8.1 On Impunity: Ram Narayan Kumar and Rhonda Copelon Memorial Panel

Session #8: Thursday, 30 December, 11.00 - 1.00 pm (Chanakya 1)

Panel coordinator(s): * (*)

Chair/discussant: Uma Chakravarti (*)

Panel description

Panelists, paper titles, and abstracts

  1. Anuradha Bhasin, Impunity and Sexual Violence in Kashmir
  2. Farah Naqvi, Impunity for Sexual Violence in Conflict Situations: A Search for Elements of Justice
  3. Navsharan Singh, Sexual Violence Against Women in the Punjab
  4. Warisha Farasat, Challenges in Ensuring Accountability for Mass Crimes

Panel description

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Impunity and Sexual Violence in Kashmir

Anuradha Bhasin (*)

The double rapes and murders case of Shopian (May 29-30, 2009) is not a case in isolation. It is a leaf out of history of human rights abuse and absolute impunity that men in uniform enjoy. The security forces including the state police have been accused in thousands of cases for torture, humiliation, encounters, disappearances, molestations, sexual assaults and other forms of harassment. Jammu and Kashmir has a long list of rape victims, none of whom has received justice. The graph of rapes in Kashmir compared to other rights abuses is very low, but it is so because most of these are not reported. The victims do not come forward in most of the cases because of the social stigma. Besides, most of the 'rapes' occur in remote areas which have little access to media or the human rights groups.

There is a complete denial mode of the same in the official circles and according to Jammu and Kashmir police, statistics show only ten cases of rape. A UN publication, however puts the number of rapes by security forces at 882 in 1992 alone. A Human Rights Watch report 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.

The Kunanposhpora rape controversy in 1991 is one of the most infamous cases in Kashmir, not only in terms of the numbers of women gang raped, but also in terms of both the stigma attached to the entire village. On the night of February 22-23, 1991, over 30 women and children were gang-raped by soldiers of the 5th Rajputana rifles. The experiences of Konanposhpora's women have been repeated over and over. Women are molested routinely by the para-military forces during searches. The only investigation panel in this case by the Press Council of India, a one man show by journalist B.G. Verghese, gave a clean chit to the accused troopers and accused the women of fabricating the story. When the incident happened, the village men complained to the officials but no action was taken. According to the Asia Watch Report, officials claimed that 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 never commenced. Then, three months after the incident, an Army official requested the Press Council of India to probe the allegations only after the forces were pressurised by media criticism. The one man Commission, that spent only a few hours in the village, found the charges ‘baseless’ based on gaps in statements and medical examination of 32 women that was conducted three weeks later. The then Divisional Commissioner Wajahat Habibullah questioned the manner in which allegations had been dismissed even before the investigations had been carried: “While the veracity of the complaint is highly doubtful, it still needs to be determined why such a complaint was made at all…” he pointed out while calling for a thorough inquiry in the incident which never happened.

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 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 upto ten years in prison if the normal Indian legal procedures are followed.

In November 2004, when a mother-daughter duo were allegedly raped by an army Major in Handwara-BadarPayein, the case ended in simply 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 either not made public or never 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 simply the remark of ‘severe displeasure’ gets recorded.

Shopian rapes and murders fit into this tapestry of brutality by security forces and use of sexual violence, while enjoying full impunity through extra-draconian laws or absolute official and political patronage. A year after the Shopian case was hushed up through investigations by police and CBI, the four cops indicted of tampering evidence have been not just let off, they have also been reinstated on the basis of the CBI’s clean chit to them. It was the J&K high court that had intervened in the case and ordered the arrest of the four cops following their indictment by the Jan Commission of Inquiry. The court had observed that either the cops know who has committed the crime or they have committed it themselves. After the case was handed over to the CBI, the cops were bailed out without even a proper investigation. CBI’s lengthy volumes of the report after a fresh post mortem of exhumed bodies, three months after the two victims died, has ruled out rape or murder and insisted that the two women drowned. However, the report fails to give any evidence. Many of those who campaigned for justice have been maligned and chargesheeted by the CBI.

The last two decades in Kashmir and other militarised areas of J&K are marked by not just brutalities by security forces but also the unlimited protection these personnel get. Despite massive allegations, with serious evidence pointing out to the same in many of the cases against the security forces, very few cases were ever investigated. In a negligible number of cases, prosecution takes place. In none of them justice has been delivered. In some cases where 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, as per provisions of laws like Armed Forces Special Powers Act, is never accorded. In the case of police, the laws are easily abused to give them that extra protection. In the last 20 years, it is only in a very miniscule number of cases that such sanction was accorded. However, till date no culprits in uniform have been convicted or punished. The culprits get full protection overtly or covertly and all-out efforts are made to hide facts, and even tamper with evidence.

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Impunity for Sexual Violence in Conflict Situations: A Search for Elements of Justice

Farah Naqvi (*)

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Sexual Violence against Women in the Punjab

Navsharan Singh (*)

Building on the collective silence in response to the large scale sexual violence against Punjabi women of Sikh, Muslim and Hindu religious communities that accompanied the blood-drenched Partition of 1947, this paper looks at sexual violence in contemporary Punjab. In contemporary Punjab, while Dalit women are often the victim of such crimes, the ‘punishment’ of rape is also common for the ‘crime’ of exercising free will or transgressing the familial code of ‘honour’. The paper argues that silence as the collective response for violence against women during Partition contributed to creating a lasting culture of impunity for sexual violence. The state did not recognise these crimes at Partition, had no framework of addressing it and consequently it failed to provide justice. The civil society also failed to seek accountability from the state. The result is that today impunity is not limited to legal inaction. The exemption from accountability for the perpetrators extends in family and community practices. The community exempts the perpetrators of social accountability for illegal acts; such men are keenly offered brides, and often hailed as heroes for punishing the ‘crime’ of free will and protecting the ‘honour’ of the family and community. The lesson for women’s movement is to lay bare the layers of protection which the family and community enjoy while the state makes itself absent, allowing them to perpetrate violence on their members.

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Challenges in Ensuring Accountability for Mass Crimes

Warisha Farasat, Lawyer, Delhi (*)

It is evident that impunity remains an urgent issue in South Asia. Impunity is usually defined as the failure to bring perpetrators of human rights violations to justice. However, this is a restrictive interpretation of the term. It conveys not only the lack of legal remedies available to individual victims but also the failure of democratic institutions to respond to egregious crimes. While India is perceived as a rising power, an economic success story, it is also marked by several intractable conflicts and intense political violence within its borders. The conflict in Kashmir and the Northeast has left a generation scarred by violence, and created deep social and political divisions. Similarly, the intensification of counter insurgency operations in the Naxal affected areas, and granting of unbridled powers to the security forces (paramilitary and state police) has resulted in severe human rights violations, including rape and other forms of sexual violence.

The government justifies the action of the security forces on the premise that these violations are isolated incidents. However, on a closer scrutiny of the pattern of human rights violations in these regions it becomes evident that these are not merely isolated incidents but rather systemic in nature. A victim’ s right to an effective remedy obligates India to take necessary investigative, judicial and reparatory steps to redress violations and address the victims right to knowledge, justice and reparations. The updated UN Principles on combating impunity elaborate this right as the Right to truth, justice and reparation. This paper addresses the challenges in ensuring accountability for mass crimes, particularly in cases of sexual violence, which are often the most difficult to document and prosecute. What are the relevant national and international frameworks that would provide guidance? Can India learn from comparative experiences? And, finally, what are some concrete measures that would ensure a sense of justice?

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