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India: Bengal’s ’shalishi adalats’ - a law on to themselves similar to kangaroo courts in name caste or ’community’

28 January 2014

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The Hindu, 25 January 2014

Editorial: Stamp out kangaroo courts

The incident in Subalpur village in West Bengal’s Birbhum district, in which a 20-year-old tribal woman was gang-raped by a dozen men as punishment for alleged immoral conduct, is shocking in its unimaginable brutality and points to a larger malaise. The order by a kangaroo court led by a village headman is proof that a section of rural India is outside the pale of the country’s constitutional values and judicial system. Ill-informed men with medieval social attitudes and patriarchal prejudices are allowed to adjudicate on the conduct and morality of women and pass unconscionable forms of punishment, such as social ostracism, payment of arbitrary fines and, as in this case, sexual violence in lieu of monetary penalty. The Supreme Court and the National Commission for Women have taken suo motu cognisance of the incident, which has caused widespread outrage and revulsion. The West Bengal government, which has been sharply criticised in recent times for callousness and insensitivity towards crimes against women, has seen to it that the village headman and the 12 men who raped the hapless woman for a whole night have been arrested. And Chief Minister Mamata Banerjee, upset that the police did not seek custody of the accused for questioning and allowed them to be sent to prison directly, has ordered the suspension of the Superintendent of Police. It is disturbing that the entire village, including women, backed the kangaroo court by whose verdict the man could get away with a fine, but the woman was punished for not having the means to do so.

Outposts of feudalism still thrive in vast swathes of rural India, ranging from khap panchayats in the north to caste-based gatherings of village elders in the south. In 2011, the Supreme Court wanted illegal khap panchayats that encourage ‘honour killings’ or other institutionalised atrocities to be stamped out ruthlessly. Over a year has elapsed since the country voiced its anger against sexual violence targeted at women and seemed to take a collective vow to ensure the protection of all women. The penal law on sexual violence and harassment has been strengthened significantly since then. Yet, India’s cities and villages continue to be unsafe for women. The locus of sexual violence is everywhere: in public spaces and private homes, under the cloak of darkness and in the open, and perpetrated by well-acquainted persons as also as by strangers. The Birbhum incident is a chilling reminder that legal processes, security measures and stringent laws are not enough. Social attitudes need to change, reflecting liberal and humane values, if the country is to ensure gender equality and protection for all its women.

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The Times of India, January 26, 2014

The injustice of justice

by Jaideep Mazumdar

When a ’court’ in West Bengal ordered the gang-rape of a young woman this week for the ’crime’ of having a liaison with a married man from another community and village, it, obviously and understandably, sent shock-waves across the country. But what few know is that such kangaroo courts, known as ’shalishi adalats’, operate in vast swathes of Bengal, especially its rural hinterland, and have even been known to hand out death sentences. And rarely have those handing down such Talibanesque diktats been brought before the law.

Shalishi, a Bengali word of Persian origin, means mediation or arbitration. But what actually happens at these kangaroo courts is a mockery of mediation. Though they are supposed to handle and resolve only petty civil disputes, these adalats pass judgement, and more often than not very flawed and biased ones, on a range of crimes ranging from thefts and extra-marital affairs to rape. In most rape cases, the accused, especially if they come from relatively affluent or influential families, get away with just small fines.

Those who defy diktats have to pay a heavy price. Take the case of Munirul Haque of Betla village in East Midnapore district. A ’shalishi adalat’ presided over by Nizamuddin Alam, a local Trinamool Congress leader, asked Munirul to pay a fine of Rs 25,000 for allegedly making a pass at the daughter a trader in the village in September last year. Munirul, a poor farm labourer, said that he could not pay such a huge amount and pleaded for a waiver of the fine. Nizamuddin, a cousin of the trader, then decreed that in lieu of the fine, Munirul would have to give his 16-year-old daughter in marriage to a 46-year-old man who already had two wives. Munirul had to agree because he had no alternative.

These courts are whimsical in dishing out sentences. Adultery, for instance, could attract anything from a death sentence to a fine of a few thousand rupees, while a petty thief could expect to be fined, flogged in public or even banished from the village. "It all depends on the financial and social status of the accused, the mood of the elders of the village who are members of the shalishi court and their relationship with the accused or his or her family. If a woman from a well-to-do and influential household is accused of an extra-marital relationship, chances are she would be let off with a warning and a fine. But the same ’offence’ by a woman of a poor family would attract a much stiffer sentence, like being tonsured or paraded naked around the village. If a person accused of, say, drunkenness, belongs to a family that’s aligned with an opposition party, the sentence would undoubtedly be more brutal. "A lot of factors come into play here, but it is always those without political and financial clout who are subjected to the most ruthless sentences by these courts," says Debanjan Mishra, a teacher of sociology at Calcutta University who has been documenting cases adjudged by shalishi courts over the past couple of years.

The death sentences imposed by the ’shalishi adalats’ are usually executed in utmost secrecy and the whole village takes an ’omerta’ or oath of silence, thus foiling any effort by the law enforcement machinery to bring members of such kangaroo courts to justice. Even the bodies of the victims remain untraceable. One of the known cases is that of Sheikh Sariul, 29, a van-rickshaw operator of Saramari village of Ratua block in Malda district. Sariul was accused of having an illicit affair with the wife of an affluent farmer of the same village and was summoned to a ’shalishi adalat’ on August 27, 2010. The ’adalat’, packed with members of the farmer’s clan, sentenced Sariul to death. He was beaten to death and his body dumped in the septic tank of the farmer’s house. An FIR was lodged and 10 persons arrested, but they are out on bail and the investigations haven’t progressed due to lack of evidence. The accused hold that Sariul fled the village just prior to appearing before the ’adalat’ and fell into the septic tank while fleeing. The entire village, save for Sariul’s family, have stuck to this version and so the police have not been able to make any headway.

In most cases, the ’shalishi adalats’ are patronized by politicians and political parties. This is more so in the backward tribal belt where the village headmen and his honchos pass diktats to vote for a particular political party and are, thus, sought after by the parties who do not want to upset or anger them in any way. Very often, the ’shalishi adalats’ are used by the party in power to settle political scores over rivals. This particular practice started during the Left Front rule in Bengal. Countless supporters, activists and local level leaders of the Congress and the Trinamool Congress were fined, ostracized and driven out of their villages by these kangaroo courts for real or imagined offences. The Trinamool Congress, after coming to power in Bengal in mid-2011, has not shied away from using these kangaroo courts to subjugate and often snuff out its political rivals.

Nothing legal about it

In 2004, the Left Front government attempted to give a legal sanction to ’shalishi adalats’ through the West Bengal Block Level Pre-Litigation Conciliation Board Bill (which came to be better known as the Shalishi Bill). Under this Bill, ’Conciliation Boards’ were to be set up in every administrative block for adjudication of minor disputes. But the opposition Congress and Trinamool Congress cried foul and launched a series of agitations against the bill, and the government was ultimately forced to abandon its plans to introduce the Bill in the state assembly. The opposition parties’ contention was that the Left (primarily the CPM) would appoint only their own party men to the ’Conciliation Boards’ and the Marxists would thus strengthen their grip on power in the rural areas. Nonetheless, the ’shalishi adalats’ thrive and now, they serve to strengthen the grip of the Trinamool Congress on rural Bengal.

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Daily News and Analysis, January 25, 2014

Kangaroo Courts must go!

by Anshul Kumar Pandey

In West Bengal’s Birbhum district, a village council ordered a 20 year old girl to be gang raped in front of the entire village on the accusation that she was having an affair with a married man from another village. The accusation wasn’t proved, but the girl had “visited Delhi and spoke Hindi” and that was enough for the village council to order such brutality on her.

Such incidents are not new. In Mushahari district in Bihar, a rape victim was offered Rs. 10,000 as compensation by the village council and her family was threatened not to report the incidence to anyone. Another famous case is that of Siya Dulari of Bhawanipur, who was burnt to death just because her son eloped with a girl belonging to an upper caste family. The incidence sparked widespread condemnation and was later the inspiration for a Bollywood film called ‘Lajja‘.

One can go on with a list of such incidences which were ordered by village councils and dutifully carried out without a hint of shame or remorse. These village councils do not exercise any power to mete out criminal punishment under any law and yet, there are frequent cases in which these councils not only order gang rapes, illegal confinements and social boycotts, but go to the extent of ordering killings, a phenomena which has come to be known as ‘honor killings’.

The Supreme Court has time and again delivered judgments against such village councils, asking them to be stamped out from the country. In Lata Singh v. State of UP and Another (2006), the apex court observed:

We sometimes hear of ‘honour’ killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism. The police at all the concerned places should ensure that neither the petitioner nor her husband nor any relatives of the petitioner’s husband are harassed or threatened nor any acts of violence are committed against them. If anybody is found doing so, he should be proceeded against sternly in accordance with law, by the authorities concerned.

In Fiaz Ahmed Ahanger and Ors. V. State of J& K (2009), the court held that:

“In such cases of inter-caste or inter religion marriage the Court has only to be satisfied about two things:

(1) That the girl is above 18 yeas of age, in which case, the law regards her as a major vide Section 3 of the Indian Majority Act, 1875. A major is deemed by the law to know what is in his or her welfare.

(2) The wish of the girl.

In the circumstances, we direct that nobody will harass, threaten or commit any acts of violence or other unlawful act on the petitioner, Chanchali Devi/Mehvesh Anjum and the petitioner’ family members and they shall not be arrested till further orders in connection with the case in question. If they feel insecure, they can apply to the police and, in such event, the police shall grant protection to them.”

In Arumugam Servai v. State of Tamil Nadu (2011), the apex court ruled that:

We have in recent years heard of ‘Khap Panchayats’ (known as katta panchayats in Tamil Nadu) which often decree or encourage honour killings or other atrocities in an institutionalized way on boys and girls of different castes and religion, who wish to get married or have been married, or interfere with the personal lives of people. We are of the opinion that this is wholly illegal and has to be ruthlessly stamped out. As already stated in Lata Singh’s case (supra), there is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of personal lives of people committed by brutal, feudal minded persons deserve harsh punishment. Only in this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal.

In the Manoj Babli case (2011), the Punjab and Haryana High Court remarked:

"Even in the 21st century such a shameful act of hollow honor killing is perpetrated in our society. We feel that it is really a slur on the fine fabric of the Indian society. Abduction is really cruel and that too murder of the abductees is barbaric."

In addition to constituting a crime, any political justification of the acts of these village councils cannot stand the test of law as their actions are violative of Article 21 of the constitution, which guarantees the fundamental right of life and liberty to everyone in the country.

Failure of the state authorities to curb such crimes which are primarily directed against women also runs afoul of India’s international commitments as India is a party to Convention on the Elimination of All Forms of Discrimination against Women (1981) and the International Covenant on Civil and Political Rights.

The Law Commission of India in its 242nd report titled “Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework” has suggested a draft bill to penalize these honor killings and other crimes committed in the name of preserving one’s honor. The proposed bill prescribes strict punishment for unlawful assemblies of the panchayats, objectionable behavior towards any couple, criminal intimidation etc. and empowers the district magistrate or the SDM to take preventive measures against the same (salient features here).

It is high time that the state governments took note of the rising incidences of crimes committed on the orders of these Kangaroo courts and ruthlessly stamped them out to rid the society of their evil influence. The sooner such stringent measures are taken, the better it will be.


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