Jammu and Kashmir : CDRO Statement on Kupwara court’s order for reinvestigation of mass rape case of 1991

July 4, 2013

Coordination of Democratic Rights Organisation (CDRO) welcomes the decision of the Judicial Magistrate, Kupwara (J&K) on 18th June 2013, asking for “further investigation to unravel the identity of those who happen to be perpetrators” of mass rape which took place in the two villages of Kunan and Poshpora in the North Kashmir district of Kupwara, on 23-24 February 1991.

Kunan-Poshpora witnessed mass rape of over 40-53 women allegedly by the soldiers of the Army’s 4th Rajputana Rifles of 68 Brigade. After the incident in 1991, police had lodged an FIR almost a month later on 18th March 1991, under section 376, 452 and 342 at police station Trehgam against the Army. But making a mockery of S 173 CrPC which mandates submission of a closure report once investigations are complete it took the J&K police all of 22 years to file the closure report on 30th March, 2013.

The shoddy job of investigation becomes also apparent from the fact that in March 1991, medical examinations were carried out of 33 women victims, and only 21 statements of victims recorded under S 161 of CrPC. Similarly, out of 125 personnel belonging to 4th Rajputana Rifles who participated in the operations on February 23-24th, 1991 only 19 personnel’s statements were recorded under S 161 of CrPC, whereas witnesses had mentioned that there were more than sixty soldiers who participated in the heinous crime. What was also ignored by the police was the torture of the men-folk of Kunan-Poshpora. Statements under S 161 of Cr PC were recorded of just thirteen male members. Within seven months, on 23rd September 1991 the Director Prosecution informed the SP (Kupwara) that the case was “un-fit for launching criminal prosecution”. The Director Prosecution knowing that police did not hold an identification parade chose to blame the women for not identifying the culprits! The matter was then put in a deep freeze. The BG Verghese led Press Council of India (PCI) team, meanwhile, which visited Kashmir in June 1991, helped this subversion of justice by claiming that charges against the army were “well-concocted bundle of fabricated lies”. In turn the J&K government closed the investigations terming it as “untraced”. It was this that forced the victims to turn to the SHRC in 2004, which gave a ruling recommending setting up of a SIT to look into this matter in 2011.

The SHRC had observed in its judgment on 16th October 2011 that “right from February 1991, all successive governments and district administrations have been guilty of callous, negligent, insensitive and indifferent attitude towards the victims as if nothing has happened in Kunan-Poshpora on the intervening night of February 23 and 24, 1991”. It held that Director General of Police “tried to push the collective crime committed by Army personnel’s under the carpet…”

It was when post SHRC order a group of 50 women petitioners initiated a process to file a PIL in the J&K High Court that the police decided to hurriedly file a closure report on March 30th 2013 before the judicial magistrate of Kupwara just three weeks before the PIL was filed on 20th April, 2013. It was done in such hurry that the closure report neither provided a list of victims (male as well as female) nor a list of witnesses. However, this step of the J&K police prompted the High Court in 14th May 2013 to ask the petitioners that they should move the judicial court in Kupwara. The victims of the incident in Kunan-Poshpora villages filed a protest petition in the Kupwara court on 10th June 2013, against the police’s closure report. On 18th June, 2013 the Judicial Magistrate JA Geelani ordered investigation by a police official not below the rank of Senior Superintendent of Police (SSP) within a time-bound period of three months. But he rejected the demand for SIT claiming that this did not fall within his jurisdiction. Although, the SHRC and the High Court recommended constitution of a SIT headed by a SSP rank officer no heed was taken by the executive.

Kunan Poshpora is one among hundreds of cases of mass rape that took place in J&K. This is a rare instance of a case of this nature where “further investigation” has been ordered. But it took 22 years of relentless struggle by Kashmiri groups to reach even this far where further investigation will ensue. Meanwhile, in last 22 years five of the victims died and almost everyone one of the living suffered. But what the efforts of Kashmir’s human rights groups achieved because of their perseverance is the emergence of the 50 women from their shadowy existence to confidently and with great dignity confront their perpetrators. Shame and humiliation once bandied about them has been replaced by the women turning against the perpetrators to shame and convict their rapists and torturers.

Although, CDRO welcomes the step taken after 22 years, we are conscious of the uphill task ahead. In the first place the judicial magistrate ordered fresh investigation by the same police department (not even SIT), which is guilty of closing the investigation prematurely and of suppressing evidence. There are other imponderables lurking around in shape of conflict between police summoning 125 personnel of 4th Rajputana Rifles 22 years after the crime was committed, with Army certain to claim helplessness in locating its personnel as well as disputing the jurisdiction of the police to summon their personnel. There will also be battle for jurisdiction between civilian court and Court Martial, if ever a charge-sheet is filed. But above all the judgment in Zahid Sheikh and Pathribal cases recently by the Supreme Court cocoons the armed forces personnel. In the former the period of active service extends for 24 hours. And in latter it is held that any act committed during “active duty” will be presumed that armed forces personnel act in “good faith”. Therefore, struggle for justice will be tortuous, long and far from easy.

What is equally disturbing is the fact that India’s criminal jurisprudence neither provides for crimes specific to armed conflict situations nor defines rape which takes place during armed conflict in accordance with the international convention which sees them as being a deliberate policy to torture and humiliate a people. So the infirmities of Indian law to deal with crimes during the period of armed conflict exacerbates the indifferent and callous attitude of the authorities at whose behest military suppression takes place and war crimes/crimes against humanity inevitably follow.

So while we applaud the perseverance displayed by Kashmir’s brave civil liberties groups who fought hard to reach this far, we also remain cautious because India’s record in bringing its own armed personnel guilty of perpetrating horrendous crimes to justice is miserably low. We urge democratic minded people, therefore, to stand by Kashmiris in their fight for justice by extending solidarity with their struggle.

Kranthi Chetanya (APCLC, Andhra Pradesh), Paramjeet Singh (PUDR, Delhi), Parmindar Singh (AFDR, Punjab), Phulendro Konsam (COHR, Manipur) and Tapas Chakraborty (APDR, West Bengal)

(Coordinators of CDRO)

Constituent Organisations: Andhra Pradesh Civil Liberties Committee (APCLC); Association for Protection of Democratic Rights (APDR, West Bengal); Bandi Mukti Morcha (West Bengal); Committee for Protection of Democratic Rights (CPDR, Mumbai); Coordination for Human Rights (COHR, Manipur); Human Rights Forum (HRF, Andhra Pradesh); Manab Adhikar Sangram Samiti (MASS), Assam; Naga Peoples Movement for Human Rights (NPMHR); Organisation for Protection of Democratic Rights (OPDR, Andhra Pradesh); Peoples’ Committee for Human Rights (PCHR, Jammu and Kashmir); Peoples Democratic Forum (PDF, Karnataka); Peoples Union For Civil Liberties (PUCL, Chhattisgarh); Peoples Union For Civil Liberties (PUCL, Jharkhand); Peoples Union For Civil Liberties (PUCL, Nagpur); Peoples Union For Civil Liberties (PUCL, Rajasthan); Peoples Union For Democratic Rights (PUDR, Delhi); Peoples Union for Civil Rights (PUCR, Haryana) and Campaign for Peace & Democracy in Manipur (CPDM), Delhi