Kashmir – Hearing of the Public Interest Petition on the Mass Rapes at Kunan Poshpora #Vaw

Two days in the Srinagar High Court: Shrimoyee Nandini Ghosh

May 10, 2013

 

 by SHRIMOYEE NANDINI GHOSH, 

Impressions of the Hearing of the Public Interest Petition on the Mass Rapes at  Kunan Poshpora

Day 1: 7^th May 2013: I happen to be in Srinagar. I hear through a friend that a Public Interest Petition has been filed by a group of fifty odd Kashmiri women, before the Srinagar Bench of the High Court, asking that the Kunan Poshpora mass rape case be reopened, and re-investigated. It would take a group of very odd women indeed, to ask for something so far fetched. They are students, housewives, teachers, doctors, some of whom were not even born in 1991, when the rape took place on the ‘intervening night’ (as such records always read) of the 23^rd and 24^th of February during a ‘search and cordon’ operation by personnel of the Indian army.

An FIR [FIR no.10/1991, Trehgam Police Station] about the incident was filed. On 21^st of October, 1991 according to police, in RTI applications, and before the State Human Rights Commission, the case was closed as ‘untraced’, (as such records always read). Some survivors andfamily members approached the State Human Rights Commission, seeking relief. The SHRC took suo moto cognisance of the case as well, and passed an order on the 19^th of October, 2011 recommending that the case be reopened and re-investigated, that the survivors be given a ‘minimum compensation’ of at least Rupees 2 lakhs, that the Director of Prosecutions and other government and administrative officers responsible for ‘scuttling the investigations ‘be criminally prosecuted. So far so good. One and a half years passed, and nothing happened. No reopening, no investigation, and certainly no prosecutions. Oh… except 39 of the 40 named survivors received Rupees 1 lakh in cash as compensation, shortly after the SHRC decision. (An important fact, not to be missed, for reasons that will become clearer hereafter).

Then, on 20^th April 2013, our fifty odd women file their PIL. On the first date of hearing, which was about a week ago, the Court asks two questions, which they want answered before they admit the Petition: 1) Is Public Interest Litigation really a remedy, in cases such as this? (2) Can a PIL be filed after twenty two years? The answers are obvious (Yes, and Yes) but the questions have  have puzzled the court, and must be answered. Today, the 7^thof May, a new bench assembles to hear the Petitioners’ response.

It’s 9:55 am and I walk through the High Court gates. I am subject to the most thorough frisking I have ever been through—they are scrupulously polite, but extremely suspicious, especially of my under-wired bra. They poke and prod, and feel me up good and proper. Later I hear that there were not quite so polite, with one burkha wearing Petitioner, who had her veil forcibly removed.

10:20 am: The Courtroom, (wood panelled, sky-light lit) is beginning to fill up. I am in the third row, behind the lawyer’s padded seats– a good spot.Behind me are some journalists. I strain to overhear them. They’re talking of the case in whispers.

10:45 am: Anxiously waiting for the lawyer. Where is he? Ah, he arrives at last. Thank God.

10:55 am: So many women in court today. Are they all here for the same reasons as me? I smile at some familiar faces. I doodle through a complicated Income Tax matter, a Civil Appeal, and a couple of pass-overs. When will they ever get to it? 

11 am: Item Six. Uzma Qureshi and othersvs State. That’s it! That’s the one. The lawyer for the petitioners, Parvez Imroz, convenor of local human rights group JKCCS, stands, and begins his submissions. He reiterates their questions,  (in case they’ve forgotten, as judges are wont to do) and hands over a compilationof cases on the point.The judges are conferring amongst themselves. Mr Imroz continues. He explains how the Indian Supreme Court has repeatedly held that any member of the public can approach the Court on a matter of public importance. That this is really the meaning of Public Interest Litigation.The Bench is impatient. The Junior Judge (the one who was on the bench that asked the original questions) says: ‘You have missed our point. We are not questioning your locus.’

The Chief Justice says: ‘Of course, rape is a heinous crime. There is no doubt.’ The Junior judge nods.  They confabulate again. The Junior Judge appears to be leading the discussion. He has a lot to say. He used to be the former Additional Advocate General I hear later. Very good at deferring, delaying, denying. He did it with the case against Ex-Director General of Police, Kuldeep Khoda, which never managed to get past the admission stage. But I still want to believe the best of them. Tell us, they ask: ‘Does this court have the power to direct that SHRC decisions be implemented?’

I want to interrupt: But, But… That wasn’t your original question! That’s not fair! How can you change your questions? But they are judges, creatures of whimsy, like the best of us. Today they have a different question.

Mr Imroz is  unperturbed. ‘Let me assist your lordships on the point’, he says.  He speaks of the complete non-implementation of the SHRC orders, the non-filing of the Action Taken Report before the SHRC.He says that 22 years have passed, without even a basic investigation into what happened that night. He points to a Madras High Court Judgment, something about SHRC decisions, but is interrupted, before I can catch his drift.The Bench clearly has something else on their mind. The Junior Judge is furiously consulting some notes he seems to have already prepared. Mr Imroz mentions that the petitioners—a group of Kashmiri, ‘public spirited’ women, have just visited the village. It appears some of the victims have recently received Rs. One Lakh as compensation, though the SHRC decision recommends at least Two Lakhs.

Suddenly, the Bench is all ears. The Junior Judge leaps in. ‘Ah! So they have implemented some part of the SHRC recommendation?’ Mr Imroztries to stem the tide: ‘That is not the point at hand. In fact, I do not know the extent…What we are asking for… If your Lordships kindly turn to page…’ But it’s useless. The Bench has seenthe light. It addresses a state lawyer, who happens to be in Court, seated right next to Mr Imroz. He jumps to attention when called.‘We want to see the file on the matter’, they say.‘Some of the recommendations seem to have been implemented. We want to know to what extent. Let the Advocate General  come tomorrow with the entire file.’ ‘Certainly M’lord’, the state counsel is all nods.

Are you kidding me?.Tomorrow? You want the state to produce all their records tomorrow? The same state that has done sweet fuck all for twenty-two years?‘And,’ the Junior Judge adds as a post-script: ‘We’ll also hear the Advocate General on the maintainability question.’‘This is Bull shit!’I say aloud. I am hushed by my neighbour. We’re in Court, I’ve forgotten my place.The Chief Justice has the grace to seem embarrassed by the way things have unfolded. ‘It is a sensitive matter, you know’, he mutters, Yes, I want to say. We  know. Mr Imroz bows, accedes to a higher power.The next case is announced. About sixty people stand up as a body, and leave. The Courtroom empties.

People in the corridors are talking. What exactly happened? Who said what? Why? What now? Some old hands hold court: It’s a delaying a tactic. An oldie, but a goodie. Hearing after hearing. Wearing you out, just on admissibility. This is legal limbo. Neither here nor there, not in, not out. Making you jump through hoops. Just to get your foot through the damn door. In this case, in the Kunan Poshpora rape, they want to see the whole state file, even before admission? And then, they take suo moto cognisance on the Amarnath Yatra, and the LPG shortage.

Some young ones are more outraged: Just because, they may have paid out some money, after twenty years? Why are they going on this compensation point? Surely, it’s beside the point? Under what law? What rule? By what logic, or what common-sense can it be of any importance? Why keep us hanging like this? Why didn’t they admit it, then issue notice to the state to bring the record? Or why can’t they just dismiss it? And then we’ll see what to do next… We can go to Supreme Court. At least, it would be a decision. The battle-hardened reply: Oh no they’re too smart for that. It’s a waiting game. They have done it before. Sailan, Machil, Khoda…the names of so many massacres, so many cases, so many days in court. The air is thick with it, my head reels.Today is the twentieth anniversary of the Khanyar Massacre. I can’t process it all. People can’t stop talking

We troop back to the JKCSS office, still talking. I stop on the Bund for Golgappas. I meet some of the petitioners, a young and angry bunch. They want to know, why the rape of a single Indian woman can have the whole country in an uproar, but a case about the rapes of fifty (seventy? more? We may never know exactly how many women were raped that night) Kashmiri women must prove its ‘public importance’ in three separate hearings.  Back at the office, it’s chaotic. Arguments have to be redrafted, cases found, precedents cited. We’re back in court tomorrow. Some people from the village of Kunan Poshpora arrive: four wizened old men, and one very vociferous middle aged one. They came to the court as well, but I had missed them in the crowd. They tell us that on the 25^th of April and 2^nd of May, twenty three of the villagers were summoned to the Court of the Judicial Magistrate in Kupwara, and their statements about the case were recorded. They are very categorical and pull out several crumpled pieces of hand -written papers from their pockets as proof,  but we’re not entirely sure of the whats or whys of it. After some protracted conversations between the lawyer in Kupwara, and the activists in Srinagar, over a very bad (and probably tapped) phone line we realise that though the case has been closed on the police files in 1991, the ‘closure report’ has never been officially filed. It seems like the buzz about the PIL, has made the police suddenly awaken to this fact. They want to file an official closure report, and in a hurry. Hence the flurry of summons.‘Typical!’ , someone says. I am naïve enough to be shocked.

I help draft affidavits, averring that even though, yes, it is true they have received compensation, they still want ‘complete justice’ (as such affidavits always read). We solemnly assert on behalf of the victims: ‘We want the investigation done by an independent agency, we want the perpetrators punished.’ The old men will get these affidavits signed, and bring them to court, by ten am tomorrow. The journey to Kunan Poshpora takes four hours. They want us to hurry up, and finish drafting the papers already, so they can get home before it’s too late. But they constantly get in the way of us legal ones –the names on the record are all wrong (as such names always are): X is the daughter of Y, not his wife- ‘That is irrelevant’,  we say. Four of the women are dead we realise, once the affidavits are drafted, the names tallied, the stamp papers bought.They have to be redone. One of the people in the office, gives the villagers a talk about not hoping for too much. ‘Nothing may come of it.’ ‘ Yes,’ they say. ‘We know.’

Tomorrow, the 8^th of May, is the date of the next hearing. I wait with a bad feeling in my gut. But I still hope.

Day 2: 8^th May 2013 

Today I go to the JKCCS office first. Scenes of confusion. The  forty affidavits have been signed / thumb printed, but more inconsistencies have been discovered. The villagers point out each one, they have learnt the hard way in the State Human Rights Commission, that a misspelled name can cost a lot. Whitener is liberally applied. Printing on stamp paper is a bitch; one always gets it the wrong way around. Finally, the papers are ready, and we walk to the High Court.

10:35 am: We walk in to the Chief Justice Court, as a huge group of people troop out. The Court has been hearing the ‘Dal Lake matter’, concerning the unfortunately named LAWDA (Lakes and Waterways Development Authority) and the city master plan. When we enter, the Bench is empty. The Judges are in chambers conferring.

10: 45 am: The Court is not as full as yesterday

11:00 am: The Judges re-enter, we all stand. Mr Imroz has stepped out for a cup of tea. Someone is sent to fetch him. The Judges begin with their list. The Kunan Poshpora PIL shall be heard at the end of their Admissions list, since it was only taken on board yesterday. The listed matters drone on.

11:35 am: An interlude in the tedium. On a matter about the inauguration of public park, the Chief Justice remarks: ‘It should not be some one hi-fi. When I was in Punjab, a bridge was to be inaugurated, and we ordered that the oldest labourer should cut the ribbon. His statement was in the press. He said he had only been garlanded twice in his life: once when he got married, and next when he inaugurated the bridge.’

11:45 am. I am bored and hungry. An administrative appeal about Promotions, an urban zoning matter about illegal constructions, drag on endlessly. Seated next to me is the Advocate General’s court clerk. He is reading his boss’s copy of the Kunan Poshpora Petition. I read over his shoulders. In the margins against the first two prayers (for reopening and re-investigation, and criminal prosecution of Wajahat Habibullah, the then Divisional Commissioner for his rlein the cover up) it says in bold letters in ball-point ink: NO. NO.

12 noon. The Kunan Poshpora case is up. The Advocate General is on his feet, a crew-cut junior by his ear. He addresses the question of maintainability, reeling off sections from the Protection of Human Rights Act. His point is that the act says the SHRC decisions are merely recommendatory. That the SHRC itself should approach the Court, ‘Who are these Petitioners? What is their Locus?’ Then he talks about compensation. He says: ‘The Government is going to hold a meeting on 14^th of May, at 3 pm. It is under active consideration. The agenda, the timing is already fixed’ – a bureaucrat passes him a file, which he passes on to the Court. 

This is a shocker! The survivors maintain that they have been already paid compensation of Rupees 1 Lakh, shortly after the SHRC case ended. We just filed their affidavits to that effect. Later, in the office the details I had missed become clearer to me. They were paid Rs 1 lakh in cash, all thirty-nine of them (for reasons that are not clear, one did not receive the money) by the local MLA (now Law Minister) in his official residence, in the presence of the local Tehsildar. Thirty Nine Lakhs in cash! Where did it come from? Why was it paid? Why will the Government not acknowledge this payment? We still don’t know the answers, but we can guess.

The Advocate General moves on to the criminal proceedings. He says that the matter is presently before the Judicial Magistrate Kupwara, that he is examining the Police Challan. Witnesses have been summoned. This, we have been expecting, from what the men from the village told us. The Advocate General makes the mistake of saying, the Court “cannot” take cognisance when the Magistrate is seized of the matter. The Chief Justice takes offence ‘You should not use the word cannot in relation to the Court. Especially, a person in your position. You cannot tell the Court what it can or cannot do.’ The Advocate General’s apologies are perfunctory. The Bench wants to hear more on the question of maintainability, ‘Do you have any authorities?’ The Advocate General fumbles. His junior passes him some Judgments. The Advocate General reads from them, they are all on the question of whether a High Court can be approached, when a matter is pending before a lower court. He never explains, why  if the case is still pending before the Magistrate, the FIR has repeatedly been referred to in the past, as ‘Closed as Untraced’.

Now, it’s Mr Imroz’s turn. He points out judgments on the question of implementability of SHRC decisions. The Madhya Pradesh High Court has held that even though SHRC decisions are recommendatory, the Court can take independent cognisance of their findings– the human rights, and constitutional violations they disclose . He continues to the point about reopening, and monitoring criminal investigations, and mentions Vineet Narrain’s case  on investigations into the Hawala scam. The judges want him to refer to a specific paragraph. He rifles through his pages. Then, he mentions the affidavits, but they haven’t been formally  registered yet, so he cannot fully rely on their averments, which put lie to his ‘Learned Friend’ the Advocate General. He ends by saying, ‘Crime Never Dies’—the Judges nod in recognition of a well worn legal cliché. The limitation question does not interest them anymore.The Court reserves the matter for orders. They will not pronounce immediately on whether the case can be admitted.

We file out. The buzz in the corridors today is more subdued. Is it a good sign, this reserving for orders?What does it portend? At least they are going to pass orders, no more proceeding without even admitting the case. No more legal limbo. We can only hope, while we await further orders. And what about the money? How will they explain that?

The villagers seem to find it hilarious, that the Government now claims never to have paid them. They carefully count the copies of the affidavits we have prepared, and put them away in a plastic bag full of other papers, before they leave the office.

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