Wrestlers' Protest | Supreme Court Should Have Monitored Delhi Police Investigation Against Brij Bhushan : Justice Madan B Lokur

Justice Lokur was speaking at a webinar on ‘The Wrestlers’ Struggle: Accountability of Institutions’ organised by ANHAD and the National Alliance of People’s Movement (NAPM). Also on the panel were Supreme Court advocates Vrinda Grover and Shahrukh Alam, and senior journalist Bhasha Singh. The programme was moderated by Anjali Bhardwaj, a transparency activist and founder of the Delhi-based Satark Nagrik Sangathan (SNS).

Justice Lokur expressed his concerns about the fairness of the police investigation, highlighting, in particular, the ‘threat perception’ that – he claimed – the Supreme Court had itself acknowledged when it directed one of the complainants – a minor girl – to be provided with security. What drove the wrestlers to protest and eventually to the Supreme Court as well, is the failure of the government to ‘make public’ the report of an oversight committee established by it to look into the allegations against Brij Bhushan, and the Delhi Police’s refusal to file a first information report (FIR). On May 4, the Court closed the wrestlers' petition taking note of the fact that the Delhi Police has already registered an FIR. The Court turned down a request made by the wrestlers' counsel to monitor the investigation and said that the petitioners can avail other remedies if they have further grievances. 

Criticising the Court's approach, the former Supreme Court judge said : 

“The petition before the Supreme Court questioned why an FIR had not been registered despite it being a cognisable offence. The court issued notice to the police in April and then they come out very magnanimously and agreed to register an FIR. This suggests that there was some substance in the complaint. The first thing the Supreme Court ought to have done is ask why an FIR had not been lodged before the matter was listed, which it did not do. In an affidavit, the court was also informed that there was a threat to the life of the wrestlers. On the next date of hearing, the bench directed police protection to be given which suggests that the life threat indicated to SC was perhaps real. Before the hearing, there was a scuffle that took place in Jantar Mantar where some drunk police officials manhandled the wrestlers, which the court must have been aware of since news about the incident was published in the newspaper. However, during the hearing, the bench said that the petitioners could approach the jurisdictional magistrate or the Delhi High Court in case of anything further. This should not have been said by the Supreme Court.”

Justice Lokur proceeded to substantiate his stance by saying:

“The whole thing suggests that the Delhi Police was slow and the wrestlers were under a threat, which the Supreme Court accepted. Keeping in mind the delay in lodging an FIR, even though it was a case of aggravated sexual assault, and the threat perception, the Supreme Court ought to have monitored the investigation so that nothing goes wrong. The Supreme Court has in the past monitored investigations, not with the view to see that the persons against whom the cases are filed are convicted, but to see that things don't go wrong, especially in cases involving politically well-connected persons such as the Jain Hawala case in the 90s...In some other cases also because of the nature of the case or persons involved, the court monitors the investigation to see that it does not get derailed. In my view, the court did not fully appreciate the position when they decided to not monitor the investigation. I think they should have.”

Besides this, the former judge also questioned the government’s refusal to make the report of the oversight committee publicly available. “The contents of the report were a big secret to everyone, but why? An adverse presumption could be drawn here, as lawyers put it. The first thing that would have been done if the report was in favour of the accused person was that it would have been made public. Therefore, the first presumption is that the report is against the person against whom allegations have been made. The refusal to make the report public, and register and FIR were what drove the wrestlers to protest on the streets.”

Questioning the modus operandi of the Delhi Police, while investigating the allegations, Justice Lokur said, “There was a peaceful candle march at Jantar Mantar in May. Later, the police came up with the idea to talk to 100 witnesses. Why was this necessary? It is not as if there was a whole crowd watching the sexual harassment of these girls. Now, the police say that they need audio and video evidence. What is going on? This is not done on the streets but behind closed doors. The investigation is for finding evidence. Otherwise, why have an investigation? The police could be handed all the material to prosecute the fellow and send him to jail.”

Justice Lokur also expressed his surprise over the criminal charges – including that of rioting – levelled against the protesting wrestlers. “That complaint of rioting has not been withdrawn. Theoretically, therefore, now these wrestlers who came there as victims of crime have now become the accused. Look at the turn of events. The police also said that they could not come back to the Jantar Mantar to protest,” the retired judge said. He also accused the Delhi Police of being complicit, saying, “It is quite obvious that the police is mixed up. They do not want allegations to be proved and they don’t want the investigation to proceed.” He added:

“When the wrestlers threatened to immerse their medals in Ganga as an act of protest, the sports minister assured that the probe would be completed by June 15. But, the question is, how did the minister know? This is something which only the investigating officer, or his superior, could say. Therefore, something is going on behind the scenes. This is very serious because the Supreme Court has said, in a number of judgements, that no one can interfere with an investigation. Not even the Supreme Court. Whether there has been any interference needs to be investigated, not that anyone will. But this is disconcerting to say the least.”

Earlier this month, in a surprising turn of events, the father of the underage wrestler, on the strength of whose complaint a case under the Protection of Children from Sexual Offences (POCSO) Act was registered against Brij Bhushan, withdrew the complaint. He said that he and his daughter had made ‘false allegations’ against the WFI president. With respect to this, Justice Lokur said:

“The minor was interrogated in the presence of four constables for about five hours – till 9:30 PM. What was the need to interrogate for this long when she has already given a written statement? This is nothing but re-victimisation. You have said this. Now, prove what you have said. This is what re-victimisation is all about and all courts have come down heavily against it. Why could they not have proceeded on the basis of the statement made by the minor to a magistrate under Section 164 of CrPC? Another girl was taken to the office, which they said was the scene of the crime. The scene of the crime is the person! It is the complainants’ bodily integrity that has been tampered with. What else is re-victimisation?”

With respect to the police’s intention to secure testimonies of witnesses from foreign countries where the crime was allegedly committed by Brij Bhushan, Justice Lokur said, “Can this be secured by June 15? The sports minister’s assurance has no meaning. Secondly, what kind of information are they hoping to get? These incidents – the sexual assault, stalking – did not take place in public.”

Justice Lokur further said:

“Rather than investigating the offence that has allegedly taken place, it seems directed to showing that the accused is innocent and that the wrestlers – including the minor – are saying something false. This appears to be the purpose. Investigations must be fair and unbiased. They cannot take place when persons are under threat. Assuming the matter goes to court, any defence lawyer worth their salt will be able to shred the case to pieces with this background. They will either say that the accused is not guilty or is entitled to the benefit of the doubt. That is the end of the story.”

“It appears to me,” the retired judge said, “That what is going to happen is a foregone conclusion.” He added, “Brij Bhushan is a powerful, well-connected person, who has not been arrested despite the allegation being one of aggravated sexual assault. He is out there making speeches. Evidence shows that witnesses have been threatened – maybe not by Brij Bhushan directly. Evidence is being tampered with, with the minor and her father going back on their initial statement being an indication of this. In this country, even a person who does not have a passport is arrested, despite not being a flight risk. All the events must be looked at as a whole, and not in isolation.”