Kathua Case: A Communal Crime, Now a Communal Trial?

Only three weeks ago, the Bar Association of Kathua and the Jammu High Court Bar Association had proudly and loudly protested against filing of a chargesheet by the Crime Branch in the case of the rape and murder of the eight-year-old girl in Kathua. Now, the Bar Association is denying it did any such thing when asked by the Supreme Court. Even more shockingly, the Bar Council of India (BCI), which was to investigate the misconduct of the lawyers, is supporting these claims despite all the evidence that exists to the contrary – including videos from media coverage of the protest. This also includes the admission of the Kathua Bar Association itself in this press release:

J&K Police as well as the J&K state counsel have opposed the claims being made by the lawyer groups and the BCI report. S P Vaid, Director General of Police, J&K, said the five-member team of the BCI – led by former BCI chief Tarun Agarwal – never met the officials of Crime Branch or the J&K police. It is not possible for the BCI report to then present a balanced view of events, and the clean chit given to the lawyers of Kathua and Jammu High Court Bar Association cannot be accepted.

J&K government’s counsel Shoib Alam said, “This report is not reliable and should not be accepted because no officer of the J&K Police Crime Branch, who were actually prevented from discharging their official duty while presenting the chargesheet, has either been contacted or heard by the committee (of BCI). In the absence of the version of the officers, committee could not have concluded that the Bar didn’t interfere with the submission of the chargesheet.”

Prior to the BCI’s report, on Wednesday, the state of J&K had submitted an affidavit before the Supreme Court, drawing attention to the behaviour of the lawyers, who had protested before the Chief Judicial Magistrate on April 9, not allowing the Crime Branch to file the chargesheet in the case. Any delay in investigation of cases of such nature can prove to be a serious impediment to justice, as passage of time can affect analysis of evidence. This is a fact, which should be well-known to the lawyers. However, this did not stop them from hindering the process.

The Kathua Principal District and Sessions Judge has also submitted a report in the Supreme Court opposing the findings of the BCI. The report says, “As soon as Crime Branch team arrived in the premises of court, a group of lawyers resorted to massive and intense protest demonstrations.”

The BCI, in its report, has also endorsed the demand made by the lawyers to transfer the case to CBI. Yousuf Tarigami, CPI(M) leader and MLA from Kulgam, said in a statement: “The BCI panel has no authority to submit such a report. The Supreme Court has never directed them to file any such report as to their opinion on justifiability of a CBI investigation of the Kathua case. They were only directed to enquire and find out whether the local lawyers had obstructed the filing of the charge by the police/the trial proceedings.”

The SC bench consisting of CJI Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud, did not issue any proper response to these reports and statements, dismissing them, saying that they did not want the main issue of a fair trial to be missed. However, the communal nature of the crime cannot be ignored in any fair trial, neither can the communally charged demands by the lawyers and by the Hindu Ekta Manch (HEM). Hearing a separate plea, the SC bench has decided to stay the trial till May 7, to consider transfer of the trial to Chandigarh and handover of investigations to the CBI.

It is unclear what the transfer to CBI can achieve, when a thorough probe has already been carried out by the state authorities. Looking at the past record of the investigation agency in J&K, perhaps what can be expected, is bungled proceedings and no convictions. As pointed by Indira Jaising, legal representative of the victim’s father, this could be what the protesting lawyers and HEM want.

The Supreme Court, in its silence, is allowing for the issue to linger on, letting tensions in the area grow, and is also letting delivery of justice for the victim be delayed. 

BJP too is unwilling to admit that its ministers – Lal Singh and Chander Prakash Ganga, who had been active participants in HEM’s rallies supporting the rape accused police officers, have caused any hindrance to the investigations. Amit Shah, national president, has come out in support of the two ministers, saying that they have retired on moral grounds.

To defend itself, the Kathua Bar Association is also saying that their protest was not against the filing of the chargesheet (the timing and location of their protest make that hard to believe), but to seek the deportation of Rohingya refugees, and against the attempts being made by the Jammu government to bring about a change in demographics of the area. This demographic change, according to the protesting groups, will be achieved by granting of rights to the Gujjar Bakarwals to not be forcibly evicted. 

This forced vilification of the Bakarwal community, which is receiving state support, will only come back to bite this government. The Bakarwals are well-known amongst Army circles as providers of valuable intelligence of any suspicious movement along the Line-of-Control. As noted by retired Lt Gen Bhopinder Singh in his Asian Age column, during the wars of 1965, 1971, and the Kargil war, the Bakarwals were amongst the first to forewarn the Indian Army of any intrusion by Pakistan. 

This community, like many others in India today, is at fault because of its religious beliefs. But in these attempts to artificially create communal tensions, what will be lost, is justice for an innocent girl, and the trust of a community in a state already fraught with animosity towards India.