Photo: Flickr / Arfi
Photo: Flickr / Arfi

Kunan-Poshpora: Reconstructing truth

Crime never dies, and neither does the struggle for justice.

During a visit to Kashmir in June 2013, former Indian External Affairs Minister Salman Khurshid made a startling remark on the infamous Kunan-Poshpora incident. Referring to accusations of the mass rape and torture of Kashmiri villagers by the Indian Army on the intervening night of 23-24 February 1991, Khurshid told the media, "I am ashamed that [it] happened in my country." Khurshid's admission is ironic, not least because it is at total variance with the Indian state's persistent denial that Kunan-Poshpora ever happened. Twenty-three years have gone by, and five women waiting for justice have died. The case remains in a legal quagmire.

Kunan-Poshpora epitomises not only the Indian state's complete denial that gross human rights violations are being perpetrated by security forces in Kashmir, but, also, the Kafkaesque experience Kashmiris are subject to in seeking legal redress. Extra-ordinary legislation such as the Armed Forces (Jammu and Kashmir) Special Powers Act, for example, stipulates that the J & K government cannot prosecute armed forces personnel without sanction from the central ministries. Not only has no sanction ever been given, but there exists a sense of immunity so pervasive that even the normal procedures of criminal law, such as registering a First Information Report (FIR), initiating investigations, or filing a closure report before a magistrate, are routinely disregarded. The judicial system remains helpless as police and security personnel ignore standard procedures, flout court orders, prolong trials for decades on end and, often, do not even bother to appear in court.

The case of Kunan-Poshpora also illustrates how the Indian state scripts its own counter-narrative and employs the rhetoric of 'national security' to cast aspersions on the credibility and innocence of the victims of rights violations. The villagers of Kunan-Poshpora have told and retold their stories of rape and torture to human-rights activists, journalists, filmmakers and organisations such as Amnesty International and Human Rights Watch, none of whom have raised serious doubts concerning their veracity. Their macabre experiences have been imprinted on the collective memory of Kashmiris and often find expression in the region's art and literature. Young women say that 23 February is remembered as a Black Day. More recently, it has been marked Kashmiri Women's Resistance Day.

For the Indian state and B G Verghese, who headed the Press Council of India (PCI) commission at the behest of the Army and was instrumental in crafting an alternative, state-sanctioned narrative, the complaints of mass rapes are "probably a massive hoax". To this day, Verghese insists "it was an act of psy-war to keep the Army, newly inducted to deal with militant-jihadi-azadi uprising, at bay." According to the PCI report, the villagers' allegations are little more than a "tissue of lies". This is disingenuous: it is the state that nurtured deception, refusing as it did to properly disclose the status of the case.

Case open
In April 2013, a determined group of 50 women approached the Kashmir High Court for Public Interest Litigation (PIL), demanding a fresh probe into the mass rapes. Based on official responses of the police and applications through Right to Information and details before the State Human Rights Commission (SHRC), it was believed that the case was closed as 'untraced', meaning that a crime had indeed occurred, though the perpetrators were unable to be identified. But at the High Court, the advocate-general disclosed that the police closure report of October 1991 declaring the case "unfit for launching criminal prosecution", had not been handed to the session court in Kupwara until March 2013. Technically, the case was not closed, and it would be premature to therefore admit the PIL.

On 18 June 2013, the judicial magistrate of Kupwara's session court instead directed further investigations on the police's final report, saying he found an "unbreakable chain" of facts and circumstances to "put the suspects [125 Army personnel] on trial". In response, the Army filed a revision petition in November 2013 claiming that opening fresh investigations was akin to "flogging a dead horse". Its counsel persisted with accusations that the case was little more than a "pre-planned, politically motivated game against [the] army". Crucially, this plea was dismissed on 8 August 2014.

An interesting and perhaps unintended consequence of these developments is that the police's closure report, which contains previously unavailable material, was handed over to the court. This material throws new light on the events and, importantly, adds weight to the villagers' narrative. The nearly 250 page document and case diary comprises 19 statements made by survivors, clothing items (including torn pherans and frocks) that were seized as evidence, 32 medico-legal reports and even crime scene maps drawn by the police.

A brief reconstruction and chronology based on the evidence provided by the documents helps in piecing together the narrative. On the night of 23 February 1991, a 125-man-strong patrol made up of four companies of the Fourth Rajputana Rifles moved into the twin villages of Kunan and Poshpora in Kupwara district (near the Line of Control) for cordon and search operations. The men of the village were herded into two barns and a house being used as interrogation centres, while the women and children remained in their wooden dwellings.

According to the police documents, men of the village accused Army personnel of torturing them during interrogations. One man said he was forced to drink the icy waters from a chashma (natural spring). Another was forced to put his hands into the frozen snow. One man complained of being hung upside down and having chilli powder rubbed into his genitals. Medico-legal reports mention burn marks on a man's penis, suggesting electric shocks had been administered.

The next morning, when the men were allowed to return home, they learnt that many of the village's women had been subjected to brutal sexual assaults. The women also alleged that a large portion of the troops had been drinking. The four companies of soldiers moved off in the morning after obtaining a mandatory No Objection Certificate signed by Constable Abdul Ghani, an inhabitant of the villages who had accompanied the troops.

A letter of complaint regarding the actions of the forces was sent by the villagers to police and Deputy Commissioner of Kupwara S M Yasin. In his statement to the police, Yasin said he received the complaint on 4 March, and on 5 March he proceeded to conduct an official inquiry. In a confidential letter to the police and divisional commissioner dated 7 March he wrote that the armymen "behaved like beasts", and that he felt "ashamed to put in black and white what kind of atrocities and magnitude was brought to my notice on the spot". He was given empty liquor bottles left behind by the soldiers that, he says, he handed over to the police. This letter became the basis of an FIR filed with the police on 8 March 1991.

In February of this year, Yasin told the press that shortly after the letter was sent and the probe got underway, he was transferred. According to Yasin, immense pressure was brought on him to "alter the finding of the report", but his conscience "didn't allow" him. It was the leaking to the press of Yasin's letter in 1991 that trained the media eye on the remote villages of Kunan-Poshpora. Veteran journalist Yusuf Jameel filed a report based on Yasin's letter on 12 March in the Telegraph. The British paper the Independent reported the incident on 19 March.

The media glare resulted in the formation of a fact-finding delegation of human-rights activists and journalists led by Chief Justice Mufti Bahauddin Farooqi in March 1991. This time 53 women charged the Army personnel of raping them. Justice Farooqi noted that the villagers complained that investigations had not commenced because the concerned police officer, Dilbaugh Singh, was on leave. Farooqi also noted that he had "never seen a case in which normal investigative procedures were ignored as they were in this one".

On 18 March 1991, the head of the civil authority, Wajahat Habibullah, Divisional Commissioner (DC) of Kashmir, visited the snowbound villages where he was met by women who repeated the charges of rape and molestation. In his book My Kashmir: The Dying of the Light, Habibullah ambivalently claims that he found the villagers' complaints "exaggerated but not necessarily unfounded", and noted that a more detailed inquiry was necessary. Habibullah added that when the J & K state government published his report, it deleted his expressions of misgiving. More recently, Habilbullah has accused security forces of attempting to bury the incident.

At this critical juncture, when every official person who had visited the villages was agreed upon the need for further investigation, the Indian Army sought an 'impartial' verdict. It did not choose someone from a legal background to provide this. Instead, it sought out the Press Council of India. B G Verghese, according to his own memoirs, says he was approached by then-Chief of Army S F  Rodrigues (who was known to his father), to head an inquiry commission in the wake of the disturbing allegations. The other members of the commission were journalists K Vikram Rao and Jamna Das Akhtar, who, because of his advanced age, did not make the trip to Kashmir at all. The Kunan-Poshpora incident was probed by the commission, along with other allegations including the Dudhi killings and Pazipora rapes.

There are three important assumptions in the PCI's report that form the matrix of the state's counter-narrative. The first premise is that there was an inordinate delay in reporting the incident. The PCI report, commonly known as the Verghese report, states "It seems beyond belief that such a horrendous and traumatic event that understandably aroused such anger should remain totally unreported for 10 days." This argument is repeated by the police who, in their closure report, say it is surprising that such a serious incident was not immediately reported to the police station located hardly three kilometres from the place of its supposed occurrence. The police also say that the letter purported to have been written by the villagers reached the DC seven days after the alleged incident occurred, leading to the conclusion that the event had been 'stage managed'.

But villagers point to the fact that a letter dated 25-26 February complaining about actions of the Fourth Rajputa Rifles with more than 30 thumb prints is on record, and that a delegation of villagers visited the Army unit headquarters on 26 February. After conducting its own investigations in March 1991, in a confidential report (that is now public) the Army corroborated the fact that the villagers had made a complaint to the Army. Villagers also say that public protests were held at Trehgam police station on 1 and 2 March. Responsibility for the delay in filing the FIR thus falls on the police, not on the villagers.

The second premise is that medical evidence shows that mass rapes did not take place, and that most of the evidence was anecdotal. Verghese discounts the medico-legal reports of Kralpora's Block Medical Officer, saying its delayed medical examinations are 'worthless'. The reports are, however, detailed and record injuries (healing abrasions) on the breasts, abdomen and thighs of many women. There is also evidence of vaginal injuries, including the torn hymens of young girls and unmarried women. Verghese, however, claims that abrasions on the chest and abdomen are likely to be common among villagers in Kashmir as "they hug 'kangris' or earthen pots with live coals". The torn hymens of young girls and unmarried woman are explained away by suggesting that they "could be a result of natural factors, injury, pre-marital sex, or rape".

The Verghese report also argues that there is a vagueness in the vocabulary used by the survivors, as against the forceful language used by human-rights groups. This leads him to conclude that the rapes did not take place but were part of a conspiracy. Human-rights lawyers such as Shrimoyee Nandini Ghosh, as well as members of the Support Group for Justice for Kunan-Poshpora survivors, point out that some misunderstanding may arise due to the fact that in the letters written by the investigating officer to the medical officer in Urdu, the words Jammah na jayaaz (illicit intercourse) and Zinna bal jabbar (illicit intercourse by force) were used interchangeably by the police. The medical officer's responses in the medico-legal reports in English, however, leave little scope for misunderstanding. The officer stated categorically that the rapes did take place.

The counter-narrative that Verghese constructs and the language he employs is significant because it illustrates a patriarchal and sexist understanding of what constitutes rape and the 'behaviour' of raped women. Verghese wonders, "Would troops on a hazardous cordon and search mission in a village known to be harbouring militants nonchalantly spend the night carousing and raping?" Such a statement refuses to acknowledge the fact that sexual violence is used the world over as a weapon of war. The counter-narrative is also peppered with patriarchal notions of honour, chastity and shame.

The third surmise in his report is that the allegations are suspect because the number of women who complained of rape keeps changing. The women, in turn, say that given the sensitive nature of the complaint, only a few older women initially spoke out. Unmarried women and teenagers did not, for fear of stigma. The numbers of women who complained has thus fluctuated.

In 2004, under the organisation of the village chowkidar, Jumma Sheikh, women approached the SHRC which took suo moto cognisance of the case. In 2011, the SHRC ruled that compensation must be provided. Thirteen more women approached the commission on behalf of their then-minor daughters – their cases are now pending before the SHRC. The SHRC, which can only make recommendations, also passed strictures against successive governments and district administrations for their disbelief and inaction, saying they were "guilty of callous, negligent, insensitive and indifferent" behaviour. Most importantly, it called for a reinvestigation into the crime.

Significantly, the issue of compensation has led to the uncovering of another deception. During the PIL proceedings in 2013, the advocate general stated that compensation had not yet been handed out. But the villagers say that at least 37 women/families had been given INR 1 lakh by the MLA from Kupwara in the presence of the tehsildar. The distribution of this money raises pertinent questions. Indeed, can it be interpreted as a surreptitious way of buying silence? Or, is it an attempt to create an impression among the victims that by accepting money they cannot pursue investigations?

Ongoing battles
For the villagers of Kunan-Poshpora, the injustices of 1991 have been compounded over the years. In addition to initial attempts to cover up the crimes, and the deliberate deployment of a counter-narrative to throttle their voices, delaying tactics continue to be used to stymie justice. Despite the court's orders in June for a three-month time-bound probe, the police have failed to act and continue to seek extensions on the deadline. On at least one occasion, the police summoned victims/witnesses who are no longer alive.

In relation to current machinations, the Army's position is clear. A revision plea filed by the Army in November 2013 said it denied mass rapes and torture had occurred, and "seeks total impunity for the alleged perpetrators". The plea further states "there will be no cooperation with the investigations. On the contrary, every effort will be made to stall them."

In this prolonged battle, on 1 July a breakthrough occurred. The Srinagar High Court, in response to a petition filed by the survivors of Kunan-Poshpora, recognised the responsibility of the state for the crimes committed, citing the state's statutory and constitutional obligations. The High Court observed that the SHRC recommendations for relief were evidence-based, and instructed the government to explore the potential of providing compensation within three weeks. The order for compensation is an acceptance that the crimes did indeed take place, and should be followed by prosecution of all those found guilty of the crimes, as well as those responsible for the cover up. Significantly, the sessions court on 8 August dismissed the Army's legal challenge that sought an end to further probing of the case. In supporting its decision, the court made the observation that 'crime never dies'.

For the people of Kunan-Poshpora, these developments are of note. But the struggle ahead remains a Herculean one. Twenty-three years on, they still wait for a trial to begin.

~ Freny Manecksha is an independent journalist based in Mumbai.

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