In Part 1, Parvez Imroz, the lawyer representing the Handwara minor girl who was allegedly sexually assaulted on 12th April spoke about her current status and what steps he would like the government to take. In this Part 2, the human rights lawyer discusses how the wider context of the conflict in Kashmir plays a role.
Sushil Kambampati: Is this purely a local police matter?
Parvez Imroz: The police are not acting of their own. There are powers directing them – including we believe the army. Various conversations with State and non-State actors confirm this.
SK: Does the special situation of Kashmir allow the authorities to lawfully act in this way?
PI: The police and all others involved in this case have broken JK laws. By “arresting” the minor girl, harassing her, taking statements from her in video and otherwise under pressure and keeping her in custody, the JK laws have been broken. This brazen disregard for the law is not surprising though it is highly unfortunate particularly as a minor girl faces the brunt of the force of the State.
SK: Are anyone's fundamental rights being violated?
PI: The minor girls rights – under legal statutes and as per Supreme Court directions – have been violated from the beginning. She was dragged to the police station. No access to lawyer or family was provided. Her statement was taken by a male police official under duress and then circulated widely with her identity being revealed. The police, apparently in association with the army, have violated her rights and need to be investigated and prosecuted.
SK: So you believe that the army has been involved since her detention?
PI: The army owned and circulated the video of the girl taken unlawfully by the police. It needs to be investigated whether the video was taken on their directions. Since then, we suspect that the army has been closely monitoring the situation and possibly even directing the police and government in this case. This is not unheard of in Kashmir where the army often has the final say.
SK: Why do you think that the police are protecting the army?
PI: The police are also protecting themselves as they know they are liable for prosecution for the manner in which they have treated the girl since 12 April 2016. It is clear that the army’s interests are also being served by the police.
Every attempt is being made by the police to isolate her and then break her will. They do not want her to speak without fear. They want her to give up any legal struggle and accept the statements she made under their pressure.
SK: The actions of the police appear to align with the interests of the army. Is that unusual?
PI: The Jammu and Kashmir police has almost always protected armed forces personnel accused of crimes – sexual assault or otherwise. Also, the police are not independent as such and work under political and army pressure. In the instant case they are also trying to protect themselves as they have broken laws in their treatment of the minor girl.
SK: Does the politicization of the event and subsequent violence have any effect on your handling of the case?
PI: We have handled this case with a firm focus on the 16 year old minor girl and her interests in light of the relevant law. For us this is first and foremost a human issue. The victim is a minor girl and the making and circulation of a video has affected the family socially as well. Her interests have been our primary concern.
SK: Are you involved with the cases of the shooting victims?
PI: Jammu Kashmir Coalition of Civil Society documents human rights violations in addition to litigation. While the killings are subject of the Bar Association PIL and therefore already before the court, we will try and play our part by documenting the cases and the circumstances under which these killings took place.
SK: What do you think will be the long-term effects of this case?
PI: The manner in which the police and army have acted in the case of the 16 year old minor girl could have a chilling effect on other cases of sexual assault. Therefore, its very important that both in court, and outside, people raise their voice against the illegal manner in which the 16 year old girl is being treated.
SK: How would you have ideally liked to see this unfold?
PI: The biggest casualty in Kashmir has been the investigation of crimes and the quest for truth and justice. The State has invested itself consistently in shutting down the voices of truth. Therefore, in the instant case, their first step was not to allow the disclosure of the truth but to ensure "law and order" as they call it by making the girl make statements as was convenient to them i.e. that the local community had attacked and molested her. The girl should have been given immediate access to her family and legal counsel. The video should never have been made and circulated. She should not have been kept in police custody. She should have been given the time to collect herself and then take the action as per her wishes, including a FIR and a statement before a magistrate. Instead, the police have treated her as an accused, shut her in detention and muzzled anything she wished to say of her free will.
SK: How is what happened here different from anywhere else in India?
PI: Sexual assault and inappropriate State responses are a global phenomenon. But, in the case of Jammu and Kashmir, under a military occupation of the Indian State, where no crimes by the armed forces have ever led to prosecutions in civil courts, the process is particularly oppressive and the State takes all measures to ensure impunity. An allegation of sexual assault against the armed forces in Kashmir is dealt with very sternly by the State but not against the accused but against the victim.
We unfortunately see that in Kashmir the State – in all its forms – and the non-state, including some segments of the media, get involved in a concerted effort to ensure impunity. Perhaps the difference is one of scale and intensity. In Kashmir it is difficult for anyone to speak against the State. In the case of India, for example when the Nirbhaya case happened, we saw a galvanization of civil society and active campaign of the media. This does not happen in Kashmir due to the fear of the consequences.
SK: When you refer to the "State", do you consider all levels and branches of government--including local police, the state government, the central government, the judiciary, the army--to be the same?
PI: In Kashmir, there is often a convergence of interests on the side of the authorities. Especially when it comes to human rights violations by armed forces the "State" through its various functionaries appear to work together to ensure impunity. The different agencies follow the same doctrine as laid down. Even the judiciary, though independent, is under pressure too.
Numerous cases have been documented where different branches of the State have played their role in ensuring impunity. It is not always brazen. It is often sophisticated. Whether in the form of government relief, or in other ways, including frustrating the victims by ensuring the process of justice is painfully slow, the State has managed to handle the situation and protect the armed forces.
SK: How do you hope for independent justice, if all parts of the government are arrayed against you?
PI: Our first priority is the release of the girl from police custody. Following this important step, we will be guided by the girl and her family in their future struggle for justice. This is not just a struggle for justice but also dignity that can only happen if people speak up. This case is important not just for the minor girl but also for the fight against sexual violence, particularly by armed forces personnel, police and those in power.
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Disclosure: A relative of the author is a member of the legal team representing the minor girl.
