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Above: Separatist groups taking out a protest march in Srinagar demanding justice for the Kathua rape and murder victim/Above: UNI

By punishing six of the seven accused in the horrendous Kathua gang rape and murder of an eight-year-old, the judiciary has shown that justice is law’s business and not that of mobs, thereby reassuring society

By Pushp Saraf

One message has emerged loud and clear from the verdict of Pathankot’s district and sessions judge, Tejwinder Singh, punishing six of the seven accused in the Rasana (Kathua) gang rape and murder of an eight-year-old nomadic girl: the judiciary can and will conclusively overwhelm mobocracy to enforce the law of the land.

Step by step, the judiciary has demolished the gang mentality. The Supreme Court played a stellar role to pave the way for a fair trial, decisively shutting the door on those camouflaging their evil intention to disrupt it with politics and religion and at times both. In this context, the role of former J&K Chief Minister Mehbooba Mufti and the police crime branch also deserves kudos: the former pushed for investigation at considerable risk to the survival of her coalition government and the latter, once getting a go-ahead, brooked no resistance.

The apex court stepped into the picture to restore sanity after lawyers in Kathua prevented crime branch officials from filing a charge sheet in the chief judicial magistrate’s court on April 9, 2018 (they filed it at the magistrate’s home late in the night). Raising slogans, they demanded that the case be transferred to the CBI. The powerful Jammu-based Bar Association of the High Court joined the issue, mixing it with its protest against the illegal settlement of Rohingyas and Bangladeshis in the winter capital of J&K. It called for a strike and bandh. An organisation called the Hindu Ekta Manch raised its head in Kathua and held rallies in favour of the accused and waved the national flag and shouted slogans such as “Bharat mata ki jai” at one of its rallies. The BJP, riding high on communal and regional polarisation in J&K, lent support to such audacity when two of its ministers turned up at one of its demonstrations and were exposed to the charge of inciting the crowd. There was sharp reaction in the Muslim-dominated Valley on the other side of the Pir Panjal as people demanded justice for the victim.

At one stage, it did appear that the issue of the brutalities inflicted on an innocent child would be lost in the political and religious din. The nation was appalled. It poured its heart out on social media and staged candlelit marches to express solidarity with the victim. Celebrities expressed concern about the country’s image but were sought to be harassed. Tennis star Sania Mirza’s credentials were questioned as an Indian for having married top Pakistani cricketer Shoaib Malik after she tweeted: “Is this really the kind of country we want to be known as to the world today?? If we can’t stand up now for this 8 year old girl regardless of our gender, caste, colour or religion then we don’t stand for anything in this world…not even humanity…makes me sick to the stomach.” She stood her ground and hit back: “First of all nobody marries ‘into’ anywhere…you marry a person! Secondly NO LOW LIFE like you will tell me which country I belong to…I play for India, I am Indian and always will be…and maybe if u look beyond religion and country one day you may just also stand for humanity!”

The Supreme Court moved in swiftly and chastened those indulging in bluff and bluster. It taught quite a few lessons; the first was for the legal fraternity itself. On April 13, 2018, a three-judge bench of then Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud observed: “In our considered opinion no lawyer can prevent the advocates representing the accused or victim’s family in the case… Obstruction of process of law and delivery of justice, and that too by lawyers cannot be condoned and is unethical. Access to justice cannot be impeded by lawyers… It is impermissible under law and is unethical to prevent filing of charge sheet or oppose representation of victim’s family by lawyers.”

In a subsequent hearing, they were not impressed by the High Court Bar Association’s plea that it had not supported the lawyers’ protest in Kathua and that its call for a strike was over a different issue that got mixed up with the filing of the charge sheet. The chief justice remarked: “Whatever may be the background, the resultant action was wrong.” He added: “We are only concerned with a fair trial. They went on strike. That is wrong. Rule of law stands on the highest pedestal. Not just this case. We are concerned with other cases too. This should not happen in any case.” The Kathua lawyers washed their hands of the strike, saying that they had called it off.

The agitating lawyers darted for cover and the next lot to do so was the media. Some prominent media houses learnt at a bitter cost that publishing the name of a rape victim just because she was no more is unlawful. Acting Chief Justice Gita Mittal (incidentally, chief justice of the Jammu and Kashmir High Court at present) and Justice C Hari Shankar of the Delhi High Court, taking suo motu notice, reprimanded and fined them Rs 10 lakh each for revealing the identity of the Kathua victim. The bench also directed wide and continuous publicity for the statutory provisions of law regarding privacy of victims of sexual offences and punishment for revealing their identities.

Carrying on its salutary work, the Supreme Court on May 7 further removed any ambiguity there was about the definition of a fair trial. It observed: “A fair trial is a sacrosanct principle under Article 21 of the Constitution of India and a ‘fair trial’ means fair to the accused persons, as well as to the victims of the crime. The fair trial commands that there has to be free atmosphere where the victims, the accused and the witnesses feel safe. They must not suffer from any kind of phobia while attending the court.” It ordered the transfer of the trial to the district and sessions judge of Pathankot (in neighbouring Punjab) to be conducted under the Ranbir Penal Code, which is the criminal code applicable to J&K.  While doing so, it took cognisance of, among other arguments, the report of the district and sessions judge of Kathua to the Jammu and Kashmir High Court about attempts to influence the process of filing the charge sheet. Orders were issued for providing security to the victim’s family and lawyers and the transfer of the accused to a jail in Punjab.

Almost simultaneously, on April 13, there was fallout on the political front. Breaking his silence some three months after the post-mortem had confirmed the gang rape and murder on January 17, 2018, Prime Minister Narendra Modi clubbed the incident with a similar heinous crime in Unnao in Uttar Pradesh, and tweeted: “Our daughters will get justice.” His belated reaction coincided with UN Secretary-General Antonio Guterres terming the Kathua crime “horrific” and asserted that “the guilty must be held responsible”. Two BJP ministers, Choudhary Lal Singh (Forest) and Chander Prakash Ganga (Industry and Commerce), who were under fire for attending the Hindu Ekta Manch rallies, submitted their resignations from the Mehbooba Mufti-led coalition government, apparently following instructions from the top.

All this happened in 2018. The Supreme Court completely cracked down on herd behaviour. It ordered in-camera proceedings, fixed the number of lawyers who could be present in court at a given time and pre-empted interference from other courts. These ground rules provided Justice Tejwinder Singh with the foundation to build a glorious edifice in 2019. He has lived up to the trust reposed in him by the apex court to fast-track his task in about a year.

Admittedly, the last word has not been heard so far on this issue. Going by the utterances of relatives and lawyers of the convicts, it is evident that they are gearing up to challenge the verdict in the High Court.

Ahfadul Mujtaba, J&K’s Inspector-General of Police (Crime Branch), who headed the investigation, is satisfied with the “conviction of the accused but not with the quantum of their sentence”, indicating that he may seek enhanced punishment. One of his close colleagues in the case, Senior Superintendent of Police Ramesh Kumar Jalla has attained superannuation this year, while another colleague, Naveed Peerzada, a 2004 Kashmir Police Service officer who headed the Special Investigation Team, is currently on assignment with the UN.

Whatever happens in future will be within the contours fixed by the Supreme Court that justice is law’s business, not that of mobs. The apex court reiterated its stand while dealing with mob lynchings on July 17, 2018: “The horrendous acts of mobocracy cannot be permitted to inundate the law of the land. Earnest action and concrete steps have to be taken to protect the citizens from the recurrent pattern of violence which cannot be allowed to become ‘the new normal’. The State cannot turn a deaf ear to the growing rumblings of its People, since its concern, to quote Woodrow Wilson, ‘must ring with the voices of the people.’ The exigencies of the situation require us to sound a clarion call for earnest action to strengthen our inclusive and all-embracing social order which would, in turn, reaffirm the constitutional faith.”

This is very reassuring for peace-loving citizens.

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