ISSN (Online) - 2349-8846 Why the Kathua Case Cannot Be Seen Outside of India’s Nation-building Project SAMREEN MUSHTAQ AND MUDASIR AMIN Samreen Mushtaq ([email protected]) is a research scholar at the Department of Political Science and Mudasir Amin ([email protected]) is a doctoral student at the Department of Social Work at Jamia Millia Islamia, New Delhi. Vol. 53, Issue No. 19, 12 May, 2018 The Kathua case is enmeshed in state violence and impunity that has seeped into the institutional fabric of Jammu and Kashmir, be it the judiciary, the executive, or the military. The media and civil society back this impunity by targetting those who resist participation in India’s “national imagination.” The unprecedented outrage about the rape and murder in India ignored the context within which it took place. On 25 April 2018, when the Bar Council of India (BCI) in its fact-finding report submitted to the Supreme Court absolved the group of lawyers who obstructed the filing of a chalaan against the accused in the rape and murder of an eight-year-old in Kathua (Roy 2018), it did not shock many in Kashmir. The Supreme Court stayed the proceedings of the case until 7 May (Hindu 2018) and, in Kashmir, this script has become a little too common: Calling for probes in response to outrage against violations and then delaying the process until the incident fades from public memory and fatigue sets in because of a paralysed system of judicial redress. In the latest development, the Supreme Court on May 8 decided to move the trial to Pathankot. It is also important to note that on 13 May, the man who had provided the land ISSN (Online) - 2349-8846 for the eight-year-old's burial after the family was denied the right to bury her in the local graveyard, has alleged that he has been threatened by a leader of the Hindu Ekta Manch, the right-wing organisation that had taken out a rally in Jammu in support of the rape and murder accused (Business Standard 2018). While the workings of the state over the decades has tended to normalise the violence and lack of accountability in Jammu and Kashmir, even the post-colonial scholarship in India has focused mostly on bringing forth the wrongs of the colonial state. It has been more invested in "Cartographic nationalism that makes the Indian middle classes, from which public intellectuals are drawn, turn their backs upon regions of conflict. (Chakravarti 2016: 6)" Following the Kathua rape and murder, instead of the usual silence and enforced silencing, there was outrage in Indian media, civil society, and even from prominent individuals from the film industry. However, even in that outrage, the need was felt to integrate Jammu and Kashmir with India—"owning” the eight-year-old as “India’s daughter”—treating it as yet another case of rampant violence against women in India. The outrage missed out on highlighting how sexual violence in the Kathua context remains integral to the Indian government’s control over a “disobedient” population. Culture of Impunity Violence has been the central feature of the postcolonial Indian state to consolidate power, especially in areas like Kashmir that have been the “states of exception” (Agamben 2005), outside of the margins of the “nation,” yet integral to it. What would otherwise be illegal is made legal by intensive militarisation, aided by putting in place laws like the Armed Forces (Special Powers) Act (AFSPA). Beyond this, impunity to the perpetrators of violence in the name of the nation and the security of its citizens as against the Kashmiri "other" is also ensured. Nationalist constructions of nation states have often relied on marking the bodies of the “other” with acts of violence. The “other” is defeated especially by way of inflicting violence through the bodies of “their” women, whose honour is seen to converge with the honour of the nation. In Kashmir, acts of sexual violence are not individual but institutionalised and systemic forms of violence to teach a lesson to the “anti-national other.” While the state claims to uphold democratic credentials, it works as the grand patriarch to ensure breaking of the “collective will” by means of violence. State complicity in these acts has been visible through the years not only in terms of the impunity with which these acts have been carried out—be it in Kathua, Shopian, Kunan Poshpora, Handwara, Sopore or other such cases—but also in terms of how the entire power structure has worked towards perpetuating violence by denying justice and accountability in any of the cases. Rather, the state, in many cases, has rewarded and promoted the personnel accused of the crimes. Over the decades, the state has made use of sexual violence as a tool to silence the Kashmiris in the name of taking counter-insurgency measures. The state has also followed it up with ISSN (Online) - 2349-8846 institutional denial and subtle forms of everyday harassment, attempting to strip people of their very dignity. Under this culture of impunity, the mere repeal of a law is not going to ensure that violations do not occur. Rather, the system of impunity has to be dismantled because the varied acts of violence: killings, torture, rapes, enforced disappearances do not form an exception, rather they become the norm, converting into everyday insecurities for the people in Kashmir. The impunity also extends to non-state actors, who are engaged in carrying forth the writ of the state. There is not only a continuum of violence but also of impunity and protection of perpetrators under the guise of nationalism. This system thrives on “institutionalised humiliation,” surviving on “legitimising ideology,” that effects “degradation” or “social marginalisation” by way of coercion administered routinely by members of the “dominant group” as “the guardians of the system” or, more straightforwardly, by the “physical force of the state” (Parekh 2009: 31–34, cited in Hoenig and Singh 2014: 8). It is within the larger context of this militarised state structure functioning through institutional impunity to subject the “other” to violence that the Kathua rape and murder case and the subsequent role of the state institutions and civil society needs to be analysed. From Kunan Poshpora through Shopian to Kathua Kathua is not the only case of sexual violence within the disputed territory of Jammu and Kashmir, neither was it the only attempt to ensure institutionalised amnesia. The Shopian double rape and murder case: A Central Bureau of Investigation report of the 2009 Shopian double rape and murder case had dismissed the case as an incident of accidental drowning (strangely in ankle-deep waters of Rambi river)(Polgreen 2009). On 30 May 2009, the bodies of a 17-year-old and her 22-year-old sister-in-law were found lying in the stream, twelve hours after they had left their home for their orchard and having passed by army camps on the way. The doctors who initially examined them confirmed that the two had been raped, and this was followed by a forensic sciences laboratory report confirming the same, after which a case for rape and murder was registered (Bukhari 2009). Seema Kazi (2009: 13) notes: Shopian and other incidents of sexual violence preceding it cannot be subsumed under the rubric of ‘Violence against women’; nor must they be trivialised and depoliticised as "private"/non-political, ‘side effects’ of the crisis in Kashmir. They are central to the imaginings of the Indian state attempting to create a nation in Kashmir. ISSN (Online) - 2349-8846 The Kunan Poshpora mass rape case: On 9 March 2015, the Supreme Court stayed all the proceedings of the Kunan Poshpora mass rape case which had been reopened following a public interest litigation filed by 50 Kashmiri women in the Jammu and Kashmir High Court in 2013. The army counsel termed the reopening of the case as “akin to flogging a dead horse” and refused to cooperate in the investigations (Manecksha 2014). In 1991, when the case of mass rape in the twin villages of Kunan and Poshpora in Kupwara by a battalion of the 4th Rajputana Rifles had come to light, the Army had asked an investigating team of the Press Council of India, headed by B G Verghese to probe the allegations (Asia Watch 1993). It speaks volumes that the Army, which was the accused in the case, could decide whether or not to probe the matter and even got the opportunity to choose the investigation team. The seriousness of the probe is highlighted by the fact that the Press Council of India team never visited the village (Jaleel 2013). In a similar pattern, the BCI team did not meet the Jammu and Kashmir police who filed the first information report (FIR) against these lawyers, neither did they deem it necessary to take cognisance of the affidavit of the principal district and sessions judge that confirmed that the lawyers indeed obstructed the Crime Branch team (Ashiq 2018). The role of the Press Council of India 27 years ago, like that of the Bar Council of India in this case, to ensure a cover up, has only cemented the feeling of how the Indian civil society has always pushed its weight behind its forces in Kashmir for committing war crimes. The question that could be raised here is: How can this “isolated” incident be linked to a case of mass rape? This is not an isolated case and cannot be delinked from the larger context within which the crime was carried out. This is not merely a case of the Bharatiya Janata Party (BJP) shielding the perpetrators with its legislators openly rallying in support of the accused; it is also not about the Congress taking a soft Hindutva line, by holding candle-light protests in Delhi while simultaneously supporting the accused in Jammu (Jaleel and Sharma 2018).