On a cold day, some 27 years ago, Juma Sheikh, chowkidar of the twin hamlets of Kunan and Poshpora, Kupwara district in Kashmir, approached tehsildar Sikandar Malik with a letter written in Urdu signed and supported by thumb prints of the villagers. In elaborate and formal language the letter detailed the horrific ordeal of sexual violence and torture that they had suffered on the intervening night of February 23 and 24 at the hands of 4 Rajputana Rifles that had come in for a cordon and search. The victims reportedly ranged from a 60 year old woman to a 14 year old girl and a pregnant woman nearing full term. The men were not spared. Herded outside in the snow to makeshift interrogation centres they were subjected to various forms of torture like having chilli powder rubbed on the genitals or subjected to electric shocks in their private parts.
This letter, which would be conveniently ignored, marks the beginning of Kunan-Poshpora’s long struggle for justice and truth telling. Once remembered as Black Day, February 23 is now commemorated as Kashmiri Women’s Resistance Day reflecting the crucial role of memory and resilience as formidable tools to confront the state and the Army’s deniability, obstruction of justice and deliberate tarnishing of image of the villagers and Kashmiris.
The use of sexual violence, as a weapon during conflict and under militarisation, has been acknowledged globally. Several institutions like the International Criminal Tribunal for Former Yugoslavia, the International Criminal Tribunal for Rwanda and the Special Court for Sierre Leone have taken steps to redress it as crime against humanity. But, despite the Verma Committee’s progressive recommendations, the Indian state refuses to acknowledge and take action against men in uniform who deploy sexual violence in the militarized zones of Kashmir, Manipur, Nagaland and Chhatisgarh.
The Kunan-Poshpora struggle is symptomatic of what has been aptly described by legal activists as the “impossibility of justice” in militarized zones.
It is not just that under draconian legislation like the Armed Forces Special Powers Act (AFSPA) there can be no prosecution or any other legal proceedings against troops without sanction from the Centre, but the traction such impunity receives. It has become so pervasive that even normal procedures of ordinary criminal law like registering an FIR, conducting investigations and filing a closure report are not carried out. Although the police do not come under AFSPA the impunity extends to them too when the bogey of security is raised.
As human rights activists observe legal impunity is a repercussion of the far wider moral and cultural impunity. Notions of security and nationalism are conflated in such a way that victims become “perpetrators.”
An appalling example of this complete subversion of justice is the way leaders of the Hindu Ekta Manch and a BJP leader recently took out a rally in Kathua, Jammu, demanding release of a Special Police Officer who had been held for the heinous rape and murder of Afsha, a young Bakarwal girl.
The judiciary too is rendered powerless under such a milieu. When a case is filed the judicial system is unable to enforce its authority or to check the responses of the armed forces who simply ignore summons to come to the court, who do not file replies or participate in the inquiry proceeding but who, at a later stage, file objections effectively using delaying tactics as a tool of attrition.
So entrenched is this rhetoric of “national security” that the Supreme Court through its judgments now curtails the powers, not only of the lower courts, but also the police. Consider the way the father of Major Aditya Kumar against whom an FIR was filed for killing unarmed civilians in Shopian approached the Supreme Court and won a stay against “coercive action.”
An FIR is recording of information of a cognizable offence and the Army has the right to demand a second FIR for its version of events but to prevent registration of an FIR is interference in the obligations of the police, notes a press release by the Jammu Kashmir Coalition of Civil Society.
One must, therefore, applaud the persistent efforts of the Kunan-Poshpora villagers to have had an FIR lodged on March 8 1991, some 15 days after the incident, and the efforts of the District Magistrate whose visit to the villages and report was widely circulated.
One must recognize too the efforts of local journalist Yusuf Jameel, voice of BBC radio in the nineties, who broke the story of the mass rapes in The Telegraph in March 1991 which attracted attention of the international media. It is pertinent to mention that Jameel was condemned as anti-national, not just by the Ministry of Defence, but by well-known editor and journalist Khushwant Singh!
(Today the NIA in its arrest of Kashmiri journalist Kamran Yousuf actually defines a journalist as one who reports on the Army’s welfare schemes and blood donation drives.)
Even as the fight for justice began by the survivors of Kunan-Poshpora, a counter narrative was scripted by the Army, in which the late journalist B G Veghese was complicit. His report Crisis and Credibility for the Press Council of India was carried out at the request of the Army. Verghese and K Vikram Rao, under the Press Council of India, visited Kashmir twice in May and June 1991 to carry out investigations of gross human rights abuses. The “exhaustive” investigations were completed in nine days, of which one day was spent in Kunan. In this Press Council report Verghese dismissed the medico-legal reports conducted by the Block Medical Officer as being “worthless” He stated that the multiple abrasions and contusions on the lower body and chest of the women were probably a result of the Kashmiri custom of hugging a kangri (fire pot) close to the body. Verghese, who fought avidly against the human rights abuses in Gujarat, sadly did not retract from his position that the rapes were a “massive hoax” and continued to vilify the women of Kunan-Poshpora even when the probe was reopened in 2013.
He also claimed there was a delay in reporting the crime, conveniently ignoring the letter the villagers had written a day after the incident and the fact that the Army had thrown a cordon around the villages making movement difficult. In the absence of information in the public domain this unofficial document, with no real legal validity became the basis for seriously distorting public perception of the case and blocking legal rights to justice and truth of the survivors. The director of prosecution repeated this misrepresentation in 1991 as his reason for closing the police file. However international human rights organisations like Human Rights Watch and Asia Watch criticized the Press Council Committee and said it seemed to be “far more concerned about countering domestic and international criticism than about uncovering the truth.”
In October 1991 the police misled the public into believing the file was closed with perpetrators untraced. However, they had not filed the closure report before the magistrate as required. It was only in March 2013 that the police, getting wind of a PIL plea for reopening the case, hastily went before the magistrate 22 years later.
The PIL was initiated by young women who sought to rekindle hope in the aftermath of the unrest caused by the rape and murder of a young woman in Delhi in 2012 and the setting up of the Verma Commission. Five women- Esaar, Ifrah, Samreena, Munaza and Natasha – set up a support group for the rape survivors and wrote the remarkable book Do You Remember Kunan Poshpora?
In a fine display of duty, the judicial magistrate, refused to accept the closure report and ordered further investigations into the case by the SP within three months on a plea by two survivors.
Typically the investigations went nowhere with the police actually summoning three people who were no longer alive. Five survivors then filed a writ petition in the High Court seeking fair investigations and compensation as ruled by the State Human Rights Commission, a quasi-judicial body. In 2011 SHRC had recommended monetary relief and criminal prosecution of the accused and officers responsible for the cover up in 2011.
A cynical exercise in the politics of compensation and reparation followed with the state of J&K first expressing its willingness to pay. But when directed by the High Court to do so the state changed tack and challenged the direction in the Supreme Court. Two years later, the defence ministry under the Union of India also filed a petition, challenging the compensation
The Army has also filed two petitions in the High Court challenging the SHRC decision and the order for further investigations by the lower court. And with such delaying tactics the struggle for justice is in a quagmire with the case being litigated across five petitions in the High Court and Supreme Court. Meanwhile at least five survivors have died.
And yet as the saying goes “Crime never dies.” There is a new generation of resistance fighters who are determined to keep truth and memory alive. As the authors of the book Do You Remember Kunan Poshpora ? state:
And voices will continue to ring out in the clamour for truth