Acknowledging victimhood is vital for justice: The Tribune India



GS Bajpai

Vice-Chancellor, Rajiv Gandhi National Law University, Punjab

The Union Home Ministry has formalized in its annual report that 64,827 Kashmiri Pandits had to leave J&K due to terrorism in the valley. This report clearly spells out the dimension of victimization of Kashmiri Pandits, even as the film The Kashmir Files thrust them into the spotlight with force. Recently, an organization, “Roots in Kashmir”, representing the Pandits of Kashmir, filed a curative petition with the Supreme Court. The new petition is against a 2017 Supreme Court judgment rejecting an earlier petition calling for a fair and impartial investigation into alleged offenses against the Kashmiri Pandits. This request was rejected on the grounds that there was “no possibility” of being able to obtain evidence after a period of 27 years.

Much has been said both for and against the issue of facts cited by all parties to the argument. Nevertheless, the testimonies of the Kashmiri Pandits are unequivocal accounts of their sufferings and their plight. One can only say that they have been and are victims of criminal acts. Although the current Indian penal code or special and local laws do not define “genocide”, they do define offenses such as murder, rape, kidnapping, abduction, criminal intimidation, terrorist activities , illegal activities, blasphemy, promoting enmity between groups on the ground of religion, etc. as well as conspiracy, aiding and abetting to commit such offences. If the accounts of the Kashmiri Pandits are to be taken at a preliminary value, the ingredients of all these recognizable offences, and many more, are satisfied.

This assertion must be considered in light of the fact that there is no reason why the state should not treat these accounts on an equal footing with a statement made by an informant to an offense, regardless of his or her demographic profile. Lady Justice wears a blindfold to indicate that the law does not discriminate. In this context, it becomes relevant to ask why Kashmiri pundits have been denied the status of “victims” in our criminal justice system.

The fact that in most cases investigations and prosecutions have stalled even after 30 years reinforces the perception that Kashmiri Pandits cannot be categorized as victims of crimes. This statement works in two ways. In the first sense, the very absence of investigations and prosecutions is cited by opponents of a “communitarisation” of the question as concrete proof of an absence of victimisation. The miniscule number of FIRs and official statistics are appended as proof that no victimization has taken place. The fact that our criminal justice system considers even a single act or omission to be an offence, regardless of its motive, is largely ignored by this narrative.

This narrative is also emboldened by the fact that Kashmiri Pandits, belonging to a majority community in terms of Indian state demographics, are “less than ideal” victims. Nils Christie posits that in our conception, the ideal victim is weak and cannot be blamed for the offense and whose aggressor is evil, powerful and unknown to the victim. This stereotype of the ideal victim worked against the recognition of Kashmiri pundits as victims. In the larger context of the Indian state, the Kashmiri Pandits, being part of the majority community, can hardly be considered ‘weak’ and the community, having lived in Kashmir for millennia, was well known to the alleged offender. Instead, the popular narrative around Kashmir proclaims that vis-à-vis the Indian state, the majority community is in fact the ideal victim. How then can ideal victims become offenders?

In the second, more institutional sense, article 2(wa) of the Code of Criminal Procedure which defines the term “victim” denies the granting of recognition of a person as a victim until and unless that an accused person has been charged with an offence. This is regardless of whether or not a person suffered any loss or harm as a result of the act or omission. The person can only be considered charged with an offense when an indictment has been filed in the case after the investigation has been completed. Investigations into these cases, however, have been less than forthcoming.

Victim justice requires more. In Mallikarjun Kodagali v. State of Karnataka, the Supreme Court unequivocally stated that such provisions must have a “realistic, liberal, progressive and beneficial” meaning. In this case, the Supreme Court went so far as to grant victims of offenses committed before 2009 the right to appeal under article 372, even though this right had only been inserted in 2009. there is therefore little reason to deprive victims of their victim status solely on procedural grounds that the investigation has not been completed in the matter.

The United Nations Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power (1985), to which India is a signatory, defines a victim as a person who has suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial loss. violation of their fundamental rights, by acts or omissions contrary to criminal laws. It is through these lenses that we must grant the Pandits of Kashmir their right to be recognized as victims. Such recognition has serious consequences, both procedural and material, for the victims. This allows them to access a range of other rights such as the right to access justice and participation, the right to assistance and, most importantly, the right to seek redress and restitution. The Supreme Court’s 2017 ruling refusing to order an investigation into crimes against Kashmiri pundits on the grounds of delay in bringing cases to court is, in this sense, a travesty of justice.

In our search for an effective criminal justice system, we must not forget that retributive justice is not the only legitimate objective of criminal sanctions. Justice in its most comprehensive and inclusive form must contain elements of fairness, inclusiveness, equality, forgiveness, reform and rehabilitation. For these elements to bear fruit, justice must be understood in its restorative, distributive, transitional, participatory and procedural senses. The decision of several state governments to grant tax-exempt status to The Kashmir Files may serve as recognition of the victimization of Kashmiri pundits at the political level. But little is being done to grant full victimization to Kashmiri pundits at institutional and legal levels. This requires immediate repair. The curative petition before the Supreme Court is one of these opportunities. It’s as Martin Luther King Jr said, “Injustice anywhere is a threat to justice everywhere.”

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