Will Justice Forever Elude Survivors of Kunan-Poshpora?

Over 25 years on, Freny Manecksha unravels the grisly twists and turns in the tale, a take that involves allegations of gendered violence by the Indian army

In April 2013, galvanised by the way in which the gang rape and death of a young physiotherapist in Delhi had become a raging national issue, a bunch of young women in Kashmir filed a Public Interest Litigation (PIL) plea in the High Court.They believed that if the death of one woman could evoke such an out pouring of emotion then why could one not seek justice for two villages of raped women? Inhabitants of Kunan-Poshpora had made complaints of mass sexual rapes and torture of men by the Fourth Rajputana Rifles Mountain Brigade of Indian army on the intervening night of February 23/24, 1991, but nothing had happened.

These young women in their PIL sought implementation of the State Human Rights Commission’s order (SHRC) of 2011 directing criminal prosecution of the accused and officers responsible for the crimes and the subsequent cover-up and recommendation of monetary relief.

The High Court (HC) did not admit the PIL calling it ‘premature’ as the State had just filed a closure report. However, there was an interesting development when, on June 18, 2013, the Judicial Magistrate of Kupwara, (the district under which the villages lie) did not accept the closure report and ordered further investigations by the SP, to be completed within three months.

A full three years on from this order and twenty-five years after the incident of mass rapes and torture, the investigations have gone nowhere. Justice continues to be denied to the villagers.

And, in its latest round of delay tactics, the Indian army (through the Ministry of Defence, Union of India), has, on June 26 petitioned the Supreme Court (where the matters have shifted after considerable twists and turns) and challenged the orders of the Jammu and Kashmir High Court on the question of both investigation(s) and compensation(s).

Interestingly, this very same order of the High Court had been earlier challenged by the government of Jammu and Kashmir in November 2014. It had informed the HC it would challenge its directions regarding compensation in the Supreme Court and that was how the case went to the highest court of the land.

The Union of India chose not to respond to the petition then, despite being given both time and the opportunity. It waited a full year wasting the court’s time and adding on to the agony of the survivors. (In the intervening years six victims of the rape and torture have already died).

It is also pertinent to note how in its present petition the army yet again resorts to the rhetoric of national security and casts aspersions on the victims saying the allegations of rape and torture are a “hoax orchestrated by militant groups,” part of a cleverly contrived strategy of psychological warfare to “discredit the security forces by indulging in false propaganda with a view to jeopardize the conduct of counter insurgency operations.”

This bid, to thrust a counter-narrative is in line with the one made in July 1991 when at the army’s behest a Press Council of India team, headed by the late B G Verghese, had submitted its report dismissing the complaints of rape, as a militant hoax.

But the villagers of Kunan-Poshpora have recounted their narratives to human rights activists, journalists, film makers and organisations like Amnesty International and Human Rights Watch, over and over and over again -none of whom have raised doubts concerning their veracity. The SHRC team too has published its report and it is the state that has failed to file the Action Taken Report on the SHRC recommendations as is mandated by law.

The judicial magistrate Kupwara who had refused to close the case and who directed further investigations on the police’s final report has also stated he found an “unbreakable chain of facts and circumstances to put the suspects (125 army personnel) on trial.”

In fact even a cursory analysis of the labyrinthine twists and turns of the Kunan-Poshpora case will illustrate how seeking justice in Kashmir for crimes perpetrated by security forces becomes a Kafkaesque experience.

It is not just that the Armed Forces Special Powers Act (AFSPA) makes it mandatory to seek sanction for prosecution. But, impunity is so pervasive that even normal procedures of criminal law like filing a closure report before the magistrate are routinely flouted. Investigations are shoddy and the court remains helpless as police and security personnel ignore standard procedures and prolong trials for decades on end.

In the book, Do You Remember Kunan-Poshpora? written by Essar, Ifrah, Samreena, Munaza and Natasha- four of the petitioners in the Kunan-Poshpora case – there are accounts of how the investigations by the police between March 1991 and September 1991 were improper and incomplete and how investigating officers were repeatedly transferred and changed.

Besides the shoddy investigations there were deliberate attempts at a cover up and to silence some voices. One of the book’s important chapters deals with this aspect and makes an attempt to create a parallel memory by meeting and talking with some of the people who had played an important role in 1991.

There is an account and interview with SM Yasin, the ex DC of Kupwara, whose controversial report became the official basis of the registration of the FIR filed on March 8, 1991. It was Yasin who had said in his report that “the armed forces had behaved like violent beasts.” Yasin also made the startling disclosure that the Press Council Team never actually visited the villages. In his recent interview Yasin spoke of how police officers as well as army officers had threatened and tried to intimidate him.

There is also the curious case of a first set of medico-legal reports going missing from the police file. In fact one of the key arguments of Verghese in dismissing the women’s complaints was that no medico-legal report had been filed as required. However the Block Medical Officer, Dr Makhdoomi, distinctly remembers doing a first round of medical examinations on March 8 or 9, 1991 on 18 women at the Kralpora Primary Health Centre. He said the reports were directly handed to the police as it was a police case. Verghese claimed he got a copy of reports from the Chief Medical Officer. Documents in the police file show detailed examination of survivors done on March 15 and 20 by which time there would not be much physical evidence of actual rape.

Sadly Dr Makhdoomi who is now old was not able to answer some questions posed by the young women saying he could not be expected to remember these after all these years. The chapter notes how some fragments of telling have been lost forever. Constable Abdul Ghani who played a crucial role in trying to help survivors was mysteriously killed in an encounter some years later.

It is also interesting to note in the detailed chronology of events proffered by the book, how the police investigations ground to a halt after the unofficial state-directed narrative of B G Verghese dismissed the complaints. In October 1991 the Jammu and Kashmir Police closed the Kunan-Poshpora case but did not place it before the magistrate as required.

It is only in 2013, after the young women filed a PIL in court that a hasty bid was made to place it before the magistrate who then ordered a fresh probe. It also speaks volumes of the quality of the fresh probe that three of the persons summoned before the police on July 30, 2013 as survivors/witnesses are no longer alive. An application by the SP Kupwara on September 13, before the court seeking extension by six months, shows that besides two letters and a few phone calls nothing has been done by way of investigation.

Furthermore, it is interesting to see how the army had filed a revision petition on November 12 2013 in the Sessions court to shut down investigations which was dismissed on August 12, 2014. The Sessions court also censored the J&K police for their ‘non seriousness’ and ‘casual and irresponsible manner’ apparent from years of delay in investigating the case.

Besides the crucial issue of investigations there is the question of compensation, which was raised in a petition made by the villagers before the High Court, citing the SHRC recommendations.
Shrimoyee Nandini Ghosh, legal researcher and human rights activist who has keenly followed the Kunan-Poshpora case observes how from the time the case was re-opened for further investigations in the sessions court in Kupwara, the state government and army have played a complex game of collusion as well as contradiction of each other’s stand to cause maximum possible obfuscation and delays.

The promise of compensation was used as a way of trying to dilute the focus on investigation even as sufficient evidence exists (including names of the accused) to bring the alleged perpetrators to trial.

She observes how the counsel for government of J&K stated on August 12, 2014 they were not averse to the payment. The court later directed the government to pay compensation and produce receipts for the amount before the court. The court also sought a status report on investigation and additional advocate general asked for four weeks’ time to file the report.

But then the army filed a response saying compensation should not be paid and that the SHRC had no validity. And suddenly the J&K government too did an about-turn and said it would go on appeal in the Supreme Court challenging the order asking them to consider compensation for the victims.

Meanwhile the army and state separately obtained stays on the investigations from a different bench of the HC.

And now after a full year after this appeal (during which the case was stuck before the registry for serving all the parties) the army has gone on appeal against not just the issue of compensation but also the more crucial aspect of investigations- something that the villagers really wanted.

Another significant incident involving the question of compensation is that back in February 2012, then law minister Saifullah Mir had met with the survivors and handed over a sum of Rs. 39,25,000 in cash to some women supposedly as “official compensation.” But the state government then denied making such payment. This money was paid just before the efforts began getting underway for the PIL demanding fresh investigations.

What does this latest move mean for the survivors who are determined to fight on?

The legal team said there will be further delays but are hopeful that if the Supreme Court should choose to take a proactive approach, rather than technical, it could be a useful opportunity to bring all the issues of investigations before the court which can view it as a grave human rights violation rather than a technical one of a routine case of appeal.

Decades have passed, the women have grown old. Some have died but there is a new generation who affirm crime never dies and neither does the struggle for justice.

1. Army Petitions Supreme Court to Close Kunan Poshpora Rape Case
2.The story I never got to tell – of rape and torture by the Indian army
3. Valley of fear, depths of despair

Freny Manecksha is an independent journalist from Mumbai interested in human rights and gender issues. This article originally appeared at Sabrang India.

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