Justice Delayed: The Unnao rape survivor's long-running legal battle
LUCKNOW: At a time when the pillars of democracy appear to be crumbling incessantly, the judiciary is still considered the last resort for the common man to seek unconditional reprieve. However, when a rape survivor is forced to sit on a dharna under the chilling winter sky against a convicted perpetrator, mind you, not an accused, the image appears deeply disturbing. The conditional bail granted by the Delhi High Court to former BJP MLA Kuldeep Singh Sengar in the Unnao rape case has stirred the nations conscience. Although the Central Bureau of Investigation (CBI), the main prosecuting agency in the case, has moved the Supreme Court against the December 23 judgment , the survivors lawyer, Mehmood Pracha, has expressed serious doubts over the intent of the central agency, which has been probing the case since it was handed over to it following a massive public outcry during the Yogi Adityanath governments tenure in 2018. We are not sure if the CBI will contest this case in the Supreme Court sincerely or not. We feel that the CBI has approached the Supreme Court just to save its face and to douse public anger against the Delhi High Court order, Pracha said. He said he would approach the CBI office to get an FIR registered on behalf of the rape survivor against the investigating officer of the case and other CBI officials, who had allegedly been backing Sengar during the trial in the lower court, seeking action against them. Pracha also claimed that he was preparing to independently challenge the High Court order in the apex court so that there could be some scope of justice for the survivor in the present circumstances. The only relief for the survivor is that Sengar will remain in jail as he is currently serving another 10-year sentence for allegedly plotting the murder of the survivors father while in judicial custody. He would walk out of jail only after securing bail in that case as well. Two lawyers move SCchallenging Delhi HC order granting bail to Unnao rape convict Kuldeep Sengar Who can forget the April forenoon of 2018, when a 17-year-old minor from Unnao attempted to die by suicide outside the heavily guarded chief ministers residence in Lucknow in a desperate bid to force the state government to acknowledge her plight. The minor alleged that Sengar, then the powerful BJP MLA from Bangarmau in Unnao, had raped her the previous year. She also accused the system of shielding him. After facing alleged mudslinging and character assassination, the survivor was finally heard and an FIR was eventually registered by the Uttar Pradesh police against Sengar, his brothers and others named by her. She was aware that it would be a long and arduous battle for justice. Sengar was arrested and sent to jail, but not before allegedly plotting an assault on the survivors father while he was in custody after being picked up by district police in connection with a brawl involving Sengars supporters. The survivors father was allegedly coerced by the police authorities in Unnao to pressure his daughter into withdrawing her allegations. The Uttar Pradesh government transferred the probe to the CBI in April 2018. In 2019, the survivor had a providential escape after a truck rammed into her car on a national highway. Since then, she has been living under court-ordered Central Reserve Police Force protection in Delhi. She eventually got married in 2023. The hearing in the case was shifted to the national capital on the directions of the Supreme Court, which transferred it from Lucknow citing grave threats to the survivors life. In December 2019, the trial court sentenced Sengar to life imprisonment and ordered him to pay Rs 25 lakh as compensation. He was tried under child protection laws as the survivor was 17 at the time of the assault in 2017. However, six years after the conviction, another judicial order has brought the focus back to the 2017 case. Unnao rape case: Protest outside Delhi HC against suspension of Kuldeep Sengar's jail term Aghast at the High Court order, the survivor and her mother, along with several social activists, protested at India Gate and outside the Delhi High Court. They were allegedly dragged, pushed and pulled by the Delhi police during the protest. According to legal experts, the Delhi High Courts order was based on a legal technicality raised by Sengars counsel, whether the former legislator qualified as a public servant. The argument centred on Section 5(c) of the Protection of Children from Sexual Offences (POCSO) Act, which allows a life sentence for aggravated penetrative sexual assault committed by a public servant. This provision was used by the trial court to award Sengar a life sentence in December 2019. Exploiting what was argued to be a loophole in the definition of a public servant under the POCSO Act, Sengar drew benefit when a two-judge bench of the Delhi High Court ruled that he could not be categorised as a public servant either under Section 5(c) of the Pocso Act or Section 376(2)(b) of the Indian Penal Code (IPC). The court, in its prima facie finding, said the offence of aggravated penetrative sexual assault under POCSO was not made out against Sengar. In suspending the former MLAs life sentence, the High Court observed that since the POCSO Act did not define a public servant, the term had to be interpreted through Section 21 of the IPC, which lists various categories of public servants but does not explicitly include MPs or MLAs. Under POCSO, aggravated penetrative sexual assault by a public servant is punishable with a minimum 20-year jail term, extendable to the remainder of a convicts natural life. Several legal experts argue that the High Court order runs contrary to the trial courts findings. The trial court had held that a public servant was anyone holding an official position mandated to perform specific duties under the Constitution, and that Sengar fell within that category. Will not be scared, have faith in Supreme Court: Unnao rape survivor After settling that Sengar was not a public servant, the High Court prima facie held that he was nonetheless guilty under Section 3 of the Pocso Act, which deals with penetrative sexual assault and carries a minimum sentence of 10 years. Granting further relief, the court noted that since the offence occurred prior to the 2019 amendment to the POCSO Act, which raised the minimum punishment from seven years to 10, the earlier sentencing framework applied. Consequently, the court observed that Sengar had already served the minimum term. However, the High Courts emphasis on safeguarding the fundamental rights of a convicted offender has struck a discordant note in a case where the survivor and her family have faced alleged intimidation and constant threats from a powerful political figure. Ever since the conditional bail was granted, there has been an outpouring of support for the Unnao rape survivor, who has repeatedly said she fears for her life. The trial court had earlier flagged serious lapses in the CBIs investigation, stating that it was an inescapable conclusion that the agency did not conduct a fair probe. It observed that the CBIs alleged laxity worked to the disadvantage of the survivor and her family and also questioned the delay in filing the charge sheet in the custodial death case against Sengar. The survivors struggle dates back to the initial inaction of the Uttar Pradesh police, which was criticised by the Allahabad High Court. The disturbing feature of the case is that the law and order machinery and the government officials were directly in league and under the influence of Kuldeep Sengar, the court observed in April 2018. The court noted that the survivors father was allegedly assaulted by Sengars relatives and henchmen. Even the survivors uncle was implicated in a petty case and continues to languish in Unnao jail. Despite being grievously injured, the survivors father was declared fit by the then Unnao Chief Medical Officer, following which he was sent to jail. He later died in judicial custody. Unnao rape case: CBI to challenge Delhi HC order; survivor meets Rahul Gandhi, seeks assistance Kuldeep Singh Sengar, a party-hopping politician, was regarded as a towering figure in Unnao. The eldest of four brothers, he entered politics by winning a Gram Pradhan election in 1996. He later won the 2002 Assembly election from the Unnao constituency on a Bahujan Samaj Party ticket. Over the years, he switched parties multiple times, joining the Samajwadi Party in 2007, winning from Bangarmau, repeating the feat from Bhagwantnagar in 2012, and eventually joining the BJP to win from Bangarmau in the March 2017 Assembly election. Months later, in June 2017, the survivor accused him of raping her at his office in his ancestral village on the pretext of offering her a job. A Thakur by caste, Sengar was considered an electoral asset across parties in Unnao, a district with a sizeable upper-caste population. He consolidated his clout with the backing of his brothers, Manoj and Atul, who allegedly acted as strongmen and helped him dominate the region adjoining Lucknow. The Sengar brothers were once accused of firing at an Additional Superintendent of Police-rank officer. Instead of booking them, the state police allegedly chose to strike a compromise in 2004.
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