J&K rape case: Lies, false binaries used in defense of accused

Lawyers of the Jammu Bar Association burn tyres as they demand then transfer of Asifa murder case investigations to the CBI in Jammu on April 11

There are two predominantly visible strands in the heinous rape and murder case of 8-year-old Asifa. One is the perpetuation of the crime and the other is the discourse in defence of the culprits

There are two predominantly visible strands in the Asifa rape and murder case.

One is the perpetuation of the crime and the other is the discourse in defence of the culprits. The first stems from greed and partly communal anxieties. The other seeks to play up on those very anxieties and extrapolate them through pack of lies and propaganda to further perpetuate them into full scale communal polarisation. It is anybody’s guess who stands to gain from any communal polarisation of Jammu region in run up to the 2019 elections.

In the backdrop is the history of several decades with Jammu being treated as a twin pet project by the right wing ideologues for both countering the Kashmir narrative through communalisation of discourse and then showcasing the communalisation elsewhere in the country to whip up communal frenzy. The Congress ambiguity and silence on the issue once again reveals the party’s similar temptation to play second fiddle to the more venomous Hindutva discourse rather than countering it.

The Crime Branch charge-sheet, filed on April 9, makes the motives behind the criminal act of kidnapping eight-year-old Muslim Bakerwal girl, raping and murdering her pretty much clear. The act was horrifyingly pre-meditated and planned in a bid to scare the nomadic population from in and around Rasana village of Hiranagar tehsil in Kathua district of Jammu and Kashmir.

The word of the Crime Branch cannot be treated as gospel truth but there is no cause to generate suspicion of any wrong doing either. The charge-sheet is supported by the story of initial botch-up of evidence with the tacit involvement of police, collection of DNA samples from the purported site of rape and confessions of all the accused. Confession is often not treated as permissible evidence in the court of law but some other evidences are too glaring to be dismissed. The charge-sheet stands the test of scrutiny of the courts and it is important to ensure that this is done without allowing street discourse and mob mentality to influence the court room proceedings. On 9th the Crime Branch was faced with the ugly scenes of sloganeering and violence by local lawyers, obstructing its officers from filing the final charge-sheet before the Kathua Chief Judicial Magistrate.

The ugly discourse that has emanated in defence of the accused has distinct signs of a right wing hand. It started with the surfacing of Hindu Ekta Manch and appearance of national tricolours at a rally organised by it. The show was dominated primarily by the RSS activists and BJP leaders. Two senior ministers of the BJP, Lal Singh and Chander Prakash Ganga, addressed public rallies, video recordings of which are still in circulation, where they provoked people to disrupt the Crime Branch investigations, they chose to call ‘jungle raj’ and trivialised the crime of rape and murder as something ordinary and routine. Others in the BJP distance themselves from this discourse but have thrown their weight behind demand for shifting of the case to CBI. Yet others, even though they distance themselves from the hooliganism of the streets, are busy tarnishing the image of Asifa and her family by questioning why they are not being questioned by the investigators.

The ugly discourse that has emanated in defence of the accused has distinct signs of a right wing hand. It started with the surfacing of Hindu Ekta Manch and appearance of national tricolours at a rally organised by it. The show was dominated primarily by the RSS activists and BJP leaders

On April 11, the J&K High Court Bar Association called for Jammu bandh in defence of the accused. This is not the first time that the Bar has revealed its right wing political tilt. The limitations of being in power as a coalition partner in the state government, forbid BJP from openly coming out in support of the accused. It trains its guns on the shoulders of the Bar Association and other right wing formations, hoping to cash in a rich harvest of communal polarisation in 2019 Lok Sabha polls.

Whatever be the politics behind this endless drama being enacted, the demand for handing over the Asifa rape and murder case to CBI is morally, ethically and legally flawed. Normally, such demands are made by the victims dissatisfied with the investigations and legal proceedings and a call is taken on such demands from the perspective of doing justice with the victims. This is an unprecedented case of the accused alleging victimhood and seeking transfer of the case to CBI. The visible motive is to provide a cover of impunity to the rape and murder accused.

The demand is solely supported by a narrative that only one community is being targeted as accused. Such balancing of demographic identities is unknown in any criminal case and the law of any democratic country cannot be guided by such cheap divisive politics but only by evidence. Such a demand, therefore, sets a wrong precedent.

Those defending the accused are misusing the concept of “presumption of innocence”, which is considered to be the cornerstone of enlightened jurisprudence in a democratic society. Such a presumption has to be based on some grounds of concrete signs of wrong doing by investigating agencies, not on blanket contempt for the state’s investigating agencies and courts. The investigations were duly monitored by the state high court and all due processes were followed. So far, legally and ethically, there is nothing to suggest any wrong-doing. If the investigations are finalised and presented before the court, it is only logical to allow it to stand the scrutiny of trial before they are challenged.

The legal justice system, in any case, provides for legal rights of the accused to challenge the investigations in court of law and even thereafter, in case they are convicted. These remedies already exist with the Indian legal justice system.

Apart from the moral and legal illegitimacy of such a demand, it is vitiating the atmosphere and communalizing the society. In support of the demand is the usual business of peddling lies, confusion and building up canards of propaganda based on that. The ‘othering’ of the Muslims and Bakerwal community lies at its core and frenzy is being whipped up by accusing the nomads of harbouring militants and raising pro-Pakistan slogans. None of this is true. There is only one incident about three years ago in which member of the Gujjar tribe was caught for sheltering militants. That aberration is being magnified out of proportion to suit a discourse that is dangerously communal.

Amidst all this, the crux of the matter—the gruesome rape and death of an eight-year-old (allegedly raped and killed with proper planning) and justice for her—is forgotten. The case aptly points out to the new low that politics and communal discourse in this country has plunged into.

The author is Executive Editor The Kashmir Times

Also read:

The nowhere people of Jammu & Kashmir

Bakerwals in Jammu’s Kathua District living in fear of right-wing terror

Online petition laments ‘politicisation’ of rape, murder of J&K child

Kathua girl was raped, murdered to scare off nomads, finds police probe

DNA test confirms J&K nomad minor rape victim kept inside temple

J&K: Communal divide now splits lawyers in Jammu

Asifa case: Jammu protestors demand CBI inquiry; don’t know what CBI is

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