“Do you have people in [the] army who rape? It is an alleged gangrape in uniform – an aggravated form of crime.” These are the words of Justices Madan B. Lokur and Uday U. Lalit of the Supreme Court to Attorney General Mukul Rohatgi, who was defending the central government’s decision to shield army men accused of rape from facing prosecution.

These words are significant at a time when the Bharatiya Janata Party is trying to create a climate where even to suggest that armed forces personnel can rape results in being branded “anti-national”.

On April 18, 2017, the Supreme Court bench of Justices Lokur and Lalit was hearing arguments on the plea for a Special Investigation Team to probe three cases of alleged rape by the security forces in Manipur, where the accused have till now been shielded from prosecution by the Armed Forces Special Powers Act (AFSPA). These cases include one in which two soldiers allegedly raped a 13-year-old girl on October 4, 2003; the victim committed suicide soon after, having first narrated her ordeal to her mother and sister. Another one of the cases is the custodial torture and killing of Thangjam Manorama by Assam Rifles men in 2004.

Noting that the army had given its own men a clean chit in the first case and that the state government had refused to conduct its own probe, Lokur and Lalit asked the Manipur government, “Is there a tacit understanding between you (the state) and them (the army) that you won’t enter their area to conduct any sort of probe? Here is a 13-year-old girl who worked in a rubber farm. There was no allegation that she was an insurgent. Two people come and rape her. She narrates her ordeal to her mother and a sister and then commits suicide. Have you decided that let army come and rape anyone, what can we do?”

Noting that the cases were 15 years old, the Supreme Court nevertheless said that the delay was not an issue, “Bangladesh is still conducting prosecution and sentencing accused for the 1971 war crimes.”

The Supreme Court is making a very important point – that in democracies, the armed forces cannot be above the law, and that crimes committed during wars and armed conflict cannot be condoned. Sadly, in the dominant discourse shaped by the media in India, this basic democratic principle is often sacrificed. This is true not only of much of the media coverage of recent atrocity videos from Kashmir, but even in discussions over sexual violence.

Is the Supreme Court also a deshdrohi?

On February 27, 2017, Aaj Tak organised an audience-based panel discussion on violence by the ABVP (students’ wing of the BJP) at Ramjas College, specifically on the rape threats issued to Gurmehar Kaur. The audience comprised students of mass communication from a private institute and I figured among the guests on the TV channel’s panel, along with Sambit Patra, spokesperson of the BJP, and several others.

The manner in which the question of rape was treated on the show is a sign of our times.

Early on, in the first part of the show (6:44 onwards), Patra told the audience that the morning’s papers carried stories about how a seminar in a university had been cancelled because it planned to discuss ‘how the Indian army rapes women (Bhartiya army kis prakar mahilaon ka rape karti hai). He cited this as a fresh and shocking instance of attempted ‘anti-national’ speech on campuses. Patra was referring to an event at Ambedkar University Delhi by the Women Against Sexual Violence and State Repression to observe the 26th anniversary of the Kunan Poshpora rapes, when members of the 4 Rajputana Rifles regiment of the Indian army gangraped women from the villages of Kunan and Poshpora in Kashmir. Ambedkar University postponed the event, citing possible Ramjas-style violence and saying “the times are bad for the university as a place for free speech and free discussions and critical engagements in our society.” Several times on the show, Patra referred to me as ‘deshdrohi (anti-national)’ because “she says army men can rape”.

Note that the reference to rapes in the context of the army was introduced and sustained by Patra himself – as a means of deflecting the debate from the actual topic of the show, which was that of online rape threats to Kaur after she took on the ABVP. He repeatedly shouted long-drawn out slogans of Vande Mataram on the show as he did so, asking the audience to join. The anchor, Anjana Om Kashyap, did nothing to prevent Patra from deflecting the debate in this fashion, instead echoing him by asking, “Should there be debates on Kashmir, on whether the army rapes? (Kashmir par, army rape karti hai is par, behas honi chahiye?)”

At Patra’s instigation, one of the ABVP cadre demanded that I declare whether or not I considered Kashmir to be an integral part of India. Again, the anchor allowed a debate that was supposed to be about rape threats to be turned into a test of nationalism for a women’s rights activist, the show’s sole woman panelist. I replied, over the din of yells and jeers, “When Kashmir’s women or Manipur’s women speak of being raped and you brand them anti-national for so doing, are you considering them an integral part of India? By standing with those women, am I not showing a greater sense of affinity with them than you are?” I added that the Justice Verma Committee recommendations had acknowledged the reality of sexual violence against women by armed forces in conflict areas.

After the show, the ABVP cadre were trying to hustle the students out of the studio – but a group of women students resisted them and came up to me so say, “Have women in Kashmir and Manipur really faced rapes by the army? If that’s true, then what you say makes so much sense, it’s horrible to refuse them justice.” I asked them to read Do You Remember Kunan Poshpora?, a book by a group of young Kashmiri women about the ongoing struggle to make courts acknowledge and provide justice for the Kunan Poshpora rapes.

TV channels treated the December 2012 Delhi gangrape as their personal crusade for justice. But for many of the same channels, it is permissible to run shows that publicly pillory women’s rights activists for demanding justice in all cases of rape – including those in which the accused enjoy legal impunity because they belonged to India’s armed forces.

Will any TV channel conduct a debate in which women’s rights activists are allowed to ask Patra whether the Supreme Court judges are deshdrohi for acknowledging that there are credible complaints of rape against army men that have been systematically denied justice and must be investigated?

‘Why defame the whole institution of the army for individual bad apples?’

This is a common question asked by many people. Should the army be held responsible for rapes committed by men in its ranks?

Institutions are accountable for the actions of their members; they must act against men in their ranks accused of sexual violence. If the army as an institution – aided by the central government – shields those in its ranks who are accused of sexual violence, then it is indeed guilty of enabling and encouraging rape. Moreover, international criminal law recognises the principle of command responsibility, which means it recognises that military commanders have a responsibility to prevent war crimes and sexual violence by members of the military ranks.

The case of Manorama can show us how the army and central government as institutions protected members of the armed forces from being punished. The judicial enquiry commission headed by C. Upendra Singh, retired district and sessions judge, Manipur, found that Manorama was subjected to “brutal and merciless torture” and rape, and was subsequently killed by a 17 Assam Rifles team. The report that details the unmistakable evidence of rape, torture and murder makes for grim reading. The inquiry commission concluded that the Assam Rifles claim that Manorama was a suspected insurgent who was shot dead when she tried to escape from custody was “a naked lie” and that she was killed when helpless and in a vulnerable position. It concludes that the Assam Rifles men fired on Manorama’s private parts to try and destroy evidence of the rape, in spite of which semen was found on her clothes.

In spite of such strong evidence, why have the accused men not been tried in a court of law and punished for 13 long years? The rape and murder of Manorama was no less brutal than that of Jyoti Singh, but those guilty of the latter are in jail after having been tried and found guilty; whereas the former have been protected and shielded because they are members of India’s armed forces. This implies that we are giving our armed forces a license to rape in the name of the nation; we are saying some rapists must not be punished because they are ‘nationalists’. When we take on such an attitude, are we not telling the affected women that they do not belong to the nation? Are we not suggesting that ‘our men’ representing ‘our nation’ have a right to rape women if they are part of an ‘enemy’ community or nationality? What does this say about our notions of nationalism?

We must also question the role of our media in ensuring impunity in rapes committed by members of the armed forces. Most of our media (with a very few honourable exceptions) fail to do their duty of keeping citizens informed about the course of struggles for justice in such rape cases. Why is it that we never see primetime debates and regular news programmes tracking the progress of the Kunan Poshpora or Manorama rape cases? A protest in Srinagar seeking justice for these rapes is banned but this fact was not deemed important enough to cover or debate by most of India’s media.

Verma committee recommendations on sexual violence in conflict zones

When women’s movements raise the issue of sexual violence by the armed forces, the aim is not to ‘defame the armed forces’. The aim is to seek justice in every case of rape, no matter who the accused is. And the aim is to prevent such crimes in the future. The Verma Committee, set up after the rape and murder of Singh in 2012, made strong recommendations to protect women from violence by the armed forces in conflict areas. Recognising that such violence against women in conflict areas is a regular, systematic affair rather than an aberration, the committee called for regular monitoring of conflict areas by specially-appointed commissioners to check on the safety and well being of women, especially women in the army or police custody. The committee recommended that “Sexual violence against women by members of the armed forces or uniformed personnel must be brought under the purview of ordinary criminal law” – so AFSPA must not be used to shield any members of the armed forces accused of sexual violence. Stating that “we notice that impunity for systematic or isolated sexual violence in the process of Internal Security duties is being legitimized by the Armed Forces Special Powers Act,” the committee recommended a review of the AFSPA.

We need a sustained movement to demand implementation of these Verma committee recommendations. Will India’s TV channels highlight this issue and give it the importance it deserves? Will they help sensitise Indian citizens to the issues of justice for Manorama, the women of Kunan Poshpora and other such victims in Bastar, the northeast, Kashmir and other conflict areas? Or will it stage shows where it allows its panelists and anchors to drown out such concerns with slogans of ‘Vande Mataram’ and brand people raising such concerns as anti-national?

Kavita Krishnan is secretary of the All India Progressive Women’s Association (AIPWA).