Thursday, July 27, 2017
The Honorable Supreme Court recently dismissed a Public Interest Litigation (PIL) filed by Roots in Kashmir (RIK). RIK in its PIL had asked for:
1. Investigation and prosecution of terrorists like Yasin Malik and Farooq Ahmed Daar @ Bitta Karate, Javed Nalka and others, for hundreds of FIR’s of murders of Kashmiri Pandits during 1989-90, 1997 and 1998, and which are lying un-investigated by J&K Police even after expiry of 26 years.
2. Transfer of all the FIR’s/cases pertaining to murders of Kashmiri Pandits, from State of J&K to some other State (preferably State of NCT of Delhi), so that the witnesses, who were reluctant to approach police or Courts in view of their safety concerns, can freely and fearlessly come and depose before Investigating agencies and Courts.
3. Transfer of investigation of all the FIR’s/cases of murder and other allied crimes against Kashmiri Pandits in year 1989-90, 1997 and 1998, to some other independent investigating agency like CBI or NIA or any other agency as appointed by this Court, as till date J&K police has failed miserably to make any progress in hundreds of FIR’s lying pending with them for more than 26 years.
4. Appointment of some independent Committee or Commission to investigate into the mass-murders and genocide of Kashmiri Pandits during 1989-90 and subsequent years, and also to investigate the reasons for non-prosecution of FIR’s of murders of Kashmiri Pandits and Court-monitored-investigation so that the hundreds of FIR’s can reach their logical conclusion without any further delay.
5. Completion of trial and prosecution of Yasin Malik for gruesome murder of 4 officers of Indian Air Force on morning of 25th January 1990, which is currently pending before CBI Court in Ajmer and presently not being prosecuted or followed-up by Indian Air Force. And it should be a matter of shame for the Government of Union of India that 4 of its officers of Indian Air Force were murdered by gun-shots in broad daylight by JKLF terrorist Yasin Malik on 25th January 1990, with many eye-witnesses present there, and till date the charges are not framed in the said case, let alone the punishment.
The Honorable Court in its order headed by that a bench of Chief Justice JS Khehar and Justice DY Chandrachud said '... the instances referred in the petition pertain to the year 1989-90, and more than 27 years have passed by since then. No fruitful purpose would emerge, as the evidence is unlikely to be available at this late juncture.'
The order from Supreme Court surprised not only the displaced community but even many legal Pundits. The Honorable Court surprisingly threw the burden upon the victims on getting a closure instead of prosecuting and investigating agencies of both the Central and State governments, which have failed miserably in bringing the cases to closure.
What the Honorable Apex Court apparently missed to notice is that Kashmiri Pandits were ethnically cleansed and erased from their land of their ancestors, and the first and logical effort of such community will be their fight for survival. The community took time to rebuild itself from scratch. The survival of existence was more important than battle of justice, because dead men can’t approach court for justice.
What makes many wonder is why did J&K High Court or Supreme Court not take suo-motu cognizance of offences itself, when it could take suo-motu cognizance of a murder case of ‘lynching by cow-vigilantes.’ If trial of Bilkis Yakub Rasool gang rape case could be shifted out from Gujarat to Mumbai on the apprehension of the victim and the witnesses could come to harm if the trial was held in Gujarat, why didn’t the Honorable Apex Court appreciate that same stands true for the witnesses and victims of terrorism in the troubled state of Jammu & Kashmir.
The court missed the basic point, that it is not the Kashmiri Pandits that are in delay. It is Central and State Government that are in delay, it is the courts of this country that have delayed in delivering justice.
The Supreme in its order while mentioned that 27 years is too late for Kashmiri Community to seek justice, they did not appreciate the fact that community approached every organ of the executive to get justice delivered. They did not appreciate that every political party that came to power in Centre or State, kept promising that they will get justice soon. Many of the cases are pending in various courts without any closure. The Supreme Court conveniently ignored that a victim will approach Supreme Court only after all doors of Justice are closed and that does not happen immediately.
Supreme Court did not appreciate that 1984 Sikh riots case, which is more than 32 years old, is still to see a final closure, and was opened much later after its occurrence. Ram Janambhoomi – Babri Masjid case is pending since decades, and the recent reopening of cases against top BJP Leaders for Babri Masjid demolition, after the gap of 25 years, should have met the same fate as ours plea. But it was otherwise. A depilated building deserves justice but not 5 lakh Kashmiri Pandits.
Honorable Supreme Court posed a question to the petitioner that how the police will collect evidence after 27 years? A little surprising, because then what made Court believe police or CBI will get evidence in Sikh Riots of 1984 by an unknown mob. In the cases of murders of Kashmiri Pandits, eye witnesses and immediate family members of the victims are still alive. But where should they go to give evidence, when the police is not working and unfortunately the Courts are not interested, and the cases are in areas where he has threat to life.
In 2014, almost 23 years after it was reported, the trial court in J&K directed state government to further investigate the infamous Konan Poshpora mass rape case. Inspite of multiple probes dismissing the allegations as false, the court while dismissing the revision petition filed by the Indian Army said "crime never dies". The court said that a “delay in investigation” doesn’t debar an investigating agency from “unraveling the truth
In 1999, Government of India, appointed Mukherjee Commission, headed by a retired Supreme Court Justice, to investigate the death of Subash Chandra Bose, 54 years after his death. Netaji Bose, the great freedom fighter of India, went missing in a foreign country and has been believed to be dead in a plane crash. The retired justice did not for a moment say that where will the evidence come from after 54 years, that too from an investigation which would be spread over few countries. But today the Honorable Supreme Court informed us that it is impossible to gather evidence of killing of 700 people who were killed over period in the last 27 years, in a territory which is a part of Union of India.
Bangladesh in 2015 executed perpetrators of war crimes committed in 1971, 45 years later. Is the honorable court trying to convey that Bangladesh's legal and justice system better than India? While Israel continued to hunt their Nazi persecutors for 50 years, our system wants us to believe that justice is time bound, and now 700 murders will go unpunished and unnoticed from the history of the largest Democracy in the World.
Today’s dismissal of PIL by Supreme Court has practically killed all the hopes of any justice to a marginalized community; a community which chose to lose everything but not its love for mother India and its constitution. Today the killers of the community must be gleaming over the fact that they are above everyone else, with a slight regret, “why did we not kill more?”