Recognition of victimhood vital for justice

GS Bajpai
Vice-Chancellor, Rajiv Gandhi National University of Law, Punjab

THE Union Ministry of Home Affairs has made it official in its annual report that 64,827 Kashmiri Pandits had to leave J&K due to terrorism in the Valley. This report clearly states the dimension of victimisation of the Kashmiri Pandits, even as the film The Kashmir Files has forcefully turned the spotlight on them. Recently, an organisation, ‘Roots in Kashmir’, representing Kashmiri Pandits, filed a curative petition in the Supreme Court. The fresh petition is against a 2017 judgment of the Supreme Court dismissing an earlier petition seeking a fair and impartial probe into the offences alleged to have been committed against Kashmiri Pandits. That petition had been dismissed on the ground that there was “no scope” of being able to secure any evidence after a delay of 27 years.

Much has been said both for and against the issue of facts quoted by all parties to the debate. The fact remains that testimonies of the Kashmiri Pandits are unequivocal accounts of their sufferings and plight. It cannot but be said that they were and are victims of crime. While the extant Indian Penal Code or special and local laws do not define “genocide”, they do define offences such as murder, rape, kidnapping, abduction, criminal intimidation, terrorist activities, unlawful activities, blasphemy, promotion of enmity between groups on ground of religion etc. as well as the conspiracy, abetment and attempt to commit any such offences. If the accounts of the Kashmiri Pandits are to be taken at a preliminary value, the ingredients of all these cognisable offences, and many more, stand satisfied.

This statement should be considered in the light of the fact that there is no reason for the State to not treat these accounts on a par with a statement made by an informant to an offence, irrespective of their demographic profile. Lady Justice wears a blindfold to indicate that the law does not discriminate. In this context, it becomes pertinent to ask why the Kashmiri Pandits have been denied the status of “victims” in our criminal justice system.

The fact that in most cases investigation and prosecution are at a standstill even after 30 years reinforces the perception that Kashmiri Pandits cannot be categorised as victims of crimes. This assertion operates in two senses. In the first sense, the very lack of investigation and prosecution is cited by those opposed to a “communalisation” of the issue as concrete proof of a lack of victimisation. The minuscule number of FIRs and official statistics are appended as evidence that no victimisation occurred. The fact that our criminal justice system considers even one single act or omission as an offence, irrespective of its motive, is by and large ignored by this narrative.

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

In the second, more institutional sense, section 2(wa) of the Code of Criminal Procedure which defines the term “victim” refuses the grant of recognition of a person as a victim until and unless an accused person has been charged for an offence. This is regardless of whether a person has suffered loss or injury as a consequence of the act or omission. The person can be treated as being charged for an offence only when a charge-sheet has been filed in the matter after the completion of investigation. Investigations in these cases, however, have been less than forthcoming.

Victim justice demands more. In the case of Mallikarjun Kodagali vs State of Karnataka, the Supreme Court unequivocally stated that such provisions must be provided “realistic, liberal, progressive and beneficial” meaning. In that case, the Supreme Court went to the extent of granting the victims of offences which had occurred prior to 2009, the right to file an appeal under Section 372 even though such right had been inserted only in 2009. There is little reason therefore to deprive the victims of their victimhood merely on procedural grounds that investigation has not been completed in the matter.

The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985), to which India is a signatory, defines a victim as persons who have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omission that are in violation of criminal laws. It is through these lenses that we must accord Kashmiri Pandits their right to be recognised as victims. Such recognition is replete with consequences, both procedural and material, for the victims. It enables them in accessing a gamut of other rights such as the right of access to justice and participation, right to assistance and most importantly, the right to seek compensation and restitution. The 2017 judgment of the Supreme Court refusing to order an investigation into the crimes against the Kashmiri Pandits on the grounds of delay in approaching the courts is, in this sense, a travesty of justice.

In our search for a meaningful criminal justice system, we must not forget that retributive justice is not the only legitimate purpose of criminal sanctions. Justice in its most encompassing and inclusive form must contain elements of fairness, inclusivity, equality, forgiveness, reformation and rehabilitation. For these elements to fructify, justice must be understood in its restorative, distributive, transitional, participatory and procedural senses. The decision of several state governments to accord tax-free status to The Kashmir Files may serve as recognition of the victimhood of the Kashmiri Pandits at the political level. But little is being done to grant complete victimhood to the Kashmiri Pandits at the institutional and legal levels. This requires immediate redress. The curative petition before the apex court is one such opportunity. It is as Martin Luther King Jr said: “Injustice anywhere is a threat to justice everywhere.”