The public prosecutor in the Park Street case had argued for a lesser sentence for three of the convicted, even as two prime accused are absconding. Should rape laws be modified as per the role of the guilty?
By Sajeda Momin
The high-profile, controversial Park Street rape case has ended in a conviction of the three culprits who were rotting in a Kolkata jail for the last three years and ten months. But rather than finding closure, it has raised numerous questions of law.
Should the accomplices of rape receive the same punishment as the actual perpetrators of the crime? Is the role of the public prosecutor to simply get the harshest punishment possible for the convicts? Should the public prosecutor have an opinion of his own or is he simply the voice of the police?
From the time that the rape victim walked into the Park Street police station in February 2012 to complain that she had been brutally assaulted in a Honda City and then thrown out of the moving car half-dead, the case has been mired in controversy.
First, Chief Minister Mamata Banerjee dismissed it as a sajano ghatana (fabricated incident), claiming it was a trumped-up charge by the opposition to discredit her government. But when the victim refused to be silenced and went to the media with gory details of her ordeal, her personal life was torn apart with questions raised about her morals and character. What was a mother of two grown-up daughters doing drinking alone in a five-star hotel, late into the night on Valentine’s Day?
How could she accept a lift from a complete stranger whom she had just met at the bar? To top it all, a Trinamool Congress MP, Kakoli Ghosh Dastidar dismissed the rape as a “sex deal gone wrong” virtually calling her a prostitute.
When, in an unprecedented act, the rape victim decided to waive her right to anonymity and made her identity public, she was again criticized for “ruining the sanctity of the courtroom”. “The trial is being held in camera, but when the courtroom doors open, entire families of the accused are outside. They are clicking pictures of me on their phones. What about my sanctity?” Suzette Jordan, then 37, had asked.
Roy wanted a distinction made in punishment according to the actual crime committed. She argued that each of the three convicted had played specific roles in the crime.
Fed up of living as a victim for 15 months, the gutsy Suzette decided she would live life on her own terms and not those defined by her assaulters. “I was brutally raped, but I am alive and I want to fight, but not from behind a mask or screen, or a blurred image. I am not a victim but a survivor,” Suzette had said. Sadly, Suzette lost her struggle when she suddenly died of meningoencephalitis at a Kolkata hospital in March 2015.
The case continued despite her death as she had completed her deposition before the trial court and on December 10, 2015, three of her tormentors were convicted by the additional district sessions judge of Fast Track Court II. However, yet another controversy engulfed the case. Sarbani Roy, the special public prosecutor, in her last argument before the punishment was pronounced, deviated from the norm and did not ask for life imprisonment for the convicts on the grounds that they were not the prime accused.
The state government which had come in for a lot of flak for its “unsympathetic” role in the initial days of the case went into an overdrive. Not wanting to look as if it was trying to let the criminals off lightly, the government removed Roy from the state panel of lawyers and distanced itself from her comments in the courtroom.
“Special public prosecutor Sarbani Roy was not instructed by the state to make such a statement. It is her personal opinion. It is for the judge to weigh the merit of a case and pass the judgment, the PP has no jurisdiction in this regard. Her comments are undesirable,” said Chandrima Bhattacharya, West Bengal law minister.
Based on Suzette’s complaint Sumit Bajaj, Ruman Khan and Naser Khan were charged with gang rape, conspiracy, intimidation and assault, while the two prime accused have been absconding and the police have failed to find them. According to the law, the section of gang rape can be slapped on any person who is present at a spot where a woman is being raped and does not protest the crime. All the three convicts were present in the car when Suzette was being raped. However, they have not been accused of actually raping her.
NOT DIRECTLY INVOLVED
Roy’s argument is very clear. “These three are not the prime accused. They were not directly involved in the commission of the offence,” she argued. While Roy did not ask for the minimum punishment, she felt they should be punished according to the crime they had committed. Therefore, she did not ask for the maximum penalty.
It is the norm in India that the police usually tries to collect as much evidence as possible and the prosecution appeals for the highest punishment. “I said there is no need for higher punishment, by which I meant life imprisonment. I meant the sentence could have been anything between 10 years and life imprisonment,” said Roy, known to be a tough and honest lawyer. Judge Chiranjib Bhattacharya sentenced all three convicts to 10 years rigorous imprisonment, calling the crime “an anger rape” as opposed to “wanting to quench their lust”.
However, there are many who believe that it is the law which has made the distinction, whereby in the new definition of gang rape, everyone is equally responsible. “If the prime accused who is currently absconding is caught, the public prosecutor will seek maximum punishment. Then why seek a lesser punishment for the others when everyone is equally responsible for the gang rape according to the law,” said Amit Sen, former dean of law at Calcutta University.
Roy, 69, who was inducted into the state government’s panel of lawyers in 2011, however disagrees and would like to make a distinction in punishment according to the actual crime committed. She argued that each of the three convicted had played specific roles in the crime which is why separate charges were pressed against them.
She also points out that there is a difference in the role of a public prosecutor from that of other lawyers, especially a defence lawyer. “Unlike a defence lawyer whose sole responsibility is to defend his client, the prime responsibility of a public prosecutor is to uphold justice,” said Roy. “According to Supreme Court guidelines, a public prosecutor not only has to seek justice for the victim but also ensure that the accused do not face any injustice,” she added.
It is on this basis that Roy did not seek a maximum penalty for these three convicts as that would have been unfair to them.
According to the law, the section of gang rape can be slapped on any person who is present where a woman is being raped and does not protest. All the three
convicts were present when Suzette was being raped, though they
didn’t actually rape her.
Roy, who hails from Assam and has been practicing law since 1972 after getting her law degree from Calcutta University in 1970, admits that she has never had any confrontation with the state government in the past, but also adds that “there is no law that binds a special public prosecutor to consult the government or any minister before making a submission in the court”.
According to Roy, many of her colleagues and officers of Kolkata Police appreciated her stand and congratulated her for being just to her profession. While Roy has been sacked, she refuses to back down. Her actions have opened a Pandora’s Box on rape laws and their punishment. Instead of knee-jerk reactions, each case needs to be looked at independently and the questions raised be looked at seriously so that answers are found.