The TLDR: Over the long weekend, the Uttar Pradesh government—and BJP—took a series of astonishing actions that displayed contempt for the young woman raped and killed in Hathras—and her family. We look at the tumultuous events and the laws that were invoked, breached or ignored—and new evidence that gives lie to the police’s claims. (Check out our explainer on the Hathras killing for details of the case).

The political backdrop

• On Wednesday afternoon, the UP government imposed Section 144—which bans any large gathering—and cordoned off the village. The official reason: to prevent widespread unrest.
• The media were blocked from entering the village or speaking to the victim’s family.
• A young cousin who spoke to reporters said that family members had been threatened, beaten and imprisoned in their home—and their phones had been confiscated.
• On Thursday, Rahul and Priyanka Gandhi attempted to go to Hathras to meet the family. 
• They were detained and sent back—after Rahul was thrown to the ground by the police during a scuffle at the border. 
• Members of the Trinamool Congress received the same treatment.
• On Saturday, the media blockade had been lifted. And the Gandhis made their second attempt to reach Hathras. 
• This time, Priyanka dominated the media coverage. First, this clip of her protecting a Congress worker from police lathis went viral. 
• Later, when the siblings were allowed to meet the family, the victim’s mother collapsed in her arms. The powerful image of that moment is below—or watch the clip here.

• Unflattering parallels drawn with images of Nirbhaya’s parents' visit with PM Modi. See one here. 
• Also not working in the PM’s favour: His decision to inaugurate the Atal tunnel in Himachal Pradesh on Saturday—which offered an unflattering contrast and fodder for Twitter mockery.
• On Sunday—while other Opposition politicians trying to enter the village were still being lathi-charged—a former BJP MLA held a meeting with 500 people near the village. And upper caste residents held a loud protest right outside the victim’s house (watch it here).
• The Telegraph has more on the politics and optics of the Gandhis’ visit to Hathras—and all the photos. 
• Also: Bilkis Bano of Shaheen Bagh sent this message of solidarity.

But all this was mostly spectacle—a backdrop for far more serious actions taken by the UP government, law enforcement authorities, and a BJP party spokesperson.

#1: The tapped phone call

The call: On Friday, OpIndia and Times Now released audio clips of a conversation between India Today reporter Tanushree Pandey and the victim’s brother. In the unverified clip, she appears to be asking for a video statement affirming that the victim’s father was being pressured to “approve” of the police investigation. She appears to be seeking independent confirmation for this video clip of the father being circulated by the Congress. (If you prefer to hear the recording for yourself, it is available here).

It was immediately framed by the BJP and its sympathisers as the liberal media’s attempt to distort coverage—and used to justify the media blockade.

The red flag: India Today immediately issued an angry statement:

“India Today first asks why was the telephone of our reporter, who was covering the Hathras murder, being tapped? If it was Sandeep’s phone that was being tapped, then the government needs to answer why are the phones of the grieving victim’s family under surveillance or being tapped. And under what legal provision of law were the phones tapped and call recordings leaked by officials…”  

The law: The government has the power to tap phones under Section 5(2) of the Indian Telegraph Act. In 1997, a petition challenged the provision as unconstitutional since it violated the right to privacy—and demanded that the power to tap phones be severely restricted and require prior permission of a court. 

The Supreme Court, however, upheld the government’s right to tap phones without permission from a court. It insisted that tapping can only be justified if the case involves national security or threats to public safety/order.

Points to note: The order to tap a phone has to come from someone high up in the state or union government. It has to be put in writing, and be reviewed by a committee. It also has to state who has access to the recordings. So the information on who ordered the tap, why and who leaked it is in some sarkari file somewhere. But we may never find out unless a court demands that information.

The bottomline: Given how loosely the government interprets national security and public order, the law offers very little protection for either journalists or ordinary citizens.

#2: The rape denials

The denials: There has been a concerted effort on part of the UP government and police to deny that the victim was raped. The government hired a PR firm to reach out to foreign correspondents. The note insisted that the allegation was part of a “conspiracy to push the state into caste turmoil.” More alarmingly, it also said: “SIT (the Special Investigation Task Force appointed by the CM) is sure to unveil [the] evil design behind the whole incident.”

The note reiterated what the UP assistant director general Prashant Kumar has told reporters:

“The forensic science laboratory report clearly says that sperm was not found in the samples collected from the woman... The report has made it clear that the woman was not raped… It suggests that some people twisted the matter to stir caste-based tension… Those who twisted the matter in the media will be identified and legal actions will be taken against them.”

FYI: The Forensic Science Laboratory is the government body tasked with investigating evidence in criminal cases.

The evidence: Report of the Aligarh hospital which conducted the medical examination of the victim were published on Sunday. They confirm the following:

• The victim was admitted to the hospital on September 14, and confirmed the sexual assault to doctors on September 22: “As alleged by the informant, the survivor was sexually assaulted by four known persons of the same village.”
• On the same day, the hospital brought in a magistrate so that she could make a ‘dying declaration’—as she was in a critical condition. She confirmed the gang rape in that statement, and named the four men.
• The doctors only performed a physical examination to check for signs of rape after she told them about it. And they confirm “penetration” was “complete” and the “use of force.”
• The report also cites the post-mortem conducted by Safdarjung Hospital in Delhi —where she died on September 29. This cited “multiple old, healed tears in the victim’s hymen” and that the “anal orifice showed old, healed tear.” 

The law: According to experts, the police have no legal basis for challenging the rape allegation.

One: The absence of semen in both the Aligarh hospital’s report and that of the forensic lab cited by police is unsurprising. Reason: she was examined only when she told the doctors about the assault. And according to the Aligarh hospital’s own Chief Medical officer, that forensic report cited by the police “holds no value”:

“The samples were collected 11 days after the woman was allegedly raped, while government guidelines strictly say forensic evidence can only be found up to 96 hours after the incident. This report can’t confirm rape in this incident.”

Point to note: According to the State Women Commission—which sent a rep to the Aligarh hospital soon after she was admitted—“The victim was in a pathetic state and was unable to talk.”

Two: The law does not require the presence of semen to establish rape. Nor does it require evidence of a physical struggle. BBC News has more on this point.

Three: A dying declaration carries great weight in criminal cases under the law—unless there is evidence of “coaching” or that it’s tainted by personal hostility toward the accused. As The Wire notes:

“The legal position regarding the admissibility of a dying declaration is settled by the Supreme Court in several judgments. A dying declaration is an important piece of evidence which, if found veracious and voluntary by the court, could be the sole basis for conviction. If it is found to be voluntary and made in fit mental condition, it can be relied upon even without any corroboration.” 

The truly repulsive bit: BJP spokesperson Amit Malviya tweeted out a clip that shows the victim being interviewed by a reporter outside the Aligarh hospital. He used it as “evidence” that the victim never said that she was raped. 

It is illegal to share any image or video that exposes the identity of a rape victim. But Malviya and other BJP supporters insist that since the victim was not raped—based solely on the police’s dubious claims—it was okay to share the clip.

The big kicker: After days of denials, a senior home ministry official told The Telegraph on Sunday that the official forensic report does indeed confirm “two deep injuries in her vagina.” He added: “I don’t know on what basis these officials and politicians claimed there was no rape.”

#3: Investigating the family

Upper caste pressure: The Thakurs in the victim’s village are outright blaming the victim: “She’s ruined our village’s name… brought such disrepute. Who will marry their daughters into this village now?” According to her family, they are being pressured to accept monetary compensation to make the case go away (clip here).

More frightening are the bare-faced threats of retaliation. See one such Thakur meeting in the village below:

Law enforcement pressure: The local District Magistrate was caught on tape bullying the family, trying to get them to change their statement—which they later confirmed to reporters: “When the video got out, the DM came again and threatened to confiscate our phones.” See the clip below:

The counter-investigation: The Thakurs are denying all charges of rape—and insist that the victim’s family be investigated for bringing a false case. See: NDTV interview here. More worryingly, their demand appears to have been heard loud and clear. On Friday, the government issued a statement that truth serum and lie detector tests (explained here) will be administered on all parties—including the victim’s family.

The law: strictly forbids administering any such test on any citizen by force. In a 2010 case, the Supreme Court clearly stated that such tests violated the right against self-incrimination and to due process. Hence, such tests can only be performed with the consent of the accused—or anyone else for that matter. It requires the presence of a lawyer, written consent offered to a judicial magistrate, and must be recorded by an independent authority.

Point to note: The victim’s family has flatly refused to take any such test. And the former Director General of Police of UP has called the idea of testing a victim’s family “preposterous.”

The bottomline: Given CM Yogi Adityanath’s track record (See: Kafeel Khan), our wager is that this is his government’s gameplan: suppress or tinker with the evidence to ‘disprove’ the rape charge; use that to slap charges of inciting caste violence on the victim’s family and some journalists—deploying UAPA or some other draconian law, as usual. This keeps the upper caste votes secure and sends the intended message—apni aukat mein raho—to all others, be it Dalits or the media.

The problem: the Opposition and the media did not for once play their part. Also: Bihar elections where the Dalit vote will play a decisive role.

Reading list

• The Wire for a first-hand look at the medical report filed by the Aligarh hospital. Also in The Wire: The value of dying declarations.
• Quint has a good piece on the legal use of polygraph and truth serum tests. Indian Express explains how they work. 
• The BJP is already in damage control mode and blaming the entire mess on Yogi—as this Print piece brimming with anonymous party quotes reveals.
• If you read just one op-ed, check out Menaka Guruswamy’s scathing takedown of the legal and ethical rot revealed by Hathras.
• Sankarshan Thakur in The Telegraph is just as blistering in his column on Yogi’s Uttar Pradesh. Article 14 has a longer reported piece on the same subject.
• News Laundry offers a first-hand account of the boorish and contemptible media circus in Hathras.
• If you missed the Gandhis’ visit to Hathras. The Telegraph has all the photos.
• Vrajesh Hirjee’s brilliant and emotional recitation of a powerful Hindi poem is all of us right now.