Shrimoyee Nandini Ghosh

10 May 2014, Saturday

It is two days after the parliamentary elections in North Kasmir. There has been stone-throwing in Sopore, and many boys have been picked up and detained. The town is tense, the troops are out. “There may be curfew,” we hear over the phone the previous evening, so there has been some uncertainty about whether we will be able to make it to Kupwara today at all. But after a few more late night phone calls, it has been decided that it’s worth a try. And so here we are, at 8:00am, on our way to Kupwara one more time in a little orange Maruti Swift: four people and three large bags bursting with court files, books and documents.

Sexual assault and torture has been a well-documented and continuing feature of military policy, military culture and military operational procedure of the 700,000 Indian army and paramilitary forces. It has been deployed in “counter insurgency” operations in Indian administered Jammu and Kashmir, since the start of the armed uprising in the Kashmir valley in 1989. North Kashmir, viewed as particularly resistant to Indian rule, has experienced some of the heaviest use of rape as a weapon of warfare. On the night of 23-24 February 1991, during a search and cordon operation by personnel of the 4 Rajputana Rifles, 68 Mountain Brigade of Indian Army, there were extensive gang rapes of over fifty women, and torture of men in the neighboring hamlets of Kunan and Poshpora, in North Kashmir. Police investigations were initiated in March of 1991, but the case was “closed” without a final report before a judicial magistrate as required by law. Twenty-two years later, the final report filed by police was finally reviewed by a magistrate, and on June 18, 2013 further investigations were ordered by the courtred. Two applications in the Kunan Poshpora case are up for hearing in the courts today. The first, a revision petition filed by the Army against the magisterial order for further investigations is before the sessions judge in Kupwara. The second, a contempt of court petition filed on behalf of the survivors against the court-designated Investigating Officer Superintendent of Police Abdul Jabbbar—for failing to do proper investigations as ordered within three months—is listed before the magistrate. 

The legal team representing the survivors has had a bad run of late: the public prosecutor was replaced; the judge took leave; documents have not been provided in full. The conversation in the car is desultory, much of it about the election turnout in North Kashmir, and whether this will be another wasted trip. The weather is as stiflingly sullen as the mood. The road is heavily barricaded, but the guards wave us on lazily. Sopore is shuttered and deathly quiet; otherwise our journey is uneventful. When we get to the Kupwara Court Complex, the first news we hear is that the Sessions Judge is on leave. The Revision Application, pending since November 2013, is to be adjourned yet again. We make our way to the Magistrate’s court, to see what awaits us there. We are told to come back in ten minutes, but within five there is a frantic call, from one of the Kunan Poshpora Village Committee members stationed in court to “watch the board.”  “Come immediately! The matter has been called,” he says. We rush upstairs, past the crush of bodies, past the menacing stick-wielding man at the doorway who bars the way of anyone who cannot show what business they have in the court, past the many turned heads of lawyers and onlookers, and make our way to the front of the small, crowded lime green court room. I take my place in the left corner with my notebook in order to better hear what is said. In front of me, Abdul Ahad Shah, resident of Kunan, member of the village committee and torture survivor, is standing in the dock like a convict. Most names that are called out are those of the accused, and they are sent summarily to the dock. No one has explained to the harried court constable that this man is actually the complainant, not the criminal.

Arguments commence, as Parvez Imroz, lawyer for the Kunan Poshpora survivors, takes the magistrate through the complicated history of the case. There is the public interest litigation (PIL) filed by women in Srinagar in April 2013; the dismissal of the PIL as “premature,” since the police had simultaneously filed a closure report in the case twenty-two years after the investigations were completed; the previous magistrate’s order of June 18, 2013—refusing to close the case despite the State’s plea, since “further investigations” were warranted (which were to be completed within three months’ time); and finally and most forcefully, how the police has done practically no further investigations over the course of the last ten months. Instead, they repeatedly secured three-month extensions for themselves, doing so behind the survivors’ backs. He points to position articulated by the police regarding the investigations, which they had presented while seeking extensions despite giving neither notice nor copies of any documents to the survivors. The magistrate looks up from his papers at this. He granted the third such extension himself, in March of 2014. Imroz reads from the police submissions, noting that they have written merely five letters—to the army, and to various district and medical officials—over ten months. Besides this, they summoned villagers, who are not survivors, witnesses, or in any way connected to the case, including several deceased people to the police station. On another occasion, they summoned some of the survivors, and made them wait for five hours before telling them that their statements would not be recorded. They did not even bothered to take mandatory section 164-A Cr PC police statements from the survivors, who were located barely ten kilometres away. Even if the army refuses to cooperate with the further investigations, there are many other investigative leads available. “The entire investigation is an eyewash, a charade,” he says.  He becomes visibly angry, as he provides more details of the police’s “lackadaisical attitude.” “Five victims have already died,” he informs the court. The judge audibly draws a breath; the courtroom is absolutely still. “They have many medical problems. They are an ailing lot. It seems like the police are waiting for all the victims to pass away before investigating.” 

Mr. Imroz draws the Court’s attention to another example of “lack of seriousness” on the part of the police. They have, according to their own status report, written to the present Deputy Commissioner (DC) Kupwara and then to DC Srinagar to find out the whereabouts of the former DC, who held office in 1991. They have written his name wrong in the letter, despite the fact that ex-DC S.M. Yasin Andrabi is a well-known public figure who has recently been in the local and Indian news media for a widely reported speech he made on the occasion of the twenty-third anniversary of the Kunan Poshpora mass rapes. “So many journalists and activists have been able to find him, but apparently the police is still unable to,” Imroz sneers. Around the court room, people shake their heads, exchange glances and shrugs. Imroz continues, mentioning the gravity with which sexual assault has been viewed in recent jurisprudence—the setting up of fast track courts, the Verma Committee’s Report,  the Sexual Assault Amendments of 2013. He hands over a Supreme Court judgment where the entire trial in a rape case was completed in eight months, whereas here it took twenty-two years to file a final report, and the trial has still not commenced. The Judge writes something down. Imroz says that the repeated extensions, without conducting any meaningful or substantive investigations, are making a mockery of the judicial process. Extensions cannot be issued mechanically, he insists. And when they are given extended time to investigate, the police must investigate, or they are liable to be held in contempt. He ends by reminding the court of the judiciary’s responsibility in taking a strong stand in ensuring its orders are obeyed; that the court is not helpless when it’s orders are repeatedly flouted by the executive; and that a notice of contempt must be issued against the police officer in question. The magistrate raises procedural questions about the court’s powers of contempt, and the next step to be followed. “Can a time period be specified, by the magistrate?” he asks. Imroz urges that the court hold the police in contempt, rather than exploring the possibility of granting them yet more time, since contempt is what has been prayed for, and it is well within the magistrate’s powers. “Your Honor must look at the human aspect of the case,” he says. “All we are asking is that the police investigate the matter.”

Then it is the turn of Chief Prosecuting Officer (CPO) Ashiq Hussain to make his submissions on behalf of the police. The CPO is concise and fairly considerate, unlike on a previous occasion when he had argued in open court in favor of closing the case on the ground that the victims were unreliable witnesses. “It is a pathetic case,” he acknowledges. He adds, however, that the police have sought and been granted regular extensions by a competent court, and that the investigating officer is carrying out investigations with “fairness and due diligence.” “Twenty-three years have passed since the crime,” he laments. “This is why it is taking time to investigate.”  

I scribble a series of exclamation points next to this in the margins of my notebook. I wonder if the arrant absurdity of it all occurs to him as he says the words. The police failed to file the final report for twenty-two years, lied in RTI applications, and then did it again before the state  Human Rights Commission, stating that the case was officially “closed as untraced.” Now they  have claimed that their inadvertent procedural “delay” justifies further delays in the investigation. They accidentally forgot to file the final report in what is possibly the largest recorded mass sexual assault case in South Asia for about twenty-odd years, they innocently lied about it when asked, and now they seem to have forgotten that they had forgotten.  These sorts of ruses deployed by an occupying power are both banal and elaborate. “Delay” is not just administrative malaise in the courts of Jammu and Kashmir; nor is it that much bemoaned, chronic plumbing problem of backlogs and blockages that seems endemic to South Asian court systems—our shared legacy from the kagazhi Raj of laws, exceptions, files and paperwork. “Delay,” here, seems an altogether more malignant phenomenon: -a technique of continuous erasure, of everyday unexceptional impunity—the infinitely deferred denial not just of justice, but of history itself.

The Chief Prosecuting Officer continues his arguments. “The police may be asked to give a time frame within which they complete investigations, but the case for contempt is not made out,” he states. The CPO points out that the supreme court has held in various cases that magistrates have power to monitor investigations, but they must not interfere nor control the investigations in the day-to-day details. Imroz issues a brief rejoinder, and then the magistrate passes his order. He adjourns the case until May 24, 2014, for the filing of written arguments by parties. He notes that when the police file future applications for investigative time-extensions, survivors will be informed and their objections heard. 

We troop out of the court room and pile back into the car. Downtown Sopore seems to be getting back to its usual bustling self. There is even a small traffic jam near the bus station. We stop in the market for tea and buttered toast. We reenter Srinagar at 4:00pm, half-blinded by the dusts of a sudden, whirling wind storm that seems to have blown in from nowhere.

POST SCRIPT: Since this piece was first written, the contempt petition argued on May 10 was dismissed by the magistrate, who also granted the police another three-month extension to complete investigations by June 14, 2014. On July 1, the High Court at Srinagar passed orders reminding the State of Jammu and Kashmir of its constitutional responsibilities to the survivors of February 23-24, 1991, and asking it to “explore the possibility” of compensating the women survivors, stating that there was sufficient evidence to suggest that crimes took place on that night. It also asked for a “status report” from the police on the investigations. On July 5 2014, Justice Mufti Bahauddin Farooqui, who led the first team of human rights investigators that visited villages in March 1991 and recorded testimonies of fifty-three women survivors, passed away following a prolonged illness. Abli Dar, from the village of Kunan, who was subject to the “roller treatment” on the night of February 23-24 1991, and who had consequently walked on crutches since, had his leg amputated at the hip in mid May 2014. He died from complications following the surgery on June 11 2014.

Illustration by Divya Adusumilli

Shrimoyee Nandini Ghosh is a writer and human rights lawyer based in Srinagar, closely involved with the campaign for truth and justice for the survivors of Kunan Poshpora.