KASHMIR REPORT The present discourse addressing the culture of impunity regarding sexual violence by security forces in Kashmir suffers from a structural limitation - its fixation 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.
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.
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”.
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”.
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.
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. 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.
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.
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”. 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.
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. This judgment was never made public, and neither was the post-mortem report.
During a discussion, the husband 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.
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 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, 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.
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.
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