Last year at a seminar in Srinagar, women from Kunan-Poshpora, twin villages in Kupwara district of Kashmir, publicly recounted the night of February 23, 1991, when soldiers of the Indian Army invaded their lives, privacy and dignity. Masquerading as a “cordon and search operation to catch militants,” the soldiers of 4th Rajputana Rifles, of the Army’s 68th Brigade, entered the villages and launched the most potent tool of repression used in theatres of political conflict — rape, sexual humiliation and sexual torture.
Sexualised violence in wars and conflicts is neither incidental, nor is it a question of sex. When 125 soldiers lay down a siege over a village, separate the men from the women and sexually assault more than 50 women, from ages 13 to 60, it is indicative of a systemic military practice. The intent was not only to terrorise and traumatise the people under assault — they are often accused of harbouring militants — but also sending out a message of retribution to the Kashmir resistance movement.
The survivors, who appeared in front of a large gathering in Srinagar, for the first time since the incident, were accompanied by Syed Mohammad Yasin, the Deputy Commissioner of Kupwara in 1991. Yasin broke down when he said: “I was shocked to see the plight of the women … A woman told me that she was kept under jackboots by the soldiers while her daughter and daughter-in-law were being raped before her eyes. A pregnant woman was not spared either….” The message of retaliation, humiliation and shame was palpable.
Derailment of justice
In 1991, the Indian state — on the basis of an investigation driven with inherent biases and as reported by Human Rights Watch and Physicians for Human Rights — called the allegations a “massive hoax orchestrated by militants and their international allies.” Again, in 2014, during a hearing of the Kunan-Poshpora case, the Army counsel reiterated similar sentiments by calling the statements of victims as stereotyped and “like recorded rotten stereo sounds that play rape all over again.” The case was reopened in 2013 — a year in which 70 more cases of sexual violence by the security forces alone were registered. It was a move that was jarring to the military establishment of Kashmir. The Jammu and Kashmir Coalition for Civil Society (JKCCS), a human rights organisation representing the victims, and the “We Demand Justice for Kunan Poshpora Survivors” campaign, that filed a PIL in 2012 to reopen and reinvestigate the case, have consistently highlighted how the Army has been deliberately delaying the process.
“Impunity serves as substratum to the invincible military occupation of Kashmir ”
The experience of those who are seeking justice in this mass-rape case has been marked by review petitions, intimidations and the slandering of survivors and their families, resistance by the Army in providing information on the alleged perpetrators, and a failure by the police in recording statements from the victims and witnesses and carrying out investigations. Last month, the judicial system of Kashmir further ensured that the 125 soldiers continue to get away when the J&K High Court, in a petition filed by the Indian Army, stayed the ongoing investigations. In this case — which Harsh Mander, an Indian bureaucrat turned activist, called “probably the single largest case of mass sexual violence in independent India” — the court did not deem it fit to hear out the survivors and witnesses before pronouncing a stay order.
During her public testimony, one of the rape survivors confronted our “national conscience,” so often invoked in cases of sexual violence in mainland India, with her emphatic words: “when a girl was gang-raped in Delhi, the whole country rose against it. But in our case there was total silence. We don’t want any woman to suffer like us. We don’t want money or jobs but justice. We were raped but through our struggle we will expose and dishonour the accused. It is our last wish to get the accused punished.”
This expression of a hope for justice and an extraordinary determination to have punished those who have violated them, however remarkable it may be, at the same time exposes a political incongruity. In Kashmir, national pride is engendered in soldiers and institutionally manipulated by the state to humiliate a community in resistance. Would the criminal justice and legal systems in Kashmir, an extension of this very oppressive superstructure, dispense justice to the survivors of sexualised military violence?
This anomaly brings us to the formidable institutions of impunity in Kashmir. The Kashmir Valley, which has recorded a high incidence of sexual violence in comparison to other conflict zones in the world, has never seen a single prosecution in reported cases that have dragged on for years between institutions of law and state. Two verdicts on rape — of a mother and daughter in Banihal in 2000 and another one, of a mother and daughter again in Handwara in 2004 — in which armed personnel were convicted by court martial, were later challenged in the Jammu and Kashmir High Court and subsequently overturned. Extensively documented, by the local, national and international human rights organisations, are the inherent procedural impediments at the level of the police and imposed by the military to obstruct investigation and arrest. The “high-profile” cases of sexual violence — like the Shopian double murder and rape in 2009, the rape of a 15-year-old girl in Handwara by a Deputy Superintendent of Police in 2004 or the rape of a 25-year-old in Manzgam in 2011 — unravel a pattern of intimidation and threats that have been contemptuously deployed by the government, the police and the military so that the cases do not reach the trial stage. In June 2013, the media reported apparent attempts of interference and intimidation by Army and intelligence officials with the process of investigation in the Kunan-Poshpora case.
A political mandate?
Impunity serves as substratum to the invincible military occupation of Kashmir. By virtue of the fundamental role it plays, it demands certain protection from the state whose sovereignty it purports to protect. In cases of sexual violence, this institutionalised impunity faces an existential threat, for a soldier under the Armed Forces (Special Powers) Act (AFSPA), if “acting in good faith”, has permission to shoot to kill on suspicion, but cannot claim to have committed sexual abuse “in the line of duty”.
“At the outset, we notice that impunity for systematic or isolated sexual violence in the process of Internal Security duties is being legitimized by the Armed Forces Special Powers Act, which is in force in large parts of our country. It must be recognized 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.” These were words from the report by the Justice Verma Committee that brought amendments in the anti-rape law of India. The suggestions by the committee to bring members of the armed forces or uniformed personnel under the purview of ordinary criminal law if accused of sexual violence were rejected by the Indian government. Justices B.S. Chauhan and Swatanter Kumar, during the hearing of the Pathribal fake encounter at the Supreme Court in 2012, had said to armed personnel: “You go to a place in exercise of AFSPA, you commit rape, you commit murder, then where is the question of sanction? It is a normal crime which needs to be prosecuted, and that is our stand.” This stand by the jurists of the apex body of law was evidently incompatible with that of the institutionalised impunity in Kashmir.
Resistance from the military establishment and the Indian state to a revocation of AFSPA or to a dilution of its damning sections is not much of a conundrum when understood from the lens of “territorial integrity”, however historically disputed that may be. The structural issue that is significant in this paradigm of impunity is that the Indian state has consistently and overtly thwarted the demands and suggestions that have called for bringing armed personnel accused of sexual violence to justice. By foregrounding the instrumentality of law as a means of denying justice, the state has consistently protected the perpetrators. And it is in these very structures of power, oppression and denial that impunity assumes a position of political mandate.
From last year, February 23 is marked as “Kashmiri Women’s Resistance Day”. The brave and extraordinary women of Kashmir will come together to commemorate yet another year of struggle against injustice and retake a vow to challenge state-sanctioned impunity. It is for us to interpret whether their fight within the established legal system is in expectation of justice or to expose symbolically its capability to deny it.
(Ayesha Pervez is a writer, social development professional and human rights researcher. Twitter:@pervez_ayesha )