 Hello and welcome to NewsClick. Today we are joined by Indira Jayasin, a senior advocate at the Supreme Court of India and also the founder of the Lawyers Collective and the Leaflet. And we are going to be talking about the developments around the heartless, rape and murder case. Now there's been a lot of attempts at muddying the water, especially by authorities of the state. We have also heard reports of a PR firm being brought in to supply all kinds of information. So at this point it's very essential that we are able to take a precise look at what exactly happened, what was the kind of response that the state had, what was the kind of response the various institutions of the state had. Indira Jayasin is a lawyer who has worked extensively on many of these issues including on the framing of laws. So thank you so much for joining us. So first of all, I wanted to quickly ask in terms of the institutional response of the state in the immediate aftermath of the incident that was on September 14th when the very wild brutal assault took place. How do you see its successes and failures? So let's deconstruct the word state to begin with and how many different agencies that it involved. We all know that when a crime occurs and a crime of this magnitude, the first people that are accessed from the state is the police. And then equally importantly, equally urgently, equally responsible is the medical profession. Because the minute a rape of this nature is reported to the police, the first thing they need to do is to take the victim directly to a public hospital where she's not only given treatment, but she's also permitted to make whatever statement she wishes to make. Most public hospitals do have a constable placed within the hospital who's meant to access the nearest police station and make sure that she's given an opportunity to record her statement. So these are the two agencies of the state that we have to first look up for when we talk of things like accountability. Right. So in this context, in the immediate aftermath of the incident, if we can maybe take a look at what exactly happened, do we see that what are these institutions, both the medical system and the police system, able to actually give her any of the kind of support that she needed at that point of time? Right. Now we all know that the first thing the police are supposed to do is to record what we call a first information report. I'd like to emphasize the word first. In law, the credibility of the first point of time at which information is provided to the police is what is needed and what the law pays maximum attention to. Now, when you come to a victim, the victim can either relay this information or really now in a case of this time, you don't expect her to pen it down in writing and give it to the police station or give it in writing. Now we are dealing with the case in which I would say things are self-evident because when her mother states that when she saw her daughter, her tongue was sticking out, her eyes were popping out and she was naked. Where is the need for a complaint? The body speaks for itself and at that point of time, the police were expected to record what they saw, what was said to them and that would become the first information report based on which all investigations proceed. So I would like your channel and your viewers to understand the significance of the urgency involved when a crime takes place. We all know that no one can tapper with the scene of offense and here we are dealing with a situation where the body is the location of the offense. So this is what they were expected to do. The first level of failure was no FIR was recorded. Let me tell you this is in law a crime in the year 2013. A section was introduced into the Indian Penal Code which makes it an offense not to record an FIR. So that s the first level of institutional failure. Now the next level would be when she gets taken to the hospital. I am not in a position to directly comment on that because very recently I ve read a report which is actually indicating that the doctors who dealt with her have put it on record that in their opinion there was a penetration of the child. As I said, I m handicapped because I don t have a copy of that report and perhaps rightly so I think the doctors have acted wisely in not making the report public. But what is shocking to me is that in the face of that report you have now let s go to the next level of state. We ve been through the first and second level of state. Where do we come to the third level of state? The third level of state would be the bureaucracy within the state that is charged with the duty of making sure that crime is properly investigated. And it s there that you have officials of the state come out openly and deny that any rape ever occurred. First of all, it s no part of their duty to say that. These bureaucrats are not PR agencies. They are sworn to secrecy. Their job is to make sure that the investigation is done without any political interference. And here you have the opposite. What impact is it going to have on investigation if you have a person from the state coming and saying, oh, but there was no rape. You re just encouraging your investigators to say, of course there was no rape. And let s understand clearly, yes, it s true that gang rape and murder suffer the same penalty. But the point is that to deny a rape ever took place is to deny a very emotive, cultural, social, gendered and caste issue. It can t be wished away. It s not good enough to say, well, well, we have an FIR for murder. So what does it matter if we don t have an FIR? It matters. And that s why I m surprised to see officials of the state come out and say there was no rape at a premature point of time. And this also, I would also like to come to the much later incident which is on the September, on 30th of September immediately, 29th of September, she succumbed to her injuries. Early in the hours of the 30th of September, that s Tuesday, the body was taken back to a native place. Her family says that they were barricaded in their homes while her body was cremated. And this has been one of the aspects that has really shocked people across the country, massive protests across the country, people just expressing sheer disbelief at how this has happened. So how did they even manage to do that? As in what were the grounds by which they could actually take the body and cremate it in that manner? So this brings up another level of state. And that is the South Virginia hospital. My question is, by what authority of law was this body released to a person who s not the next of kin? Yes, it was released to UP police, but why? UP police are not her next of kin, all right? And that hospital has to answer to the question, why was this body released to somebody who had no legal claim to the body? I think I m very happy to note that the Division Bench of the Alavatha High Court is focusing its attention on this because the question that it raises is, to whom does a dead body belong? Now, I want to say this loud and clear that a body, dead or alive, does not belong to the state. I think this is a little discussed issue. And all of us, because we know that we live in a society regulated by law, we tend to take it for granted that the state can do what they want to do with you. They can decide when you get up, when you go to sleep, when you eat, what you eat, what you don t eat, what you say, what you don t say, and similarly have complete control over our bodies, okay? So I think this case gives us this opportunity to say loud and clear our bodies belong to ourselves, that we have bodily autonomy in life as in death. And the only person who can claim custody of our dead bodies are our next two kids. So you have another institutional failure over there. It s not good enough to say, well, we gave it to the police. If they gave it to the police, then they must explain that they did it only for the purpose of being handed over to the next of kin, if at all. The correct thing for them to do would have been to put the body in a morgue and to send for the next of kin and hand it over to the next of kin. Well, I mean, you know, this is something that needs to be said, because there are other high profile cases, which I don t want to mention at this time, they are extremely sensitive, where I ve seen this thing happening, that the body was handed over one minute. There have been cases where the next of kin were not called to witness the postmortem. They have to be called to witness the postmortem. But there are cases in the past, which I m alluding to, where postmortems have been done, where people have died under suspicious circumstances. The next of kin were not summoned to witness the postmortem and the body was handed over to a stranger, if I may say so. So yes, your question is absolutely on the dot and someone has to answer for this. Absolutely. And also, just before going into some of the maybe larger dimensions as well as the future part, the other key question is that the woman did at a give a verbal testimony naming the suspects. So on what grounds basically are the police even saying something you raised as well that there was no possibility of rape? So what is even the logic of that? I mean, I cannot, I don t like using words like this, especially in an interview, but I m fast beginning to believe that it s nothing but a lie. And everything that happened thereafter is pointing to that conclusion. Somebody somewhere is doing a massive cover-up. Now it s one thing, yes, you hand over the body to a stranger, but by what authority did they cremate it? And that too against the consent of the family in their absence. Today I ve heard the family say things like it wasn t even her body. See, there is a logic for ensuring that the chain of custody of the scene of the crime, in which case the scene of the crime, it is her body which was the locus of the crime, is not disrupted. There s a logic to it. And the logic to it is also to build a sense of confidence in those who have a right to know what s going on with their next of kin. That chain is broken when you take away the dead body from the custody of the person to whom it belongs, that is the next of kin. Of course, they themselves would have cremated the body in accordance to their, in accordance with their wishes, their customs, their traditions, whatever it may be. And this was not allowed. Again, this is an egregious crime in and of itself. And someone has to answer for this. And I m very glad once again to say the love of God is focusing his attention on this issue. Absolutely. And in this context, of course, that was, like you said, that was just one of the manifestations of this attitude because after the September 30th, we saw how the family was not allowed to speak to the media. The media were not let in. There were reports of the district magistrate even talking to them in a threatening way. So we do see that there has been a continuous attempt to make sure that information, a lot of information does not get out. But it did. And once there was an outreach, now the government itself has recommended a CBI probe. So do you see this as in any way a positive sign or how would you see that? Well, the family itself has rejected the idea of a CBI probe. So if it's if it's about sensitivity to their wishes, I think we should defer to them. Somewhere I get the impression in this case, it isn't even going to be enough to make sure that there is a proper investigation and a prosecution. What I would ideally like to see is a commission of inquiry separately from the prosecution. A commission of inquiry under the commissions of inquiry looks into specifically the levels at which the state failed, regardless of whether she whether anybody is convicted or not convicted. That's not the point. What if ultimately in a properly conducted investigation and prosecution, it is held that there was no so far. There's been a murder anyway. But that prosecution will not go into the question of what were the levels of failure of what you first, your first question. The first word you uttered in this interview was the state. So the question really is a commission of inquiry of the levels at which you mentioned an additional level. You mentioned the district magistrate. How far up the chain of command does this failure of responsibility go? With whom does the buck stop? Will it stop with the home minister of the state? What kind of liability does he have to make sure that his bureaucracy do not interfere with a free and fair investigation? Has there been a failure at that level and compounded with the fact that this is a crime at the intersection of gender and caste? What kind of caste atrocities are Dalits facing in this country? What kind of atrocities are women facing in this country? Only a properly constituted commission of inquiry would give us the answers to this question and point to the way forward. Absolutely. And finally, maybe a slightly larger question. We remember that in 2012, after the incident of rape at Delhi, there was a massive number of protests. There was a lot of discussion at that point of time about the kind of laws that needed to be implemented. And not maybe not only that, but even before people's movements, feminist organizations, lawyers, they have been in the forefront of pushing for a very strong legal system to deal with cases like this, especially when it occurs at an intersection of caste and gender, as you pointed out. But in today's situation, how do you see the strength of these laws actually when it comes to being implemented on the ground and especially maybe in a state like Uttar Pradesh? A law is as good as its implementation. And here, I think an issue which is as important as the rape is the issue of command responsibility. Unless we address that question, we are getting nowhere with these laws. Sometimes people say it's a question of, no, it's not a question of implementation or lack of implementation. It's a political question. It is all these institutions are actually banned by people from the upper caste. And they have come to believe that they have a right to oppress. Well, I was dumbfounded when I saw a video in circulation of a very high up police officer in Madhya Pradesh who was beating up his wife. Here is a man who was given the charge of preventing crime against women, okay, an officer of the state. He's beating his wife and he's coming out in the public domain and he's saying it's not a crime to beat your wife. Now, if it's not a crime to beat your wife, then it's not a crime to beat a Dalit woman. Then it's not a crime to rape a Dalit woman. It's just not. What you're seeing here is a decriminalization of crime and a crime which is in the nature of an atrocity, okay, not just a crime. So to answer your question, I don't see this as a question of lack of implementation. I see this as a lack of political will. I also see it as a lack of, you know, the mindset. Again, the word mindset has no meaning. Physically in flesh and blood, these positions are banned by people from the upper caste with no empathy, with no respect for law. Absolutely. Thank you so much, Ram, for talking to us. Thank you. That's all we have time for today. Keep watching us.