Kashmir's Kunan & Poshpora: What Has Indian Judiciary Done For Mass Rape Victims?
"What is the Indian judiciary doing for Kashmir? The mass rape case of Kunan and Poshpora is not a priority. Justice in a situation like this does not interest even the Supreme Court of India," said prominent Kashmiri activist, Khurram Parvez
Twenty-nine years ago, Kunan and Poshpora, twin villages located in Kashmir's border district of Kupwara, were victims of mass rapes perpetrated by the Indian armed forces. On the cold night of February 23, 1991, deep in the Valley, armed personnel of the 4th Rajputana Rifles raped at least 40 women in the quiet hamlets and 29 years on, their fight for justice waits in the pages of the Supreme Court's registry.
"The case has been lying in three courts and although the State Human Rights Commission found all the allegation to be true, there has been no judgement yet," Khurram Parvez, the Program Coordinator of Jammu Kashmir Coalition of Civil Society (JKCCS) and a prominent Kashmiri human rights activist told The Logical Indian.
Between the years of 2005-2011, the villagers of Kunan and Poshpora fought to get the case moving in Jammu and Kashmir's State Human Rights Commission (SHRC). When the SHRC conducted an inquiry and found the accusation of mass rapes to be true, they ordered for the erstwhile state government to pay compensation to the forty women identified to be the main victims.
"But the compensation never came then and hasn't even come yet," Parvez highlighted.
Natasha Rather, co-author of 'Do You Remember Kunan Poshpora?' informed that 50 Kashmiri women had come forward to re-open the case and file a petition to fight for delivering justice to the victims in 2013. "Fifty of us came forward to file a petition in the Srinagar High Court. Originally, around a hundred women had volunteered to help with the legal battle but the authorities asked us to submit our identity cards with the court. You must know that in a place like Kashmir, foregoing an ID card - even briefly - is a risk one cannot undertake."
Due to the unusual demand by the court authorities, Rather's team of petitioners fell from 100 to 50 women.
"I think they (women) were inspired by the fight put up by Indian civilians when the Nirbhaya gang rape and murder took place in New Delhi. When they filed their legal application in Srinagar's High Court, they were met with a question posed by a judge asking them why are they bothered to re-open an old and forgotten case," Parvez stated.
The High Court in 2013 issued a notice to the J&K government but the response was allowed to be delayed as much as possible. The High Court then demoted the status of the case and sent it to Kupwara's District Court. "It was sent to Kupwara for closure," Parvez said.
"We went to the Kupwara District Court and filed a protest petition, submitted the affidavit containing all the statements of the victims and they (victims) even came forward into the witness box to corroborate their story," he added.
After months of relentless work and pursual of the case, the district court ordered further investigation. "The J&K police back then were doing everything they could to ensure that the case was closed. The district court had given three months to the government to submit its report on the investigation into the allegations but a year passed and nothing was submitted from their end," he said.
The team of petitioners then approached the High Court again, and this time the case was referred to a division bench of two judges. The judges ordered the government to pay compensation to the victims and complete the investigation to provide answers. "But we got neither an answer nor a report from their end. Even compensation was not paid," Parvez maintained.
Around the same time in 2015, the Indian Army filed a petition in Srinagar High Court asking for a stay order against the ordered investigation into the mass rapes. "Back then the High Court's Justice was Tashi Rabstan."
"So, Justice Tashi Rabstan ordered the stay on the investigation and issued a notice. It was an ex parte hearing and technically wrong! A hearing on the same case had been ongoing so the Indian Army's petition should have come to the division bench and not a separate bench - the single bench headed by Rabstan, as it had," he said.
Subsequently, the investigation was ordered to be halted and the Indian Army moved the Supreme Court of India to order us to withdraw the case altogether. "Thus, in 2016, we filed another petition in the Supreme Court against the 'stay order' on the investigation," Parvez said.
The then Divisional Commissioner, Wajahat Habibullah, has been accused of attempting to delay and help the Indian Army evade the process of justice in their petition.
Natasha Rather, who began her work for bringing justice to the victims, said that her involvement began with a conversation she was having with her friend. "My friend, who is also one of the authors of our book, asked me casually: did I remember Kunan Poshpora. And everything after that has changed my life."
Taking The Logical Indian through the happenings that unfolded after the 23rd of February in 1991, Rather shed light on the medical examination that was conducted to verify the women's accusations.
"A person was sent by the Indian Army for 'first aid' and based on my conversations with the victims, they remember being very uncomfortable while being examined for medical evidence."
A week after the mass rape took place, the entire area encompassing both villages was cordoned and none of the residents could come out to report the ghastly incident. "They had to run about for the most basic things and could not report anything. A selected bunch of journalists and bureaucrats were aware of what had happened but they remained quiet," she added.
As per the human rights activist, Khurram Parvez, it is natural of the police to take suo moto cognizance of such cases and file an FIR (first information report) themselves, even if citizens have not filed anything. Far from taking suo moto cognizance, the J&K police were doing their best to prevent the filing of an FIR.
Only after a protest led by the villagers in 1991, they were compelled to create the document they had been avoiding.
However, since the FIR was filed in 1991, the police have done nothing about it and no investigation has been carried out. "It was only then the victims and the villagers went to the SHRC in 2005," Parvez underlined.
In 2013, when Rather and her team of 50 took the case to the High Court, they had to produce justifications for wishing to reopen a case of mass rape from 1991. "We fought to get our petition filed in the High Court. Currently, the case lies in the Kupwara District Court, the High Court and in the registry of the Supreme Court."
Only when and if this case goes to the open court, will it leave the pages of the registry, but according to Parvez, after the petition was filed in 2016, the apex court has not heard anything over the matter, letting it rust in its books.
"What is the Indian judiciary doing for Kashmir? The mass rape case of Kunan and Poshpora is not a priority. Justice in a situation like this does not interest even the Supreme Court of India. It has been thirty years since the FIR and four years since we approached the Supreme Court - but they haven't even taken it out of their register."
Commenting on how life changed for Kashmiri women after the conflict escalated in the Valley, Rather pointed out that Kashmir was a very progressive and liberal society as opposed to its patriarchal outlook today.
"Before 1989, Women were at the forefront of everything. From decision-making to earning livelihoods, women ran the ships of their households. They had the freedom to move around whenever and wherever they wanted. But after Kashmir's militarisation, it was hard to leave homes to collect firewood," she said.
Due to the culture of midnight crackdowns started by the Indian state and its army, women were cooped up in homes and disallowed from attending college or taking up jobs. "Their families thought that their presence outside would make them easy prey, and that started the trend of marrying their daughters at young ages," she added.
War and conflict have always made women the easiest targets of attacks and brutalisation. A United Nations report on the Rwanda Genocide highlighted that the victims of modern armed conflict are far more likely to be civilians - mostly women and children - than soldiers. The nature of the brutalisation of women and children is particularly sexual and the women of Kashmir's Kunan and Poshpora are witnesses and victims.
Parvez said that the women have little or no hope from the Indian judiciary and they have only been deeply frustrated by the red-tapism and process. "Their fight is not only for justice but they for acknowledgement and most importantly to act as a deterrent so that a crime like this is never repeated," he said.
He believes that their fight for justice has kept the memory of the crime fresh in the minds of those responsible and that has somewhat deterred debauch abuses in Kashmir.
Rather says that the women are exhausted but are still trying their best to keep the fight ongoing. "This is one way of remembering what has happened and has been happening in Kashmir."