Once again PUDR wants to highlight the impunity enjoyed by the Armed Forces in the country. On 16th January 2015 the Jammu and Kashmir High Court passed an order in the Kunan Pashpora case which goes on to highlight that in this country, it is not easy to prosecute or hold the Armed Forces accountable for any criminal acts perpetrated by them.
In the intervening night of 23rd and 24th of February 1991, soldiers of 4 Rajputana Rifles 68 Brigade tortured the villagers of Kunan and Pashpora, situated in Kupwara district of North Kashmir. Atleast 40 to 53 women were also raped by them. After about a month of the incident, on 18 March 1991, an FIR was filed against the Army under IPC section 376, 452 and 342. Then 22 years later, on 30th March 2013, the police filed an investigation report to the magistrate under CrPC section 173. This was done only when 50 women had initiated the process of filing a PIL in the J&K High Court. Observing this attitude of the police, the J&K High Court had advised the petitioners to file an application in the Kupwara Court. On 10 June 2013, the petitioners filed a protest petition in a magisterial court in Kupwara against the investigation report of the police. On 18 June 2013, the judicial magistrate ordered a re-investigation in the matter. On this occasion, PUDR had written about the case in detail and also issued a statement in the matter. (See: http://www.pudr.org/?q=content/one-step-forward-uncertainties-ahead)
An investigation ordered against the Armed Forces, after nearly two decades certainly was an extremely rare occurrence. But with the recent Order of the High Court dated 16 January 2015, we have arrived at the same place from where we had begun. Justice Tashee Rabstaan stayed both the Orders which directed a reinvestigation (Orders dated 18 June 2013 and 8 August 2013 confirming the 18 June Order) until the arguments of the other parties are heard. The Army has argued before the High Court that acts done by the Army while in ‘Active Service’ can only be prosecuted under the Army Act, 1950. The Army has also raised questions regarding the powers of the magistrate under CrPC section 173 – Whether the magistrate can take evidence after the closure report has been submitted? Can the magistrate order further investigation? While considering the closure report, can the magistrate rely upon unaccepted findings or recommendations of the State Human Rights Commission and on the basis of that decide the future course of investigation?
PUDR strongly condemns this Order and reiterates that even today the Government of India does not recognise the Armed Conflict Zones in the country. At the same time it also defends the Armed Forces deployed in these zones from being prosecuted in cases of human rights violations committed by them. This defence mechanism is created for the Armed Forces through laws like the AFSPA, Army Act and the like. In order to prosecute the Armed Forces in ordinary courts, permission is required from the Central Government. Between 1989 to 2011, 44 applications were received by the Ministry of Defence seeking permission to prosecute the Armed Forces deployed in J&K. Out of these 33 have already been rejected and 11 are pending. Even if cases like Kunan Pashpora do get a hearing at the ordinary courts, there is no guarantee that justice will be given. This is evident in the 25 year long history of this case. PUDR demands that the impunity granted to the Armed Forces in the Armed Conflict Zones be repealed and the culprits in the Kunan Pashpora case be punished after completing a re-investigation.
Sharmila Purkayasth and Megha Bahl
7 February, 2015