The Supreme Court on Monday admitted for hearing appeals by Jammu and Kashmir government and Indian Army against a high court order for investigation and compensation to the victims of 1991 Kunan Poshpora mass rape incident.
The apex court directed expeditious hearing of the appeals filed by the state government against various orders of the high court.
A bench of Justice J Chelameswar and Justice Sanjay Kishan Kaul granted leave on the appeal of state government and said all the interim orders will continue.
In 2013, a writ petition was filed in Jammu and Kashmir high court alleging that army personnel belonging to the Rajputana Rifles and 68 Mountain Brigade had raided the remote villages of Kunan and Poshpora in Kupwara district and had committed mass-scale rapes and torture of villagers.
According to the petition, on the intervening night of 23 and 24 February, 1991, separate teams of armymen had entered several houses in the villages, removed men of all ages into makeshift interrogation centres and tortured them. The plea alleged that over 30 women of the villages were raped by these personnel.
A SIT probe was sought in the plea for carrying out comprehensive investigation, besides seeking compensation and relief for the victims.
Standing counsel Shoeb Alam, appearing before the Supreme Court on Monday for the state government , said the compensation cannot be given as directed by the high court under provisions of Section 545(a) of the CrPC, which was introduced on 24 April, 2012 and notified on 23 April, 2013.
He said such a direction to pay compensation under a provision which did not exist at the time of the incident was contrary to law.
The state government also claimed that since the allegation was against army personnel, a direction to the state government for payment of compensation to the victims was without any legal backing.
The army has contended before the apex court that the allegations of rape and torture are “a hoax orchestrated by militant groups…part of a cleverly contrived strategy of psychological warfare…to discredit the security forces by indulging in false propaganda with a view to jeopardize the conduct of counter insurgency operations in the Valley”.
In December 2014, the state government had challenged the High Court orders before the Supreme Court on the issue of compensation, and got a stay on the orders. Army through government of India had chosen not to respond to the petition despite being given time and opportunity to do so by the apex court. There are three other petitions pending before the High Court related to the case.
One of the pleas is by the survivors, seeking investigations and prosecution, and second by the army, against the implementation of the State Human Rights Commission’s recommendations and, against the police investigations ordered by the Judicial Magistrate, Kupwara, on 18 June 2013.
Among others, the respondents in the SLPs include former Kashmir Divisional Commissioner Wajahat Habibullah and former Press Council of India member Vikram Rao.
Besides ordering compensation in favour of the victims, the high court was monitoring the investigation ordered by a judicial magistrate and subsequently upheld by Sessions Court in Kupwara.
However, a single bench of the high court on January 15 last year granted the stay on the army petition, which requested the court to annul both the orders—one passed on June 18, 2013 by judicial magistrate (directing re-investigation into the case) and another passed on August 8 by sessions judge Kupwara who had upheld it.
On February 23 last year, the division bench had questioned Union of India and the army’s approach leading to the stay of investigation into the infamous mass rape.
“Why did you go to the single bench when you knew that division bench is seized of the matter?” the division bench had asked soon after it was informed about the stay orders passed by the court’s single bench.
“Have you stated in your petition before the single judge that the division bench is monitoring the investigation?” the bench said while observing the “first virtue of humanity is justice.”
“Justice cannot be defeated by adopting such tactics. Try to do justice. There is a court above us all,” the bench had said.
Regarding the compensation, the state government on August 13 2014 had informed the court that it was ready to pay compensation but took a u-turn on the issue.
The high court had ordered payment of compensation in tune with the recommendations by the State Human Rights Commission.
In 2007, some of the victims knocked the SHRC, and the Commission in 2012 recommended re-investigation, payment of Rs 2 lakh as ex-gratia to victims and action against then Director Prosecution for closing the case in 1991 as untraced.
(Featured image: Supreme Court of India)