SUPREME COURT FAILS YET AGAIN TO PROVIDE JUSTICE
25 July 2017.
On 24 July 2017, the Supreme Court of India dismissed a petition filed by a non-government organization reportedly seeking investigations into killings of Kashmiri Pandits in Jammu and Kashmir. The order appears to be based only on the reason that 27 years have passed since the crimes in question and “no fruitful purpose would emerge, as evidence is unlikely to be available at this late juncture”.
The Supreme Court order is a complete departure from established law that “crime never dies” and there exists no time limitation for justice under Indian and international law with regard to serious crimes such as murder. Further, the order is based, it appears, on an absolutely unsubstantiated presumption that no evidence is likely to be available after the passage of time. Killings of Kashmiri Pandits, other minorities and all violence in Jammu and Kashmir have never been fairly and credibly investigated. Thus far Jammu and Kashmir has faced widespread, systematic and systemic violence, largely at the hands of the Indian State, that has resulted in an estimated 70,000 killings, 8000+ enforced disappearances, and numerous cases of torture and sexual violence, resulting in 7000+ unmarked and mass graves. To date, despite the presence of evidence, virtually no prosecutions have been conducted against armed forces personnel in civilian courts. This deep and pervasive impunity will be further strengthened and supported by the recent Supreme Court order. Crucially, the Supreme Court order exonerates the State and its agencies that have chosen to protect the perpetrators of crime and have not allowed fair and credible investigations thereby creating deterrence to families approaching courts. The delay is not attributable to victim families, many of whom, have consistently sought to use all available forums to struggle for justice. Some victim families have not pursued cases due to the real fear and danger that seeking justice involves. It is the State, of which the judiciary has been a part, which has ensured delay and denial of justice.
The Supreme Court order ignores the global struggles for justice waged irrespective of the passage of time and numerous other obstacles. These struggles have resulted in enactment of special legislation, establishing of new institutions and specific judicial interventions – including by the United Nations – to investigate and prosecute those accused of serious crimes, including war crimes and other international crimes. Spain, for example, has enacted a special legislation to investigate crimes committed during the Spanish civil war, despite the passage of 80 years. Bangladesh continues efforts to seek justice for crimes of 1971. International institutions such as the International Criminal Court and the International Court of Justice recognize this history of struggle in their founding statutes where there exists no time limitation for the pursuit of justice. The Supreme Court of India has itself recently taken a pro-active approach in for example the case of the 1984 Sikh killings where the court is reviewing the closure of cases by a special investigation team.
The Supreme Court order does not merely set a dangerous precedent for other courts – including the High Court of Jammu and Kashmir – but in fact mirrors the past and continuing approach of the judiciary (Supreme Court of India and High Court and lower courts in Jammu and Kashmir) with regard to human rights violations in Jammu and Kashmir. This order is essentially a re-affirmation of the understanding that the Indian State in unwilling to provide justice for victims of violence in Jammu and Kashmir. Therefore, this order highlights the urgent need for international institutions to intervene and investigate the crimes that have been – and continue – to be committed. Whether in the form of an inquiry by the UN High Commissioner for Human Rights or any other international body, there is a need for credible international investigations as the people of Jammu and Kashmir are reminded once again that the State – in all its forms including the judiciary – are unwilling to provide justice.
Jammu Kashmir Coalition of Civil Society