New Delhi: The Supreme Court’s decision to reject the demand by an organisation, Roots of Kashmir, to reopen 215 cases in which 700 Kashmiri Pandits were killed during the 1989-90 unrest in the Valley, on the grounds that 27 years have lapsed and thus “no fruitful purpose would emerge, as evidence is unlikely to be available at this late juncture,” has been criticised by the Jammu Kashmir Coalition of Civil Society (JKCCS) who say this is a complete departure from the established law that “crime never dies”.
In its order, the apex court had also refused to entertain a plea for re-investigation of the cases and re-trial of several persons, including separatist leader Yasin Malik, for alleged offences against the Kashmiri Pandits. The petitioner had claimed that while 215 FIRs were registered, the matter was not pursued as the Pandits were forced to flee the Valley. But the two-judge bench, comprising Chief Justice J.S. Khehar and Justice D.Y. Chandrachud, asked “from where the evidence will come” after the passage of 27 years.
In a scathing criticism of the judgment, the JKCCS, a federation of human rights organisations and individuals working in the state, said that as per established law “there exists no time limitation for justice under Indian and international law with regard to serious crimes such as murder”.
It said, “The Supreme Court order ignores the global struggles for justice waged irrespective of the passage of time and numerous other obstacles. These struggles have resulted in enactment of special legislation, establishing of new institutions and specific judicial interventions – including by the United Nations – to investigate and prosecute those accused of serious crimes, including war crimes and other international crimes”.
Recalling instances of nations punishing people for war crimes and other offences long after they had been committed, the JKCCS said, “Spain, for example, has enacted a special legislation to investigate crimes committed during the Spanish civil war, despite the passage of 80 years. Bangladesh continues efforts to seek justice for crimes of 1971. International institutions such as the International Criminal Court and the International Court of Justice recognise this history of struggle in their founding statutes where there exists no time limitation for the pursuit of justice”.
In fact, it said that the Supreme Court had itself recently taken a proactive approach in cases related to the killing of Sikh in 1984, with the court reviewing the closure of cases by a special investigation team.
The JKCCS also questioned the “absolutely unsubstantiated presumption” that no evidence is likely to be available 27 years after the Kashmiri Pandits were killed. Claiming that over 70,000 lives were lost and over 8,000 people had gone missing during the unrest, the organisation said, “To date, despite the presence of evidence, virtually no prosecutions have been conducted against armed forces personnel in civilian courts”.
It cautioned that “this deep and pervasive impunity will be further strengthened and supported by the recent Supreme Court order” as it also exonerates the state and its agencies that have chosen to protect the perpetrators of crime and have not allowed fair and credible investigations.
The JKCCS said the Supreme Court order does not merely set a dangerous precedent for other courts, it in a way serves as “a re-affirmation of the understanding” that the government is not willing to provide justice for the victims of violence in Jammu and Kashmir.