Kunan-Poshpora Mass Rape by Indian Army in Kashmir Revisited

By Sajjad Shaukat

?Although during search operations, Indian army and paramilitary forces continue committing rape of the innocent Kashmiri women in the disputed territory of the Indian Illegally Occupied Jammu and Kashmir (IIOJK), yet, the incident of mass rape of February 23, 1991 shocked the entire international community.

In this regard, four personnel of the Indian army—Rajputana Rifles raped at least 23 women in Kashmir’s twin villages of Kunan and Poshpora. It was supposed to be a cordon-and-search operation to trace militants, but turned out to be the blackest of night in Kashmir’s violence-ridden history.

As per the 2012 Jammu and Kashmir State Human Rights Commission (J&K SHRC) report, “The men in the villages were first ordered to come out of their houses and taken to a separate location. Then members of the security forces who had turned into beasts forcefully entered these houses and gagged the mouths of the victims and committed forced gang rape against their will and consent. Even minor girls as young as eight years of age were not spared.”

The book, “Do you remember Kunan Poshpora?, published on July 15, 216 exhaustively documents aspects related to the incident. In the book, amongst many gory accounts, one of the survivors shares her story: “Three army men caught hold of me and 8-10 army men raped me in turns. They had huge battery torches with them and they used them to see my naked body, while making lewd remarks”.

Hence, February 23, 2023 marks the 32nd anniversary of the mass rape and torture in twin villages of Kunan and Poshpora in Kupwara district of the IIOJK. It was the major recorded incident of sexual assault in South Asian history, stands to be a disturbing instance of the political and judicial impunity enjoyed by Indian Armed Forces in the State of Jammu and Kashmir.

Since 2014, every year, 23rd February is commemorated as Kashmiri Women’s Resistance Day, inspired by the struggles of the survivors of mass rape and torture in Kunan and Poshpora. The three decade–long struggle of the survivors is a part of the larger on-going struggle in Jammu and Kashmir, against the institutionalized and structural violence of the Indian state in the region.

In 2014, as a surprise to the Indian government, the divisional bench of state high court comprising Chief Justice M. M. Kumar and Justice Hasnain Masoodi took up the SHRC report and decreed that “the government should explore the possibilities of payment of compensation within three weeks.” This was the first time that members of the higher judiciary acknowledged that the heinous crime did indeed take place as until then reports of the gang rape had been considered terrorist propaganda.

Notably, we should remembrance the fate of the army’s depositions in front of the judicial enquiry commission which was headed by a former Manipur judge, Upendra Singh, in the Thangjam Manorama rape and death case. None of the army’s versions were accepted by the commission. The inquiry established that troops of 17th Assam Rifles brutally tortured Manorama in front of her family. Thereafter, she was shot multiple times, including her private parts. Singh found this completely “incomprehensible” and submitted in the report that it was likely that Manorama was shot in her genitals to cover up the crime. The army’s submissions, based on an FIR and other documents, were declared a “naked lie”.

The Union of India filed a Special Leave Petition in the Supreme Court of India in 2014 challenging the interim orders of the Jammu and Kashmir (J&K) High Court of 2014 to pay the compensation to victims and of the Kupwara District Court for the reinvestigation in this case. The judiciary stayed the reinvestigation and the payment of compensation. Even the order passed by SHRC was stayed by the High Court, which had also recommended for holding the reinvestigation and payment of compensation.

There are five petitions in connection with Kunan Poshpora case pending before the High Court and the Supreme Court of India since 2014, three of which have been filed by the Indian army, which has denied justice to the victims till date. Currently the matter is stuck between the two courts. Six of the Kashmiri women who were allegedly gang raped by Indian soldiers in have died, the remaining 17 survivors still await justice. So, in the process 6 survivors/witnesses have already died.

?It seems that it is very unlikely that the Kunan-Poshpora victims will get justice within their lifetime, as the investigation has been stayed and after investigation, the sanction is an issue before the Indian Defence Ministry which has not granted sanctions to a single case so far.

Kunan-Poshpora mass rape and torture case was reported widely by more than 350 Human Rights organizations, journalists and various renowned entities all over the world, despite that justice seems to be a mirage for the victims.

Numerous independent investigations and fact finding missions as well the one led by a former chief justice of the Jammu and Kashmir high court–Justice Bahauddin Farooqi have concluded that the Kunan Poshpora case has seen unprecedented proportions of ignorance with regards to normal investigative procedures which must be followed after such a crime.

It is mentionable that there are other official documents which scream of the army’s excesses.?For example, the Justice Verma Committee report?says that brutalities committed by the armed forces have led to a “deep disenchantment” owing to the serious allegations of “persistent sexual assault” in areas of conflict. It further said that “impunity for systematic or isolated sexual violence is being legitimised by the Armed Forces (Special Powers) Act (AFSPA).” Moreover, the committee strongly recommended certain amendments for existing criminal laws and the AFSPA, but the government has taken little action on those specific points. Although, after the Criminal Law (Amendment) Act, 2013 which includes the armed forces under Section 376(2)(c) of the Indian Penal Code; accountability is still missing from the cases tried in military courts.

Besides, the Justice Jeevan Reddy Committee in 2005 had already recommended repealing of AFSPA for the simple reason—as it does not provide for any transparent system through which the Centre or other state institutions can ensure that citizens are protected from such actions.

Lawyers opine that one common misconception regarding the army’s impunity must be clarified. Army officials are not immune under AFSPA if they sexually assault women or commit rape.?Section 7 of the Act provides protection from prosecution for “anything done—in exercise of the powers conferred”. These “powers” include causing death, search and arrest without warrant; and they cannot be taken as a token of liberty to sexually assault residents.” But, under AFSPA-related offences, military personnel cannot be prosecuted unless there is a prior sanction by the central government. Responding to an RTI application filed by an NGO, the Jammu and Kashmir Home Department stated that “no sanction for prosecution has been intimated by the Ministry of Home Affairs and Ministry of Defense to the State Government from 1990-2011 under the J&K Armed Forces Special Powers Act.”

It is noteworthy again that the Justice Verma Committee clearly suggested that no sanction from the Centre should be required, if the person has been accused of committing sexual offence in the disturbed areas where the AFSPA operates. But this suggestion is yet to be adopted. In addition to all this, court martial case proceedings remain opaque.

While, Amnesty International India has raised serious doubts over the manner in which investigations and trials are conducted in Indian military justice system.

However, Manorama’s brutal murder shook everyone who heard about it. As Indian media’s inherent bias against the North East and Kashmir, the incident attracted negligible coverage. To make their voices heard, women from the region walked nude through Imphal and protested right in front the Assam Rifles headquarters.

In the recent years, Kunan-Poshpora survivors have been staging regular protests, but their voices are stifled and the mainstream media continues behaving as usual—In fact, collective conscience has become selective. Some of the highest officials at the UN have acknowledged and responded to the offences committed by peacekeeping troops—Can Indians learn from them—Or are nation-state dynamics so different that New Delhi has to continue carving out an absolute immunity for armed forces without any accountability whatsoever India is also party to major international human rights treaties. In 2014, the CEDAW (Convention on the Elimination of all Forms of Discrimination Against Women) Committee called upon the Indian state to review AFSPA as per the Justice Verma Committee’s recommendations and ensure that the “security sector is subject to effective oversight”.

Even Indian intellectuals are of the opinion that the world is watching us and we cannot play innocent or oblivious. We must imbibe the spirit of the principles of fairness in our criminal justice administration and act against offenders. Truth has a peculiar nature–it cannot be defeated. Every act of tyranny, or deprivation of justice, has the power to haunt not only the offenders but also us, as a society.

Sajjad Shaukat writes on international affairs and is author of the book: US vs Islamic Militants, Invisible Balance of Power: Dangerous Shift in International Relations

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