The present discourse addressing the culture of
impunity regarding sexual violence by security forces in Kashmir suffers
from a structural limitation - its fi xation on the Armed Forces
(Special Powers) Act, 1990, and the institution that this law protects.
The experiences and fate of many cases of sexual violence, where
survivors have attempted to access the justice system, suggest a more
complex structure of violence and impunity; AFSPA is only a small cog in
this giant machinery of institutionalised repression.
Ayesha Pervez (
ayeshapervez1@gmail.com) works in the fi eld of violence against women and girls, and is based in Srinagar, Jammu and Kashmir.
What followed the public interest litigation (PIL) in the Jammu and
Kashmir (J&K) High Court in April last year, demanding the reopening
of and reinvestigation into the infamous Kunan-Poshpora “mass rape”
case, is a déjà vu of sorts for Kashmiris, for it echoes a familiar
series of responses which the survivors of sexual violence from the
villages of Kunan and Poshpora had witnessed in 1991 – that
investigation process had been handled with much callousness and
inherent biases. Twenty-two years later, in keeping with the “culture
of impunity” which remains inherent in the justice system of Kashmir,
the high court quashed the PIL and sent it back to the jurisdiction of
the sessions court in Kupwara. Hope was rekindled when the local court
refused to accept the closure report of the police and directed them to
reinvestigate the allegations within three months.
That hope, however, died soon, for a familiar pattern ensued, wherein
the investigation process became a practical joke played on the rape
victims. When they reached the police station with their counsel to
record their statements on the date decided by the superintendent of
police in Kupwara, they were kept waiting for hours, only to be told in
the end that the schedule for recording statements had been changed.
They were sent back without any alternate date being announced. Later,
the time period for investigation was extended by three months. As per
media reports, in an apparent attempt to interfere with the process of
investigation and intimidate the plaintiffs, a few army and intelligence
officials visited the twin villages in June; villagers also alleged
that a government official had offered them money to stay silent (
Greater Kashmir
2013). Till date, in contempt of the court order, no investigation has
been carried out. In an apparent attempt to further delay the process,
the army has filed a review petition before the Kupwara sessions court,
challenging its order. In one of the hearings on the review petition,
the army counsel calls this process “a pre-planned, politically
motivated game against army”, and that the “statement of victims are
stereotyped and like recorded rotten stereo sounds that play rape all
over again” (
Rising Kashmir News 2014).
The Kunan-Poshpora case exemplifies not only the legitimisation of
human rights violations in the Kashmir Valley by security forces in the
name of “national interest” and “counter-insurgency”, but also the
structures of impunity which pervade all levels of the criminal and
justice system in Kashmir. It exposed the cover-ups by investigating
agencies, the inefficient and unresponsive judiciary, biased
“independent” commissions, intervention by the army and intelligence
agencies to subvert the justice process, and finally, the most damning
denial by the Indian state, which labelled the claims of the survivors
of rape a “massive hoax orchestrated by militants and their
international allies aimed at reinscribing Kashmir on the international
agenda as a human rights issue” (Asia Watch and Physicians for Human
Rights 1993).
Culture of Impunity Continues
As we see in Kunan-Poshpora and many other cases, the Indian state
and its military apparatus continue to deny that the sexualised violence
committed by its military and paramilitary forces is systematic and
widespread. India remained silent when a Human Rights Watch report in
1994 revealed a high incidence of rapes in Kashmir, and that rape was
used as a means of targeting women whom the security forces accused of
being sympathisers of militants (Human Rights Watch 1993). It gave the
same silent response when the United Nations (UN) reported that in 1992
alone, 882 women were reportedly gang-raped by its security forces in
Kashmir.
1 Appeals by international human rights groups and UN
bodies have been continuously ignored or refuted by the Indian state.
This unabashed denial and silence is a continuing pattern, which
Kashmiris are well accustomed to by now.
This condescension, by trivialising the issue to the acts of a few
delinquent soldiers, is also reflected in the manner in which the
military, the executive and the police in Kashmir respond to incidents
of rape and molestation. Allegations of rape were rarely acknowledged by
the authorities; a very small number of cases were investigated, and
punishments were awarded to only a negligible number. In most cases
where the military court of inquiry found the alleged officers guilty,
the maximum punishment meted out was suspension, and the findings and
punishments of the court martial were never made public. In many cases,
the police actively aided the military in blocking the human rights
claims of rape survivors.
In a recent case from 2011 in the Manzgam area of Kulgam district, a
25-year-old woman was allegedly abducted, raped and tortured by army
personnel. To cover up the incident, the investigating agencies cordoned
off the area and made it virtually impossible for media and human
rights activists to talk to the victim (
Kashmir Dispatch 2011).
Eyewitnesses told the media that the Central Reserve Police Force (CRPF)
and the police enforced an undeclared curfew, and a contingent of
troopers and police were deployed in the village to prevent people from
taking to the streets and staging demonstrations. The police further
twisted the case, coercing the victim to change her statement, and
declaring that she was suffering from mental illness. During a visit to
her village a year and a half later, her family refused to talk and
stated that she was not available. However, neighbours disclosed that
the victim was very much present in the vicinity, but was not allowed to
speak to anyone. They also rubbished the reports of her being “mentally
unsound” and added that she still talks about getting justice, but has
been silenced by the immense pressure put on her and her family by the
army.
2
The rape and murder of sisters-in-law Asiya and Nilofar in Shopian in
2009 (Chatterji et al 2009) is another example of a diabolical scheme
hatched by the police and the state to obstruct the course of justice in
an instance where all the evidence indicated the involvement of the
security forces. Early events of the case – the inordinate delay in
filing an FIR, biased investigations, the systematic tampering of
evidence, and insinuations made by the chief minister of the state
towards a “case of drowning” – clearly reflect a “culture of collusion”
in thwarting an impartial probe. Although a post-mortem report declared
that both women had been raped and murdered, subsequent judicial
commission and Central Bureau of Investigation (CBI) reports thwarted
this claim and declared that the women had drowned to death. What is
even more reprehensible is that the only charges framed were against
those who tried to get justice for the women and differed with the
findings of the CBI – namely the doctors, public prosecutors, members of
the Bar Association, witnesses, and family members of the victims, for
having acted under the influence of “separatists” and consequently
falsifying evidence, or intimidating witnesses.
Similar allegations were made in two rape cases from Anantnag and
Baramulla. Responding to RTIs sent to the Ministry of Defence in 2012,
the ministry replied that they had denied permission for sanction to
prosecute the officers, and stated, in one case, that “the lady was
forced to lodge a false allegation by anti-national elements”, and in
the other, “baseless and framed with mala fide intentions to put army
on the defensive” (Muzamil 2013). Clearly, by discrediting the
allegations of rape, justice is being torpedoed for victims of rape in
the name of national security.
Such a biased and callous approach has forced national and
international human rights groups to call upon the Indian state to
support independent and swift investigations, and to bring the cases
under the purview of civilian courts. Similar recommendations were
provided this year by the Justice Verma Committee, constituted by the
central government (Justice Verma Committee Report 2013), which had a
mandate for recommending reforms in the sexual violence laws in India.
Referring to AFSPA zones, the committee suggested that members of the
armed forces or uniformed personnel must be brought under the purview of
ordinary criminal law if accused of sexual violence. Amnesty
International also calls for amending Section 7 of the AFSPA by
recommending that prosecution in cases of sexual violence by armed
forces should not require permission from the central government.
3
Other rights groups call for a revocation of AFSPA, as they claim that
AFSPA is the biggest hurdle in the way of sexual violence survivors
seeking access to justice.
Jurisdiction of Trial
When the apparent impediments to the judicial process in these cases
are juxtaposed with the analyses and suggestions made by the human
rights groups, it indicates a few structural limitations which the
discourse suffers from. While questioning the jurisdiction of cases
under military authority in conflict zones, justice Verma’s report and
those of other human rights groups stop short of spelling out how these
changes could realistically be put in place. The Indian Army, anywhere
in the country, anywhere outside India, or at a frontier post, is
governed by a central law, The Army Act 1950, according to which
offences like rape, murder, or culpable homicide committed against
civilians while on “active service” will be tried by a court martial.
The decisive role played by the Army Act becomes all the more crucial in
cases of conviction in AFSPA zones, as the AFSPA does not detail the
process of trial, referring back to its mother law in cases of
conviction. This is exactly what happened in the review petition filed
by the army in November 2013 against the reinvestigation order on the
Kunan and Poshpora mass rape case. Instead of invoking AFSPA in the
petition, the army has invoked Section 125 of the Army Act, saying that
the competence of filing the final charge sheet to decide whether the
accused should be tried through court martial or criminal court lies
solely with the army (Sofi 2013).
Therefore, any demand for amendments in the context of jurisdiction
in sexual violence cases against armed personnel will first require an
amendment to the Army Act, an argument conspicuous by its absence in the
existing analyses and recommendations.
Let us examine another recommendation – a change in Section 7 of
AFSPA. Say, hypothetically, the state notifies that prior permission
will not be required from the central government in sexual violence
cases. This change may expedite the process of investigation and arrest;
however, the prosecution will still go for a court martial, and in
Kashmir, trial under military authority has been nothing but a travesty
of justice. In a court martial that took place in 2004 in Handwara
district, where an army major allegedly raped a mother and daughter from
Badar-Payeen village, the army held the major “guilty of misconduct”,
and dismissed him only on charges of molestation (
The Times of India 2005). This judgment was never made public, and neither was the post-mortem report. During a discussion, the husband
4
revealed that the proceedings of the court martial were extremely
intimidating; they were even asked by the court to choose the punishment
for the major! In his words, “Court said they can do only one thing at a
time, either the major can be sent to jail or he can be terminated. The
decision is yours and whatever you will tell us, we will follow that.”
Such a mockery of the rule of law by court martials only refutes the
dubious claims of the army that their “own mechanisms” are sufficient to
mete out punishment to the guilty.
Clearly, amending Section 7 of the AFSPA on its own will have only a
marginal impact on the claims of sexual violence survivors in Kashmir.
Even if a change in the jurisdiction of trial – from military court to
criminal court – occurs concurrently with a change in the said section,
it is very difficult to judge whether this will provide an effective
remedy.
Inherent procedural impediments at the level of the police,
impediments imposed by the military to obstruct investigation and
arrest, and the pattern of intimidation and threats see to it that cases
rarely reach the trial stage. Kunan-Poshpora, Shopian, Manzgam, and
many other cases highlighted the culture of collusion, wherein at
various points during the case, the police assisted the military in
undermining the legal process. In a widely documented case of mass rape
in Kangan in 1994, the police refused to file an FIR because they did
not want to be an “annoyance to the army”, despite detailed affidavits
clearly indicting army members on charges of rape.
5
The judiciary, too, has been questioned repeatedly on its efficacy in
addressing cases of sexual violence committed by security forces. A
report by the Yale Law School (Bhatnagar et al 2009) attributes this
inability of the judiciary to the highly sensitive conflict situation in
Kashmir, where executive and military prerogatives are regarded as
sacrosanct. The judicial process in cases of human rights violations has
established that even when the judiciary attempts to function
independently, in the due process it ends up pledging to the structures
of impunity. Further, as per the law, the courts can, on their own
initiative, order inquiries into human rights violations.
However, in Kashmir, where some international rights groups have
claimed that sexual violence committed by security forces is the highest
in any conflict zone,
6 the courts have purportedly avoided
exercising their powers. The high court’s response to the PIL filed on
Kunan-Poshpora reflects its allegiance to other forces of impunity. In
an attempt to fortify its “subservient position”, the judiciary in
Kashmir has also colluded with the interests of the military. The Jammu
and Kashmir High Court quashed the verdict of a court marital in which
an army captain, Ravinder Singh Tewatia, was convicted of raping a
mother and daughter in Banihal village of Jammu division, and was
sentenced to seven years of rigorous imprisonment and dismissal from
service (Puri 2003). By setting aside the court martial ruling, the
court ordered the release of the accused, making it one of the rarest
cases. Obviously, neither the army nor the state challenged this
appalling verdict.
Therefore, in Kashmir, where the state has avoided its democratic
accountability and where the police and judiciary have blatantly
colluded in abetting oppression, addressing the impunity question will
remain a challenge even if Section 7 is amended, or the jurisdiction of
rape by armed personnel is brought under criminal court.
Dismantling Cultures of Impunity
In spite of the instrumental role played by the police and the
judiciary in derailing the justice process, there is an inadvertent
omission of these structures in the recommendations and ways suggested
to address the impunity in sexual violence committed by the army in
conflict zones. Demanding amendments in the AFSPA and the removal of
sexual violence cases from military jurisdiction will only mean
something to sexual violence survivors when there is a concurrent
commitment to dismantle the complex structure of violence and impunity
in its totality. For this, we need to critically interrogate the
structures of impunity and examine in detail how they process and
function, both independently and in conjunction with each other.
Therefore, besides debating the role of the military apparatus and
extraordinary laws like the AFSPA, a shift in the discourse is
imperative. This shift will unravel the role of the various arms of the
state (police and judiciary) in abetting coercion, and the important
role of the Army Act in obstructing the rights of sexual violence
survivors.
Structures of impunity can only be challenged when there is a
collective voice, not with recommendations made in isolation.
Dismantling the “culture of denial”, which characterises India’s
response to sexual violence cases in Kashmir rather than invoking any
accountability and responsibility on its part, calls for a discourse and
praxis that symbolise a joint effort from defenders of human rights in
Kashmir and other parts of India, as well as internationally. The aim
should be to develop a set of comprehensive, non-negotiable and hard
demands that target structural impediments at all levels of the justice
system. Therefore, a paradigm shift becomes imperative. There can be no
isolated demands, no piecemeal approach, or incremental ways to address
the impunity question. Until then, ensuring justice to survivors of
sexual violence by security forces in Kashmir will remain a vexed
question.