remains the state government has failed to prevent repeated accidents of buses in Himachal Pradesh.

“The major cause of accidents is bad conditions of roads, worn out vehicles having crossed seven lakhs kilometers mileage, failure to provide sufficient workshop staff to undertake timely maintenance and repair of vehicles, massive shortage of drivers and conductors leading to stress conditions of the available staff to carry out the operation of the regular bus route services,”

Singha said.

While Mahila Samiti has demanded a compensation of not less than Rs 20 lakh to the families of the three victims who died in the accident, Sigha has also asked the government to pay compensation beyond the set paraments.

“Loss of life cannot be compensated in terms of money but the state must provide relief beyond the parameters set by it and rupees ten lacks must be the minimum that is expected of any elected government,”

he said.

The Student-Parents forum, that has been demanding implementation of various rules in private schools including the deployment of their own school buses, staged an aggressive protest at the Directorate of the Higher Education. The forum said that it is mandatory rule for every CBSE affiliated school to provide students with its own school buses, which is hardly being followed. The angry members of the forum entered the office of the Director, which was followed by heated arguments. The forum asked why the Directorate has failed to implement directions of the State High Court passed in April 2018 regarding the safety of school children.
Student-Parent forum at HP Education Directorate

Meanwhile, Chief Minister Jairam Thakur repeated the usual statement assuring strict action against those who were responsible for the accident. However, now the people appear to have fed up with hollow promises and actions that are taken only in papers.

The opposition Congress, who had been a failure itself (in matters related to road safety) during its tenure, also opened an attack on the current BJP government and demanded the resignation of the Transport Minister.

The continued slumber of the government suggests that loss of lives hardly rings a bell for its officials. Their actions and remedies remain confined to documents and magisterial probes, which are not made public, like the Nurpur school bus accident and the one reported in Kullu’s Banjar.

If the government is actually serious about road safety, then it should undertake an extensive campaign to ensure that all roads are protected by crash-barriers, speed regulators are made mandatory for the public and private buses, old, dilapidated buses are replaced with new once, and black spots are fixed as soon as possible.

Continue Reading

Trending