Vol – XLVIII No. 08, February 23, 2013 | Anuradha Bhasin Jamwal

There have been numerous allegations of rape by the police and armed forces in the Kashmir Valley ever since insurgency began in the late 1980s, but very few cases were ever investigated, prosecutions have taken place in a negligible number, and justice delivered in none. Even when cases are registered, the legal sanction required for prosecution, as per the provisions of laws like Armed Forces Special Powers Act, is never accorded. The Justice Verma Committee Report has addressed sexual aggression in confl ict areas such as Kashmir, Chhattisgarh and the north-east, where women’s bodies have been used as instruments of war by paramilitary forces, but can we hope for a change on the ground?

Anuradha Bhasin Jamwal (anusaba@gmail.com) is Executive Editor, Kashmir Times and a human rights activist based in Jammu and Kashmir.

Last month when the 600 page- Justice Verma Committee Report, suggesting not just the amendments in the criminal laws dealing with sexual assault, but challenging the very core of patriarchal power structures came out, it kindled some hope among feminist groups and groups working for rights of the marginalised communities including in the conflict areas.

In Jammu and Kashmir (J&K), barring the Sangh parivar and the armed forces, the report was by and large welcomed for its path-breaking recommendations on amendment of the Armed Forces Special Powers Act (AFSPA) to exclude personnel accused of sexual offences from immunity, from being prosecuted in a civil court, provided by this special law and also for recommending a complete review of the AFSPA. However, there was also a guarded scepticism with which the state, particularly the Valley, the worst hit by the impunity provided to men in uniform under AFSPA, responded. The social networking sites were filled with discussions with phrases like “too good to be true”, “doesn’t look like it will be implemented” or “don’t forget, Justice Verma is also the man who upheld the legal constitutional validity of AFSPA in a Supreme Court judgment in 2011”.

Historical Scepticism

The scepticism has a historical background as Kashmiris have been witness to promises and lip sympathy that never get translated into action in the last over six decades. From Nehru’s promise of plebiscite to Narasimha Rao’s “sky is the limit” assurance, from Vajpayee’s peace process to Manmohan Singh’s promise of zero tolerance to human rights abuse, in the collective memories of people in the Valley everything that sounds good is followed by disaster on the ground.

The historical inherent scepticism apart, there were valid reasons why the Justice Verma Committee Report would not generate enough optimism in the Valley. The state has always responded with a kind of obsessive protectiveness when it comes to saving the neck of the security personnel including the local police which does not enjoy impunity under AFSPA as happened in the Shopian rapes and murders of 2009 and the over 120 killings in 2010, in which police stand indicted but unchallenged by instruments of law. There is a belief that the government will find a way to wriggle out of at least this part of the Verma panel report to keep up with the tradition of going out of the way to protect men accused of human rights abuse including sexual offences. And so when on 1 February 2013 the central government came up with a hurried ordinance without the major provisions of the Verma report, given the presidential nod two days later to become a law for the next 18 days till Parliament could debate it, for the sceptics in the Valley it was a vindication of their cynicism. The Valley slipped back into its pessimism after a short-lived glimmer of half-hearted hope.

Sealed Fate of Rape Cases

At the core of this pessimism lies the sealed fate of the cases of rapes and molestations at the hands of security forces and the untold stories of similar harassment, buried behind the fear of stigma and ostracisation or lack of access to institutions of justice as also the shoddy legitimisation of such acts of sexual violence in the name of “national interest”, “counter-insurgency”, “in the line of duty” and “upholding the morale of the security forces” who enjoy blanket impunity for acts that cannot be justifiably defended. From the infamous gang rapes of Kunan Poshpora in 1990 to Shopian’s spine-chilling double rapes and murders, and the equally shocking cover-up by official investigating agencies, two decades of insurgency and counter-insurgency period in J&K are littered with cases that exemplify the victimisation and vulnerability of women in a militarised conflict.

There is a complete denial of the same in official circles and according to a former J&K director general of police (DGP), as stated in 2009, there are only 10 cases of rape reported by security forces. A publication of the United Nations, however, puts the number of rapes by security forces at 882 in 1992 alone. A report of the Human Rights Watch in 1994, stating that there was high incidence of rapes in Kashmir, documents the use of rape as a means of targeting women whom the security forces accuse of being militant sympathisers. The report also gives a detailed account of how in raping them the forces attempt to punish and humiliate an entire community.

Rape as a Weapon

One case of mass rapes in Shopian in 1992 typifies the official response. A government statement on the case maintains, “two of the women alleged to have been raped were wives of terrorists, viz, Takub Hussain, a platoon commander of Hizbul Mujahideen and Mohd Yakub a group commander of the same militant group”. Asia Watch maintains that one of the ways security forces in Kashmir use rape is as a weapon against women suspected of being sympathetic to or related to alleged militants. While we do not know whether such suspicions motivated the soldiers responsible for the rapes of these women, it is clear that the authorities intend to use the accusation that the women associated with “terrorists” – both to discredit the women’s testimony and implicitly at least shirk responsibility for the abuse. When countered with the Asia Watch report, the police officials maintain that Asia Watch has its own agenda to put the security forces in a bad light. The allegations, mentioned by Asia Watch, do not figure anywhere in the official records.

The manner in which official data on rapes in conflict is collated illustrates the callousness, deliberate or conditioned by an inherent prejudice. Statistics compiled by the crime branch of police states 936 women were killed by militants since 1990. One hundred and twenty-five of them were abducted and killed. Another 132 women were abducted and freed and many of these were also raped, though no numbers are as yet compiled. However, the cases of rapes by security forces are not even acknowledged. A top police officer some years ago maintained, there are only 20 cases of rapes registered since 1990 against security forces in which four cases were proved and 14 security men were punished. DGP Kuldeep Khoda in 2009, faced by the outrage over Shopian twin rapes and murders, reduced this number to 10.

Farce of Inquiries

While only a fraction of the cases of rape and sexual violence by armed forces are discussed in media and academic circles, the official denial continues, followed or aided by the farce of inquiries, probes and reports that are one-sided or never see the light of the day. The normal process of the law, starting with registering of a formal complaint in the police station, followed by a trial, is not the norm. The case is either simply hushed up or even if there is a magisterial probe, or an inquiry by a retired judge or a court martial proceeding – all in a bid to respond to public anger – they end up as an eyewash. The cases where the armed forces claim to have taken action in the courts of inquiry remain a poor joke, all at the expense of the trauma of the victim and her further ostracisation from society. In May 1990, Mubina Gani, a bride being taken along with her bridegroom and baratis after the marriage was solemnised, was raped in south Kashmir by the Border Security Force (BSF). Her aunt accompanying the marriage party was raped too. One man was killed and several wounded. A government inquiry held the BSF men guilty but the latter were never prosecuted. However, a BSF staff court of inquiry that held the men guilty “suspended seven men”. Normally, a person convicted for rape could get up to 10 years in prison if the normal Indian legal procedures are followed.

In yet another case, in November 2004, when a mother-daughter duo was allegedly raped by an army major in Handwara-Badar Payein, the case simply ended in an internal army enquiry which held the major “guilty of misconduct”. While these words were misleading, the post-mortem reports in the case were never really made public. The government inquiries are neither made public nor followed up with the security forces. The courts of inquiry by the security agencies, even if they hold their own men guilty, never punish them adequately. The maximum punishment given is suspension, or no more than the remark of “severe displeasure” gets recorded.

In a negligible number of cases, prosecution takes place. In none of them has justice been delivered. In some cases where the government has ordered inquiries mostly under judicial magistrates, or where security forces order their own court of inquiries, the findings and punishments are not made public, leaving victims to believe that such abuse is committed with impunity. The security forces are just not held accountable, and in many instances cases are not even registered against them. Even when cases are registered, the legal sanction required for prosecution, as per the provisions of laws like AFSPA, is never accorded.

Significant to Conflict Areas

This is why the Justice Verma Committee Report is significant with respect to Kashmir and other conflict areas since it looks into sexual aggression of a different kind in places like Kashmir, north-east and Chhattisgarh, where women’s bodies have been instruments of war by the paramilitaries which are supposed to protect them. The panel not only outright rejects the impunity that the soldiers enjoy for sexual offences and calls for an amendment in the law to exclude the mandatory central government sanction for prosecution of such offenders, maintaining that they need to be straightaway tried in the civil court of law, it also questions the very utility of the AFSPA that gives the armed forces this clause of massive impunity. The panel has called for a complete review of the law and significantly points out, “It must be recognised that women in conflict areas are entitled to all the security and dignity that is afforded to citizens in any other part of our country”. In doing so it has questioned the very biased role of the State in a place like J&K and has placed sexual violence in the centrality of the AFSPA discourse, which has been missing even from a Kashmiri perspective.

There has been strong opposition to the draconian law imposed in the state in 1990 owing to the pattern of impunity it offers to the armed forces for torture, killings, fake encounters, custodial killings, custodial disappearances and rape. Women activists have been at the forefront challenging AFSPA. However, protests are much more feeble in cases of rapes and molestations, where a woman is seeking justice for herself, than over cases of torture and custodial killings or missing youth, where women come forward not just in the traditional role of mothers, daughters and sisters, but also enter the public domain as household heads. Kashmiri society may have to look inward to challenge the centrality of this patriarchal set-up which not only sets the limits of women entering the political domain in the role of agitationists, also for challenging the “honour” discourse, often with the binaries of “us” and “them” that encourages sexual violence to be seen from the prism of stigma and forbids greater participation of women in seeking justice for the surviving victims.

Though sexual violence has not been central to the discourse challenging AFSPA, opposition to it is something that lies at the core of the human rights movement in J&K. For this reason, any move to revoke the law, or challenge some of its demeaning provisions would be welcomed by and large in the state, particularly in the Valley. The Criminal Laws Amendment Ordinance 2013 in no way matches the Justice Verma Committee Report. Silence on AFSPA is only one of the differences. However, the report is yet to be placed before Parliament for formulation of a final law; so it is still too premature to conclude that the government would try its best to exclude the recommendations related to AFSPA, though the haste with which the ordinance was brought about when Parliament session was less than a month away raises doubts. The recent statements of Union Law Minister Ashwani Kumar that carried an implicit approval of rape in “the line of duty” and another by Union Finance Minister P C Chidambaram that broad consensus is needed to accept the recommendations on the review of AFSPA further strengthen these doubts. Chidambaram’s more recent remarks at a public lecture that it is difficult to challenge AFSPA because of the army’s opposition strengthen this scepticism. Yet, hypothetically, if AFSPA-related recommendations are incorporated into the proposed law, would it make any difference to Kashmir?

Any hypothetical outcome would depend on how the J&K state government implements the provisions of this law. By virtue of the special status accorded to the state, the Indian Penal Code (IPC) does not apply to J&K, which has its own equivalent Ranbir Penal Code (RPC) and so amendments carried out in the IPC have not been adopted in the RPC. Any law legislated by Parliament or any amendments carried out in the existing laws are not automatically extended to J&K. It is also not legally binding upon the state government to incorporate them. In most probability, the state government would review its own existing laws dealing with sexual offences. An exercise to this extent has already begun with the state government on 6 February announcing a committee to enter into consultations with various groups and stakeholders as well as study the Justice Verma Committee Report. The panel headed by the state’s advocate general was to submit its report within a week’s time, according to official spokesperson. The state’s law department has also sought suggestions from law experts, civil society members and academicians. But while the initiative has not been much publicised for encouraging holistic public participation, one week is too short a period for inviting and studying such suggestions and then finalising a report.

At the time of writing, the State’s Commission for Women (SCW), a highly politicised body headed by a member of the Jammu and Kashmir National Conference, is the only one that is known to have so far responded to the law department with suggestions regarding amendments to the state law. The contents of its suggestions are not known, but the only public statement made by the SCW called for harsher laws like death penalty and chemical castration, which goes against the grain of the Verma Committee Report. The composition of the committee formed by the J&K’s law ministry to review the criminal laws dealing with sexual offences itself is problematic. How does one expect a body comprising government functionaries minus any women representation to either challenge the patriarchy that endorses the culture of rape or the might of the state that protects the culprit by subverting the process of justice?

These might not be the only flaws with the state government’s exercise which has a record of raising the bogey of special status of the state to thwart and oppose people-friendly central laws, though exceptions are made when it comes to laws like the Terrorist and Disruptive Activities (Prevention) Act and the Prevention of Terrorism Act (POTA). J&K was the first state in the country to implement POTA. It was under pressure that the J&K government framed its own Right to Information Act but in a diluted form. Later amendments that strengthened the Act a bit were modified again last year to further weaken it. Despite tremendous pressure, the state government is neither able to incorporate the provisions of the 73rd and 74th amendments to the Indian Constitution, providing for decentralisation of powers to the grass roots, nor frame an equivalent state law. The state government has also been stonewalling the Lokayukta in J&K on grounds that the state has its own state accountability law, which stands diluted and looks like a hollowed-out clone of the Lokayukta.

Conclusions

Given the background and tradition of hostility to introducing people-friendly laws and the hasty and clumsy manner in which a committee has been framed with a deadline of a week for studying recommendations and framing a suitable report, it is difficult to presume that the state government would come out with a law matching the Verma panel recommendations. It might in all probability be a cut and paste of the Ordinance 2013, which has omitted AFSPA and most other suggestions that challenge the patriarchal order that lies at the core of sexual offences and the might of the state that stonewalls an effective legal justice system through procedural protocols to be followed in investigations and medical examinations and calls for penalisation of cops guilty of dereliction of duty in responding to complaints of rape and other sexual assault.

So even if the central law eventually incorporates the suggestions related to AFSPA as recommended by the Verma Committee, unless the state law is adequate enough to ensure an effective legal justice mechanism and is powerful enough to challenge patriarchy (patriarchy being central to how rape is placed within the paradigm of honour and encourages a tendency to stigmatise the survivors) so that survivors can freely report complaints of sexual assault, it is unlikely that the armed forces personnel charged of the crimes would be adequately penalised. The state has appropriated enough power to give full protection to the culprits in uniform overtly or covertly with all-out efforts made to hide facts and even tamper with evidence. The state police personnel, not covered under AFSPA, accused of rapes are already being shielded through methods like hushing up cases at the medical examination level, tampering evidence, delaying the basic documentation of the case, refusing to register cases, sending in state-sponsored teams or the highly influenced Central Bureau of Investigation to probe such cases.

Such methods employed for obfuscating and burying the truth have already been used in the Shopian rapes and murders of 2009 to the extent of sending the proactive judge of the high court, at whose intervention the arrests of the police officers he held guilty of tampering with evidence if not committing the rapes and murders were made, on a transfer to Sikkim. They have also been employed in cases where the armed force personnel are involved. In the Kunan Poshpora rapes of February 1991, in which over 30 women and children were allegedly gang-raped by soldiers of the fifth Rajputana rifles, no formal complaint was lodged. A local magistrate was called for investigation, but authorities in Delhi vehemently denied the incident without even verifying with local officials. A police investigation was never carried out.

The absence of adequate documentation of such cases would make any fair trial in all these cases of sexual abuse very difficult, even if it is assumed that the lawmakers at the centre and in J&K are able to frame the best of laws. The union law ministry in maintaining that the Ordinance 2013 will have no bearing on the Delhi bus gang rape having come into being after the Act also betrays the impossibility of a hypothetical diluted AFSPA being used with retrospective effect. Justice in the known cases of rapes by men in uniform will, in that case, remain elusive. In all probability, the security forces and the politicians, who have enabled the armed forces to trample women’s right to safety, security and dignity will continue to do so without being accountable, despite the painstaking efforts of the three-member Verma Committee.

 

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