Open Letter to the Chief Justice of India, Chairpersons of NCW and NHRC

The following open letter to the Chief Justice of India and the Chairpersons of the National Commission for Women (NCW) and National Human Rights Commission (NHRC) by women’s groups was sent to us for publication in Mainstream in the last week of May but could not be used earlier due to unavoidable reasons. —Editor

Respected Chief Justice of India,

Chairperson of National Commission for Women,

Chairperson of National Human Rights Commission,

Subject: Appeal for justice in the case of rape and murder of Aasiya Jan and Neelofer Jan in Shopian, J&K, May 29, 2009

Today is the anniversary of the great tragedy in Shopian where Aasiya Jan, a young girl of 17 years, and Neelofer Jan, a young woman of 22, went missing and were found dead on the banks of Rambi-ara Nullah on the morning of May 30, 2009. Early investigations and evidence, and the systematic tampering of it, have implicated the security forces from the area, either of the crime, or at the very least of shielding the criminals, and obstructing the course of justice.

On August 17, the investigations in the case were handed over to the CBI, which has now called the deaths “natural” and by “drowning”, but the report fails to answer a number of questions:

1. How did Aasiya and Neelofer drown in Rambi-ara Nullah, a stream in which the water was barely ankle deep at most places? No-one has ever been known to drown in the Rambi-ara Nullah. It is important to mention that several witnesses in the CBI’s own report have mentioned that Neelofer’s body was completely dry from one side.

2. The CBI fails to answer how a search party consisting of police, family and friends, scouring the area for more than four hours could have ‘missed’ finding Neelofer’s body where it was found the next morning—barely hundred yards away from the bridge in a floodlit high security zone

3. While conducting the third post-mortem post-exhumation of the bodies, why did the CBI not call upon the two sets of doctors who had conducted the earlier post-mortems, as is the common practice?

4. Why did the CBI fail to heed the direction of the High Court to call a post-mortem team from the Medical College, Srinagar and choose instead to call a team from the AIIMS, New Delhi consisting of members who have a questionable reputation?

5. How can the CBI claim that the hymen of Aasiya was ‘intact’ after four months of burial in summer months? Not only has the CBI used this so-called ‘fact’ to ‘disprove’ sexual assault on Aasiya, but somehow they have used it to ‘prove’ no sexual assault on Neelofer as well… this despite several eyewitness and doctor accounts of bodily injuries on both victims. Further, the presence of diatoms which has been advanced as the main evidence for the theory of drowning does not substantiate death by drowning as the Rambi-ara Nullah is indeed the source of water supply for Shopian.

As if all these lacunae and lapses were not enough, the CBI has now framed serious charges against all who differed with their ‘findings’. Those charged by the CBI include doctors, public prosecutors, members of the Bar Association, witnesses, and family members of the victims for having acted under the influence of “separatists” and consequently falsifying evidence, or intimidating witnesses. That is all those who pointed to sexual assault and an unnatural death have been charged by the CBI. 13 people in all. It is also disturbing that a perfectly peaceful agitation of the Shopian residents under the banner of Majlis-e-Mashavarat and the Shopian Bar Association which initiated the investigations and cooperated with the police have been clubbed as ‘separatists’ and anti-national.

In direct contrast to the way the CBI has hounded the family of the victims, and the people of Shopian and everyone else who came into the case after the bodies of the two women were recovered, the CBI has requested the High Court to quash all charges against the police personnel who had destroyed/neglected crucial evidence at the site, failed to register FIR on time and committed other lapses as were amply evident in the Jan Commission’s findings. When asked by the High Court to produce fresh evidence in support of dropping the charges they gave lie detector test to the police and gave them a clean chit again.

What is even more distressing is that while this case is still pending, presiding judge, Justice B. Ghosh who was diligently monitoring the case and was responsible for the arrests of the police has been transferred out of the State.
All these ‘findings’ of the CBI are deeply contradicted by fact finding reports by three independent groups and the Justice Jan Commission appointed by the Chief Minister J&K, as well as the J&K High Court, which have all found cause to believe that the two women did not die a natural death and were likely victims of sexual assault and murder.

In the face of such serious lapses by the CBI, we call upon you, as the Chief Justice of India//Chairperson, National Commission for Women//Chairperson, National Human Rights Commission to initiate a fresh and impartial enquiry to ensure that the truth one day be told.

We hereby enclose two fact finding reports for your perusal and an article giving a brief critique of the CBI report and their partiality towards the police. We also request you to examine Justice Jan Commission report and that of the CBI investigation and the transcript of the lie detector tests.

It is well known that the heavy presence of armed forces and the police in Kashmir has led to a large number of sexual assault on women in the past as well. No justice has been secured for the women of Kashmir.

Let this not be one more case!

Looking forward to speedy and just solution of the case,
Sincerely,

Organisations:

Aalochan, Pune; Akshara, Mumbai; All India Progressive Women’s Association; Anhad, Delhi; Cadam, Delhi; Delhi Forum; Delhi Forum Against Oppression of Women, Mumbai; Gramya Resource Centre for Women; Hazards Centre, Delhi; Jagori, Delhi; Jagori Grameen, LABIA; Madhya Pradesh Mahila Manch, Bhopal; Manav, Delhi; Maraa, a Media Collective, Bangalore; Namma Manasa, Bengaluru; National Alliance of People’s Movements, Delhi; Nirantar Resource Centre for Gender & Education, Delhi; Partners for Law in Development. Delhi; Pratidhwani, Delhi; PUCL Andhra Pradesh; PUCL Rajasthan; Purogami Mahilla Sahngathan, Delhi; Saheli, Delhi; Sahiyar, Vadodara; Sama, Resource Group for Women & Health, Delhi; Samajwadi Jan Parishad, MP; Samanatha Mahila Vedike, Bengaluru; Sangini, Bhopal; Sangram, Maharashtra; Shramik Adivasi Sanghthan, Betul; Swayam, Kolkata; The Other Media, Delhi; VAMP, Maharashtra; VAMP, Karnataka; Vimochana Forum for Women’s Rights, Bengaluru; Vividha, Jaipur; Zubaan, Dlhi.

Indivuals:

Dr Ajita Rao, Delhi; Akhil Katyal, London; Akshara, Hyderabad; Anomita Goswami, Delhi; Anuradha Bhasin, Jammu; Anusha Hariharan, Delhi; Arati Chokshi, Bengaluru; Arti Sawhny and Kiran Dubey, Ajmer; Aryakrishnan Ramakrishnan, Thiruvananthapuram; Ashley Tellis, Hyderabad; Bindu Menon, Delhi; Chinmay and Saroj Mishra, Indore; Deepak Srinivasan, Bengaluru;
Dunu Roy, Delhi; Gautam Bhan, Delhi; Indu Jain, Delhi; Indu Prakash Singh, Delhi; Jaya Vindhyala, Hyderabad; Kavita Srivastava, Rajasthan; Lata Singh, Delhi; Lesley A. Esteves; Madhu Mehra, Delhi; Mangai, Chennai; Mary E John, Delhi; Mary S.; Maya Krishna Rao, Delhi; Nandini Rao, Delhi; Nandita Gandhi, Mumbai; Navaneetha Mokkil, USA; Neelima P.A., Delhi; Neha Kagal, Pune; Nalini Visvanathan, USA; Nidhi Agarwal, Himachal Pradesh; Nivedita Menon, Delhi; Pamela Philipose, Delhi; Pauline Gomes, Delhi; Penkoothu, Kerala; Ponni Arasu, Delhi; Pramada Menon, Gurgaon; Prarthana Mishra, Bhopal; Priya Thangarajah, Bengaluru; Pushpa Achanta, Bengaluru; Rajashri Dasgupta, Kolkata; Ranjana Padhi, Pune; Ratna, Bangalore; Rosemary Dzuvichu, Nagaland; Dr Rukmini Rao, Hyderabad; Sadhna Saxena, Delhi; Sangeeta Chattergee, Mumbai; Savita Sharma, Delhi; Seema Kazi, Delhi; Seema Misra, Delhi; Shabnam Hashmi, Delhi; Shipra Nigam; Shweta Vachani, Delhi; Sophie Murphy, Delhi; Sumit Baudh, Delhi; Sumi Krishna, Bangalore; Suneeta Dhar, Delhi; Tara Negi, Delhi; Dr Uma Chakravarty, Delhi; Urmimala Sarkar, Munsi; Urvashi Butalia, Delhi; Dr Veena R Poonacha, Mumbai; Dr Vineeta Bal, Delhi.

Annexures

1.MILITARISATION WITH IMPUNITY:
A Brief on Rape and Murder in Shopian, Kashmir, International People’s Tribunal on Human Rights and Justice in Kashmir (IPTK) http://www.kashmirprocess.org

2. A BRIEF CRITIQUE OF CBI THEORIES AND PRACTICE IN FOCUS:
CBI (Concocting Bizarre Interpretations) in Shopian

by Anuradha Bhasin Jamwal

JAMMU, April 10: ‘If you can’t convince someone, you confuse them.’
That was American President Harry S. Truman half-a-century ago. But right now, this is precisely how the government response to the Shopian rapes and murders (of May 29, 2009) and the campaign for justice that followed can be summed up.

From the very beginning the government response, to one of the biggest controversies ever in the history of Kashmir, has not been marked by consistency. The official investigating agencies—right from the Special Investigation Team of the Jammu and Kashmir Police to the Central Bureau of Investigation (CBI) have been busier spreading canards of lies, spinning rumours and using media as a tool to leak misinformation, rather than clearing the cobwebs.

The CBI report, based on its investigations, is in striking contrast to the Justice Muzaffar Jan Commission report which, despite its limitations and flaws, did indict the police personnel for tampering evidence and deemed it not just dereliction of duty but rather a deliberate calculated move. The CBI, which has cracked its whip on everybody—from the doctors to the lawyers active in the campaign for justice—has been too kind to the police personnel and given them a clean chit.

And to top up everything, Chief Justice Barin Ghosh, who had taken up a pro-active role in unravelling the truth, has finally been shown the
door and sent on a punishment posting for daring to go against the tide—for having ordered the arrest of police personnel last summer, monitoring the investigations by the SIT and now failing to acknowledge the CBI report as the gospel truth.

An impression is being created by the government as if the CBI report is the last word. Barin Ghosh’s unceremonious exit is not the only indicator. Chief minister Omar Abdullah, in his mid-summer madness last June, had done a flip-flop-first talking about ‘drowning theory’ and then admitting that ‘something has happened’ and that the two Shopian victims, Asiya Jan and Neelofer, are like his sisters, ensuring justice for them. After a winter of discontent, and facing brickbats on human rights front recently on the floor of the state legislative assembly he decided to finally break his silence as he endorsed the CBI report.

The CBI report running into hundreds of pages may on the face of it seem like an impressive document but only a closer scrutiny may reveal that all that glitters is not gold. It doesn’t take a legal expert to question the logics of the conclusions the premier investigating agency of the country has arrived at. Even an elementary school student with a keen eye can point out glaring flaws.

At best the CBI report is simply a compilation of FIR, statements, variety of post mortem reports (many of them to create as much confusion as the CID and SIT initially did), post-exhumation observations and set of conclusions for which no logic, evidence or explanation is offered. There has been no investigation and no need has been felt for the same.

A perusal of the entire report shows how the CBI has conveniently picked out on certain portions and skirted the rest, not even bothering to investigate the loose ends or the doubts that arise from the various statements that have been taken and recorded.

Just to quote a few of the inadequacies:

Role of policemen

The five police personnel indicted by Justice Jan Commission, and later arrested on the directions of the state high court, have been let off the hook without even questioning why they collected no evidence from the spot, failed to mishandle the law and order situation or delayed the lodging of an FIR. They have simply got a clean chit with a polygraph test, details of which are submitted in the CBI report, revealing that many questions have not even been asked, thus putting the effectiveness of the polygraph test in serious doubt.

SSP Javed Mattoo’s statement before the CBI reflects little on the facts of the case, investigations or what he did in his capacity when the incident came to light and Shopian broke out into protests. He simply talks from a victim’s perspective, talking about rumours and making political statements about ‘PDP and separatists’ working in close co-ordination against him and giving a picture as if the entire anger in Shopian was sparked by this nexus. Mattoo talks about SMSs being floated by media persons on 30th morning which led to problem. How does he arrive at this conclusion. What were the SMSs? Who was sending them? Then he talks about Dr Nighat’s ‘provocative statement’.

He was neither witness to it, he was simply told by someone. He doesn’t say who? The investigators don’t think these questions are important enough.

Not only Mattoo’s statement is politically incorrect, it suffers from factual inaccuracies. When the agitation first began in Shopian, the separatists or other political leaders were nowhere in the picture.

They only seized the opportunity few days after the anger became uncontrollable. For two days, the anger spilled out in form of unorganised protests, the first day of which was marked by a bit of violence. It was thereafter that the Shopian Bar Association and the Majlis-e-Mushawarat, both of which comprised of people with different political leanings—the Congress, NC, PDP, separatists or totally apolitical. The three-month-long campaign in Shopian was totally peaceful and the groups spearheading the agitation in this area cannot be held responsible for violent incidents in distant Srinagar or other parts of the Valley. The CBI conveniently does not draw any distinction between the two parallel agitations – by the local people and the others by separatists, PDP or other fringe groups. But more importantly, it simply laps up Javed Mattoo’s generalised over-view without any serious cross questioning about why a police officer of that ranking has no facts to narrate instead of making a political comment in his statement.

The police role in the case has been the most dubious of all and one cannot lose sight of the very significant observation made by the State High Court—that either they (police officials) are the accused or they know who has done it (rapes and murders). The observation was obviously made because there were too many flaws and inadequacies in the police story. The CBI, instead of questioning them, has merely endorsed them without even raising an eyebrow.

The most curious is the case of Inspector Gazi Kareem, who was among one of the accused police officials, arrested for over one and-a-half month. Interestingly, Gazi Kareem was not even on duty when the girls went missing and when the search teams were sent out. As Kareem himself says in his statement to the CBI, “On 30th (May 30, 2009) at around 11.00 pm I was informed by Head Munshi Riyaz Ahmed that the investigation of the matter was entrusted to me by the SHO and the relevant entries were recorded in the DD/ Roznamcha. Initially I protested on the ground that I was not aware about the matter and was not part of the investigation but despite my protest, the matter was entrusted to me and I had to follow the instructions of the then SHO.”

Why has this suspicious story of Gazi Kareem not been cross checked by anybody? He was not part of the search party but for forced by the SHO to take up the case. Why did the SHO insist? Doesn’t the CBI think this is significant? Medical reports The most important evidence in the hands of the CBI, as per its own claims, seems to be the post exhumation medical evidence. But just how valid and authentic can that be is easily questionable. The CBI quickly demolishes the previous medical reports, stating that there were multiple reports available and concludes that the doctors are the culprits. It is true that several different post mortem reports were doing rounds in the Valley during the first few months of the incident. But is there any evidence to blame the doctors. The CID department itself was found flashing a ‘fake report’ and claiming it was authentic till it was asked for a copy. So why is there no investigation? Obviously those who bungled the medical reports and samples had a motive. If the doctors indeed are the culprits, there should be enough evidence and investigations to subscribe a motive.

The doctors, in all probability, did not know the victims. They couldn’t have schemed up everything on behalf of the ‘separatists’, days before the incident even caught the attention of the latter.

Perhaps, it may have been more worthwhile to probe why the Director Health Services and the Director General Police (as revealed by the hordes of statements in the CBI’s report) were taking such exceptional interest in the post mortem reports, the forensic samples, ensuring that doctors accompanied the samples to FSL Srinagar and thereafter monitored everything till the reports were made public. Surely, in a state where medical legal cases happen by dozens on a daily basis, this might not be the normal course of action. Perhaps, this has escaped the CBI’s eye.

Quite conveniently, the credibility and image of the doctors, especially Dr Nighat—who has all along maintained that the two women were raped—was first tarnished, through media, and then the bodies were exhumed to make the post exhumation medical observances sound more authentic. Medical and forensic experts have pointed out that three months after bodies are buried, there is no chance of viewing ‘hymen’ or injury marks on the skin, which disintegrate. These bodies were exhumed four months after they were buried but the AIIMS team brought by the CBI miraculously found the hymen and no injuries. This is in striking contrast to Dr Nighat’s observations to Justice Jan Commission of Inquiry and the Independent Women’s Initiative for Justice, of which this author was a member. She has elaborately talked of a broken hymen, signs of sexual assault and injuries on the thighs.

What Dr Nighat said to the CBI has not been recorded in its report. It has merely been splashed in the media. Therefore, one does not know the authenticity of these versions that have appeared in the media with an obvious aim to tarnish the image of doctors and some Shopian activists rather than proving something scientifically.

So there are two very different sets of observations—one within a day of the death of the two girls and the other made four months later. Medically, it may be difficult to find the latter more reliant.

Drowning theory

So how does all this prove that drowning indeed took place? All that the CBI report has been able to prove is that the flow of water in Rambi-ara Nullah, where the two bodies were found, was faster on that particular day. There is no evidence of a depth fit enough for drowning. How come two women drowned there, just after 7.00 pm when it is still not dark at a time when an incident of drowning can easily be noticeable. After all, they must have struggled, shouted, screamed enough to be heard in a well inhabited and a fully militarised area, if that indeed was the case. The nullah itself is ankle deep at the spots were the two bodies were found. It may be knee deep at some places. If it was a natural case of drowning, the bodies should have been fully wet when they were found. The eyewitnesses have pointed out very clearly in their statements to the CBI that “only the right side of Neelofer’s body was wet”. Why has the CBI ignored such basic circumstantial evidence, which becomes more important in cases where concrete evidence cannot be produced.

Interpretations, not investigations

These are just some of the many samples that make the entire CBI exercise and its conclusions totally unrealistic and unpalatable.
Obviously, they have not even bothered to go through their own statements or conveniently ignored them, hoping that nobody would notice. It has simply taken the easy road of nailing those who dared to raise their voice and swam against the stream. The response clearly matches the stand of the governments, both in the state and at the centre, who have cleverly connived to bid adieu to Justice Barin Ghosh, the only person who had inspired hope and faith of the Kashmiris in the Indian system of justice. The reasons are a bit obvious and a bit mired in mystery. There is a definite cover-up to shield the men in uniform and in pursuance of that a bid to go to any extent, even negating the apolitical and peaceful nature of the campaign, trampling people’s faith, whatever little of it was left, in Indian democracy and its system of justice.

But then why a political flip flop?

All three investigations—by Justice Muzaffar Jan Commission and the CBI, which were in striking contrast with each other and the SIT, which did nothing—had the blessings of the government. Then why different lines? A part of the answer probably lies in the probability that no one in the official circles had pre-empted a well organised, peaceful, campaign, well within a legal framework. They were unnerved. It wasn’t easy to cover up without logics. It had to be done by falsifying whatever circumstantial evidence was available or through a perpetual of Goebbels truth. So, was Omar being bailed out temporarily for his initial ‘drowning faux pas’, which may as well have been an intended one, with the Jan Commission report? The CBI came into picture later, when it became a bit easier for the government to handle the scene and begin reversing the story. The Jan Commission report was demolished bit by bit—using mostly media and then a bit of paper work. But sorry, no investigations, no cross checking; no evidences either. Is that how the premier investigating agency of the country works?

Whatever be the reasons for this rigidity in shielding the guilty in Shopian case, truth and justice have become the ultimate casualty, the repercussions of which will not simply be felt by the family members of Asiya and Neelofar, or entire Shopian. They could be dangerously long term, impacting a greater political-social landscape of the region.