Many view the judicial system of Kashmir a nexus between politicians, bureaucrats and the judiciary.
In institutional sense, no, though individual instances cannot be ruled out. Personally, I’ve never experienced anything of this sort. One aspect of course is that ours is a closely-knit society and people happen to know each other so there’s is this ‘sifarish’ part-- a salient feature of our society. That sort of thing can happen but it invariably depends upon the judge who has to ensure that he’s not influenced.
It is believed that you were very keen to have the sex accused exposed before the public.
The whole story of the case is in the judgement. Somewhere in 2006, I noticed certain news items appearing in a section of the press, which were quite frightening. It had been very clearly reported that minor girls were being exploited by some people in power. Concerned about the gravity of the matter, I took cognizance and initiated so motto proceedings. Simultaneously, the High Court Bar Association filed a writ petition in the matter, which was treated a Public Interest Litigation and referred to a division bench. We asked the government to give us a status report as to what has been done and what was happening. The police also had conducted an inquiry into the matter and my impression is that had that inquiry reached its logical end, the case might not have attained that proportion which it later appeared to have.
But somehow that investigation did not conclude and we had to ask the CBI to step in. Government also passed an order. They referred the matter to the CBI and it took over. Then for around one year, we monitored the proceedings. In between a Special Leave Petition was preferred in the Supreme Court also but the order under challenge was kept intact, though they interpret it a little differently. Ultimately when CBI said they’ve concluded, we passed judgements in the matter. As per my judgement, those who were talked about against whom evidence came in the matter could be divided into three categories: First against whom there was enough material on record to direct taking of cognizance by a magistrate. Second against whom evidence or material on record was not enough to justify a direction for taking cognizance—but since there was material against them on record, they were named with a direction for further investigation against them. Third those whose names had been mentioned but material against them was not enough to name them in the judgement, so naming them would have not been apt. However, a fresh investigation was ordered against them. I mentioned the names of victims and victims who had to be re-examined for further investigation also.
The judgement copy of 8/10/2007 reads: The traders of flesh trade have to be brought to account, irrespective of their placement and position for which the Court cannot avoid indulgence. No body has been brought to book?
Perhaps the reason is the matter is pending before full bench of the court, unless they say something, it would not be possible for the agencies to follow up, though I personally feel that for settled parts of the judgement and un-assailed directions, there was no reason not to act, technically or otherwise.
At a recent meeting in University of Kashmir, you were quoted as saying: “For its own survival, the government hushed up the sex scandal.”
Perhaps the words used have not been reflected correctly, I said it involved people in and outside government, wanted the matter to be hushed up for their survival. It is my clear impression about the matter.
Why was the case handed over to the CBI?
As I said, local police had conducted investigation up to a particular level but somehow that could not reach its logical conclusion. There was a general public cry in the entire valley, so the government in order to measure up to situation referred the matter to CBI and that they wanted a comprehensive investigation into the matter.
Within the first three months of its investigation, the CBI had arrested two sitting legislators who had been former ministers, a DIG of the BSF, an IAS officer, a former additional Advocate General of the state and two Dy. SPs of the JKP. It was right on course, wasn’t it?
During first part, the speed of investigation was definitely better than later. When magnitude of the case expanded, the speed slowed down.
Many Kashmiris believe that the CBI quickly lost interest in the case because of its implications on the larger politics as culprits represented the Indian State in Kashmir?
I can’t comment on that. My impression is that the CBI did take off perfectly well but as I said, when the area that the case covered started expanding, the investigation automatically got diluted. Still then, I was not, as per my judgement, fully satisfied with the pace and the quality of CBI investigation.
The final report of the CBI had 18 persons though a 3rd list of the accused containing names from outside the state also, was never processed and as such scores of bigwigs involved in the scandal may have been let off.
I think that part of the story should be left with the full bench to deal with where the matter is pending.
The Court named the then Transport Minister Hakeem Yaseen, MLAs Ghulam Hassan Khan and Yogesh Sawnhey, DGP-rank officer Rajinder Tikoo, senior IPS officers Ashkoor Wani, Niyaz Mahmood and Shiekh Mahmood, former J&K Bank chairman Muhammad Yousuf Khan and owner of Hotel Broadway, Amit Amla. It is regarding these persons only that the CBI’s opinion of deficiency of evidence for letting them off had to be securitized. That never happened though?
That part of the case, I think, would be looked into by the full bench because this is one of the important aspects of the judgement I have delivered. I’ve also tried to suggest what shortcomings the investigations suffered in that behalf. The judgement is before the full bench and things may proceed from there on wards.
Why could you not arrive at a single judgement with your colleague, Justice Hakim Imtiyaz? It was sort of a split judgement, wasn’t it?
It was not a spilt judgement at all as there was no disagreement with the opinions expressed. Approach towards the use of case diaries and direction part differed. While I asked the CJM to take cognizance against the first category, directed further investigation into the second and reinvestigation into the third, the other honourable judge said that the entire material should be placed before the CJM to examine the material and then take an opinion on that.
How do you view the ruckus that the sex scandal created in the assembly after the former Deputy CM Muzaff Hussain Beigh’s levelled allegations against the chief minister Omar Abdullah and the patron of the National Conference Dr Farooq Abdullah?
Proceedings in the Legislative Assembly depend on how the worthy members view and react to various matters. It is not within my province to comment upon that. Legislative Assembly is their arena and there are rules by which they’re required to go. Whether they did or did not follow the rules, is for the speaker to decide. That part needs to be left to them.
The PDP has been demanding a fresh investigation into the sex scandal. How do view it’s role in dealing with the scandal when it was in power?
That was not my subject at all. I had nothing to do with who played what role. My knowledge about the case is based on the case diaries maintained by local police and the CBI. Local police diary has around 600 pages and that of CBI, 7000 pages comprising about 19 volumes. After going through all these case diaries, I arrived at certain conclusions. Who acted how, was relevant to me only in order to come to right conclusions in so far as the questions or circumstances under investigation were concerned. Performance of the government or any body from the government was not my concern at all. Demanding fresh investigation may be a view of the matter.
The Court observed that the occurrences reported are so horrifying that even a fraction only thereof would be a complete horror in itself. Under such circumstances, do you deem it proper that the case should be unearthed to the last man involved in the scandal? What would be its social implications?
I’d say an unqualified yes to that because the people, who ultimately surfaced as mentioned in my judgement, all happen to be high positions, enjoying all the amenities and conveniences of power. The matter has to be and must be probed to the last decimal. You see, you may tolerate a criminal committing a crime but you cannot tolerate a policeman committing a crime in uniform. You can tolerate an outlaw trying to subvert the system from outside but you cannot tolerate an insider subverting it from within by his commissions and omissions. Take the case of an officer of police or civil servant or a cabinet minister-- they’re keepers of the whole system and hold positions on which the whole edifice rests. In day time, they take salutes in parades, rub shoulders with the dignitaries and swear by the constitution, they can’t be expected or allowed to go otherwise during darkness of the night. If that happens, then society must stand up, take a strong note and act. On behalf of the society, the judiciary, the investigation authorities and the administration, must satisfy demands of the situation and if they do not, they will be failing themselves.
Moreover, if the society we’re living in is a healthy one, the implications would definitely be self-search and attempt to see what the reasons are, how did things come to that pass and attempt to initiate remedial measures. On the other hand, if it is diseased, then the entire social system suffers.
What legal significance does the case hold now? Should Kashmir forget about it altogether?
Legally the case is alive in all aspects. Forgetting it is anti-social. People can’t forget it, I’d rather say they should rather remember it, draw lessons and try to assess the rot that has stemmed into the social fibre and then take necessary measures to prevent it.
How far was it justified to hand over the Shopian rape and murder case to the CBI, knowing that their role was lackadaisical in handling the sex scandal?
At the stage and in circumstances it was done, it appeared to be right. The problem with Shopian is that it was mishandled at almost all levels by all concerned. Whenever a criminal offence takes place, it exclusively belongs to the realm of investigation and not to or political shadowboxing. In given scenario, the government was left with no option but to call in the CBI, especially when local police had reportedly denied to even registering an FIR. Something wrong with samples taken was also reported. I feel Shopian has become a difficult matter.
The interview was published in the December issue of the Conveyor magazine. Log on to www.conveyormagazine.com
Posts
