SC’s Refusal To Order Probe Into Ethnic Cleansing Of Kashmiri Pandits Is Very, Very Disturbing

On 24 July, a Supreme Court (SC) bench, headed by the Chief Justice of India (CJI) himself, declined to entertain a petition by an organisation – Roots of Kashmir. This petition sought an investigation into the mass murder of Kashmiri Pandits in the Kashmir Valley during 1989-1990. The court in its order stated that the instances of the crimes referred to were of 27 years ago and any evidence regarding them would be unlikely to surface at this point in time. The bench asked, “How can there be a probe into a matter that happened 27 years ago?”

This verdict was given despite the counsel for Roots of Kashmir stating that the tragedy affected 40,000 families and 700 lives were lost in that act of ethnic cleansing. To the CJI’s question regarding why they had to wait 27 years to file this petition, the counsel replied that the community (Kashmiri Pandits) had banked on legitimate expectations but successive governments only gave lip service to their cause.

To say that the verdict was stunning would be an understatement. The response from the common man varied from “Is this Supreme Court of India or Pakistan?”, “is it the forte of the SC or the investigation agencies to decide that any evidence on the matter cannot emerge after 27 years”, to “what is the limit in terms of years that the SC would permit to be investigated – 25, 10, five years and by what justification?”

But on a more serious note, does the SC realise this was about one of the biggest cases of ethnic cleansing in India after the 1947 Partition killings? So, the foremost question that the CJI and his judges must ask themselves is that notwithstanding the lackadaisical attitude of successive governments at the centre, coupled with obfuscation and prevarications of governments of the Jammu and Kashmir state, why did the SC continue to twiddle its thumbs on such a major tragedy? It is on record that the SC has taken suo motu notice and given directions even on small issues like making seatbelts compulsory on Delhi roads. So why has the SC remained mum all these years – was it under political pressure, terror threat, or for any other reason? Also, whether its recent ruling – that the army file an FIR for every encounter death – was mere judicial overreach into defence and security, or something else, would too remain a mystery.

President Ram Nath Kovind, as a Rajya Sabha member from Uttar Pradesh, had stated during a Parliament debate on 3 March 2006, that "if the appointing authority" of judges, that is the president, could be censured, so could the judiciary. He had said, "If any citizen of this country can criticise the president of India for his wrong-doing, I don't think it could be valid ... if the judiciary is exempted." He spoke at length during the debate on the contempt of courts (Amendment) Bill, 2006, moved by then law minister Hansraj Bhardwaj. Interestingly, he also mentioned that the then CJI had referred to corruption in the judiciary, adding, “even the chief justice of India had said that some percentage of the judiciary was corrupt. Of course, he can't be hauled up for contempt of court because he happens to be from the same community (of the judiciary)."

Events in the past clearly indicate that all judges are no holy cows. In 2010, former law minister Shanti Bhushan had moved the SC accusing eight former CJIs of being “definitely” corrupt and daring the court to send him to jail for committing contempt of court. He mentioned two former CJIs personally telling him that while they were in office, their immediate predecessor and immediate successor were corrupt judges. Names of these four CJIs too were included in the application. Significantly, the application read, "unless the level of corruption in the judiciary is exposed and brought in the public domain, the institutions of governance cannot be activated to take effective measures to eliminate the evil”.

Nothing was heard about this case thereafter, which is no surprise. In 2015, Markandey Katju, former SC judge, addressing lawyers at the Punjab and Haryana high Court had stated that 50 per cent of the higher judiciary consisting of SC and high court judges was corrupt. The Bar Council of India informed the SC in January 2017 that its ongoing drive had already cut the number of genuine lawyers to 55-60 per cent of those roaming court corridors across the country. So how many of such fakes (fake degree and no degree included) became judges would remain a mystery.

No official government figures are available on the exodus of Kashmiri Pandits from the Kashmir Valley. According to a number of authors, including Sumanta Bose (in his book The Challenge in Kashmir: democracy, self-determination and just peace published in 1997), approximately 100,000 of the total Kashmiri Pandit population of 140,000 left the Valley during the 1990s. Other authors have suggested a higher figure for the exodus, ranging from the entire population of over 150,000, to 190,000 of a total Pandit population of 200,000, to a number as high as 800,000. But even if the figure stands at 40,000 with 700 killed, should the SC palm off this national shame in such perfunctory manner? What is the relevance of 27 years when other cases as old as 1956 are pending; since 1956 in Rajasthan High Court, since 1958 in Jharkhand High Court and since 1961 in Orissa High Court? Besides, for criminal cases, the Allahabad and the Jammu and Kashmir high courts have cases pending since 1976 – as recently stated by Minister of State for Law and Justice P P Chaudhary in the Lok Sabha.

How did the SC arrive at the conclusion that no evidence can be gathered after so much time has elapsed? Is the SC aware in the first instance that as per news reports, 215 FIRs had been filed relating to murder of over 700 Kashmiri Pundits but till date not a single criminal has been punished by our courts – also quoted in a petition by citizens to the President of India. Are these FIRs and deliberate inaction on them evidence enough to order detailed investigation? Is the average age lowered to 25 years that the witnesses are dead and gone? All of these witnesses as well as the state machinery are logically alive and kicking, so why not let the investigation agencies carry out their task? Has the honourable court even bothered to listen to the complicity of the political rulers of J&K in the matter?

It is well known that when the genocide and ethnic cleansing was taking place, the then chief minister of J&K was holidaying in London and did not even bother to get back. Even today he is giving calls for azadi and siding with stone-pelters. The complicity of the politicians of J&K in shielding the corrupt and anti-national separatists is well known anyway. Is the SC comfortable with this state or are there other compelling factors to such verdict?

On balance, the SC would do well to review their verdict and order probe into ethnic cleansing of Kashmiri Pandits in the Valley. The government must intervene if the SC refuses to budge. The Kashmiri Pandits have been rendered stateless by design using force. They must be permitted to vote in J&K elections as non-residents. And finally, it is about time that abolition of Article 370 be put to the vote. Just four to five districts of J&K should not be allowed to take the country to ransom.