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Kolkata: “Consensual sex with a minor is rape according to the law,” Trinamool Congress (TMC) Lok Sabha MP Mahua Moitra said on Tuesday at Hanskhali, a small town just outside her Lok Sabha constituency, Krishnanagar, in Nadia district, during a visit to the family of the 14-year-old minor who was allegedly gang-raped on April 5 and hurriedly cremated thereafter as she bled to death. The son of a local TMC leader is the prime accused.
“The question of consent is being talked about. You know, even consensual sex with a minor is illegal, it is rape in the eyes of the law. That’s (the) most important (thing). And the [Protection of Children from Sexual Offences] is being applied here,” she said. POCSO is a special law to deal with cases of sexual assault on minors and has stronger provisions.
Moitra’s comments had legal backing, but they made headlines because the MP differed from statements made by her party’s leader, West Bengal chief minister Mamata Banerjee.
Speaking earlier on Monday, Banerjee said, “This was a (case of a) love affair. The family knew of it, the neighbours knew. If boys and girls fall in love, I cannot intervene. It’s not Uttar Pradesh, where you have Love Jihad issues.” She also hinted that the deceased was probably pregnant.
“Of course, no wrongs would be entertained,” the chief minister had said, adding that action had been taken and arrests made. “We are seeing no colours while making arrests,” she said. She proceeded, “The girl died on April 5 but the complaint was lodged on April 10. If there were doubts over her death, why wasn’t the complaint lodged right on that day?” If the body had been burnt, how would the police investigate, she had asked.
The chief minister’s remarks had triggered a controversy, as opposition parties and civil society groups dubbed her remarks as ‘insensitive’, ‘condemnable’ and ‘an attempt to influence the investigation’. Lodging complaints against influential persons often took longer than usual, rights activists argued.
The father of the victim, speaking to journalists, expressed shock at what the chief minister said. “How could she tell those things being the chief minister?” he asked, ruling out the possibility of his daughter being pregnant. Even the mother of the woman who was killed in the shocking 2012 gang-rape and murder in New Delhi told journalists that Banerjee did not deserve the post of chief minister if she made such remarks about a minor girl who had been the victim of sexual violence.
Initially, the rape-and-death made headlines because the prime accused is the son of an influential local leader of the state’s ruling party, the TMC. It also emerged that the police had lodged a first information report (FIR) only five days after the incident, when a local non-government organisation intervened. But Banerjee’s remarks helped it snowball into a controversy in the national media by Monday evening.
Moitra reached the locality in Hanskhali on Tuesday afternoon, sometime before Suvendu Adhikari, the leader of the opposition in the state assembly, was scheduled to visit. With Moitra’s remarks contradicting her party chief, some eyebrows were raised because the TMC does not encourage leaders to contradict Banerjee in public. Senior TMC leaders later claimed that Moitra went there under instructions from the chief minister herself.
A senior TMC leader, speaking on the condition of anonymity, told The Wire that Banerjee had “lost her cool” on Monday because the media was “dragging the party” into reportage of “every sort of crime” over the past few weeks. “She had no intention of protecting the culprits. However, sensing her comment intensifying the controversy, she asked Moitra to meet the family and assure them of free and fair investigation,” the leader said, adding that the MP’s visit was part of a ‘damage-control measure’.
Calcutta HC’s stinging observations
Nevertheless, by the time Moitra reached the place, Banerjee’s comments had already been cited before the Calcutta high court where two separate public interest litigations seeking a CBI investigation into the incident had been filed.
“…even the highest executive of the state is calling it to be an incident of ‘love affair’, hence, the people do not have faith that the state police machinery will carry out a fair investigation,” petitioners submitted before the court on Tuesday.
After hearing both sides, the division bench of Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj agreed, handing the investigation to the CBI. The bench ruled that “in order to have fair investigation in the matter and to instil confidence in the family members of the victim and also the residents of the locality and the state, the investigation should be carried out by the CBI instead of the local police.”
This was the last thing that the state government wanted – yet another CBI investigation into a case that should ideally have been dealt with by the state police. The CBI swung into action on Wednesday morning. They will have to submit a report before the court by the next date of the hearing, May 2.
Since February-end, different benches of the Calcutta high court have ordered CBI investigations into as many as seven cases pertaining to four incidents – two regarding teacher recruitment scams, two in connection with last month’s massacre in Rampurhat, and two in connection with the murder of a Congress councillor in Purulia district and the subsequent unnatural death of the eyewitness of the murder. The Hanskhali incident became the latest addition.
In all cases, the petitioners expressed a lack of trust in any investigation by state government agencies.
With respect to handing over the investigation into the rape and death of the minor in Hanskhali to the CBI, the court observed that the ‘investigation suffers from serious lapses on several important aspects’. The court added that it could “not lose sight of the fact that the accused is the son of a powerful leader of the ruling party and that there is material available in the case diary indicating that the family members of the victim have been threatened.”
The court noted that while the counsel for the state submitted that there was no death certificate because there was no crematorium in the village, the case diary showed that the victim was cremated in the Shyamnagar Atirpur Burning Ghat.
“The fact that there is no MLC (medico-legal case), no post-mortem report and no death certificate also creates a suspicion about an attempt to suppress the entire incident and to wipe out the evidence,” the judges wrote in the order, adding that the case diary further indicated it may well be a case of gang-rape.
Apart from Hanskhali, the incidents in Purulia and Birbhum too had the local police facing allegations of conniving with the perpetrators of crimes enjoying the ruling party’s patronage and helping them escape the long hands of the law.
Blow to expansion plans?
According to columnist Udayan Bandyopadhyay, who teaches political science at Bangabasi College in Kolkata, the Hanskhali incident does not serve as a good advertisement for a party which plans to expand outside the state.
“When the chief minister or other influential politicians make such remarks before the conclusion of an investigation, the people tend to lose hope for a free and fair probe. The government and the political leadership needs to strictly ensure they take no such action that can dilute the gravity of crimes,” he told The Wire.
Since returning to power with a massive mandate in May last year, the TMC is enjoying a nearly opposition-free political space, with by-elections showing more than two-thirds of the electorate from those localities voting for the ruling party. However, the recent series of developments highlighted an apparent nexus between the police and TMC leaders at the grassroots level and has visibly pushed the party on the back foot. This comes at a critical juncture, as TMC and Banerjee had been hoping to intensify their campaign against the Narendra Modi government over issues like fuel price hikes, inflation and heightened violence against minorities.