Saturday, June 6, 2015

Aarefa Johari - Women are being illegally detained in shelter homes for falling in love. Yet nobody’s being punished

For one month, a school teacher from Uttar Pradesh’s Amroha district was forcibly detained in a women’s shelter home, forbidden from stepping out, meeting people or going to work, all on police orders. Her crime? The woman, Kanchan Verma, wanted to live with her Muslim boyfriend, against the wishes of her parents.

On May 26, exactly a month after Verma was confined at the Nari Niketan in Amroha’s Dhanaura town, the Allahabad High Court responded to her habeas corpus petition and gave her some justice: the court criticised the police’s violation of Verma’s basic right to life and liberty and ordered her immediate release from the shelter home.

But justice was only partially served, say women’s rights lawyers. As with most such cases reported across the country, no action has been ordered against the sub-divisional magistrate who sent Verma to a Nari Niketan despite the fact that she was an adult who had made her wish to live with her boyfriend perfectly clear. “The police routinely order such ‘protective custody’ of women against their will, and action is never taken against those officers,” said Vrinda Grover, a women’s rights lawyer based in Delhi. This culture of impunity, say lawyers, is what perpetuates the repeated violation of young women’s constitutional freedoms at the hands of state agencies.

The Amroha case: Verma, a teacher at a school in Gajraula, Amroha district, landed up in the Nari Niketan because of what the local police perceived to be a “breach of peace” in the town. Her ordeal began on April 27 when she met her boyfriend, Nasir Ali, at a degree college in the area and attempted to leave with him.

Verma had known Ali for 12 years, but her parents were opposed to the relationship because Ali is married, has children and also belongs to a different religion. When Verma and Ali tried to leave together from the college last month, her parents arrived there and tried to block them. As crowds gathered, the local Gajraula police decided to take the couple and their families to the sub-divisional magistrate of Amroha.

Since Verma and Ali belong to different communities, the police claimed to the SDM that they apprehended a breach of peace and filed reports under Section 151 of the Indian Penal Code. The section authorises the police to arrest, without the orders of a magistrate, anyone with a design to commit a cognisable offence. The arrested person cannot be detained for more than 24 hours without any further orders from a court.

This, too, was violated in the case of the Amroha couple. The sub-divisional magistrate’s report notes that both families were opposed to the couple’s relationship while both Verma and Ali wanted to live together and marry. The SDM chose to send Ali into judicial custody while Verma was sent off into another kind of imprisonment – the Nari Niketan.

Ali was eventually let off on bail, but Verma was not allowed to leave the shelter home that is officially meant for destitute or rescued women. “The state cannot just put an adult woman into an institution instead of ensuring a safe environment for men and women to live together,” said Grover. “In doing this, the state is infantilising the woman by assuming she doesn’t know what is good for her, and also demonising the Muslim man as a predator.”

The court order: Verma’s habeas corpus petition protesting her unlawful detention was filed in the Allahabad High Court through Ali. In the petition she claimed she was being made to live with juveniles in inhospitable conditions and was prevented from going to out to work.

A two-judge bench of the court ordered her release on the grounds that an individual’s constitutional right to life and personal liberty cannot be violated, and that there was no need for the police to invoke Section 151 in a case where there were only apprehensions of a law and order situation.

The court order is clear in its condemnation of the SDM’s decisions. “There was no occasion for the magistrate to detain her [Verma] in a Nari Niketan,” it says. “The action of the sub-divisional magistrate was not only arbitrary but there was total deprivation of the personal liberty of the petitioner, which was issued without any authority of the law.”

In accordance with the High Court order, Verma has now finally been released from the Nari Niketan and left at her parents’ home. “She is now free to do what she wants, the police will not be involved,” said an officer from the Gajraula police station. But the court order stops short of taking any punitive action against the SDM for violating the law and illegally confining an adult, even if in a shelter home. This, say activists, is one of the main problems in cases of socially transgressive relationships.

‘SDM should be paying damages’: In 2003, Supreme Court advocate Karuna Nundy surveyed Nari Niketans in and around the capital as an officer on special duty with the National Human Rights Commission. Most inhabitants of Nari Niketans, she found, were mentally ill women no longer wanted by anyone and sex workers brought there by the police.

“But around one-third of the women in the Nari Niketans were there because of love marriage cases,” said Nundy. When young girls elope with lovers from a different caste or religion, families file complaints of kidnapping and rape regardless of whether their daughter is a minor or an adult. “If the girls claim they eloped out of free will, the police often send them to Nari Niketans.”

This happens frequently across India, say lawyers, and is reflective of how state agencies essentially join hands with the parents and family members of young women, even if the parents are depriving adult women of their freedom to choose a partner. “I would like to see the parents being put into protective custody instead, because they are the ones who pose a threat to peace,” said Grover.

Most importantly, the police officers who order the unlawful detention of women should face explicit and clear action, Nundy said. “In this case, the court should have awarded damages to the woman from the sub-divisional magistrate himself, and this incident should go into his personal records,” said Nundy. “Police impunity has to be explicitly punished, or there will be no disincentive for continuing such violations.”