Kathua rape: BCI’s clean chit to Jammu Bar worrying; CBI probe could go the same way

The BJP, as a party in power, doesn’t want to be seen as openly defending the accused in sexual violence cases. It is using institutions and groups, such as the BCI, to speak on its behalf 

Photo courtesy: PTI
Photo courtesy: PTI

Anuradha Bhasin Jamwal

In the law of the jungle, might is right. The lopsided report of the Bar Council of India team on the conduct of the Jammu and Kathua Bar Associations with respect to the Kathua rape and murder case shows where the barrel of the gun originates from and where it is aimed.

Kathua case is a text book case in sexual violence which shows that a culture of impunity goes beyond the institutional bias and systemic botching up. If Hindu right-wing organizations joined by associations like Bar Associations with visible right-wing leanings had shown ample signs of how political discourse can be churned up in defence of accused, a prestigious institution like the BCI, facing allegations of massive politicization and stinking rot, has fully manifested where the strings of this manipulation come from.

BCI's clean chit to the Jammu and Kathua Bar Associations, while overlooking glaring evidence of misconduct and several other facts, reveals the massive Operation Cover Up it became a party to. The BCI's clean chit to the lawyers who obstructed the functioning of courts, prevented Crime branch from filing charge-sheet before CJM Kathua and threatened and intimidated the lawyer representing the case of Kathua rape and murder victim adds yet another layer to the shocking plot. It seeks to bail out lawyers who have moved outside the courts to defend the accused in the case and resorted to sheer hooliganism.

The BCI visibly overlooked several factors. It has neither taken into account the plethora of photographic and videographic evidence revealing the manner in which the Crime Branch team was heckled and stopped from presenting its final investigation and charge-sheet before the court of the Chief Judicial Magistrate in Kathua. It also did not take into account the videographic evidence of the provocative and communal discourse of the Bar Association office bearers in rallies, calling for picking up AK-47s and resorting to violence amidst applauding supporters. Other fringe lawyers owing allegiance to the right-wing organizations have been openly advocating that Hindus not sell their lands to Gujjars and Bakerwals, branding them pro-Pakistan and pro-terrorism and even calling chief minister Mehbooba Mufti a 'jehadi'. The lawyers involved in obstructing the Crime Branch from presenting the charge-sheet in Kathua court are also on record to have admitted such actions on their behalf with a great sense of pride. None of this has been taken into account.

The BCI team has based its assumptions purely on the conversations with Bar Association executive members and a handful of lawyers supportive of the actions of the two Bar Associations. Even the opinions of the dissenting lawyers within these Bar Associations were not taken into account. The BCI team neither took into account the indictment of the Jammu and Kathua Bar members by the police and the Kathua court, nor had a conversation with senior media persons covering the conduct of the Bar Associations in the aftermath of the Kathua rape and murder. Instead it has made a blanket statement falsifying the entire media reportage.

While there is plethora of reportage and videographic footage as evidence against the Jammu and Kathua lawyers, the BCI team has simply called it a lie without even a scrutiny. Similarly, there is an affidavit filed by the Jammu and Kashmir High Court, the report of the Principal District and Sessions Judge Kathua and the state government. All these have said that the lawyers obstructed the Crime Branch team from filing the charge-sheet in the chief judicial magistrate's court, and that the police was forced to finally submit the charge-sheet at the judge's official residence, later in the evening. All these have been overlooked and instead those who have been indicted, their opinions and comments have been taken as the gospel truth.

The most absurd of all is the BCI's rejection of the allegations of lawyer representing the victim, Deepika Singh Rajawat, that she had been intimidated and threatened by Jammu Bar president BS Slathia. The allegations have been rejected on grounds that many women lawyers considered him a 'fatherly figure' as if that is an acceptable certification as per the law of the country.

That the BCI went a step further in not only giving the lawyers a clean chit but also putting its weight behind their demand of handing over the case to CBI is instructive of shocking bias and prejudice. Leave aside the absurdity of the demand for CBI probe being made by those supporting the accused, an opinion on this was not even within the scope of the visit of the BCI team. While a decision on CBI enquiries cannot be based on some kind of referendum but is often based on apprehensions of foul play or inefficient policing by investigators at the local level, such demands are raised for justice for the victim, not in defence of alleged perpetrators. The accused do not have the right to choose their investigating agency. But the BCI legitimizes this very notion.

The BCI is no holy cow. This is not the first time it has shown which side it likes to butter its bread. The BCI's representative character itself is under question mark because of its failure to hold elections in time. It has been selective in its approach. Earlier this year, the BCI issued notice to noted lawyer Dushyant Dave for his comments in the court during a hearing of the highly politicised case related to death of Justice Loya but not against the lawyers he accused of having conflict of interests. It stirred another controversy recently when it backed vice-president and Rajya Sabha chairman Venkaiah Naidu, who dismissed the impeachment motion by the opposition against the Chief Justice of India.

The prerogative of deciding the merits of the impeachment motion is with the parliament not outside it and certainly does not lie with the BCI. Yet, going a step further, it brought out a resolution stating that legislators who participate in removal of process of a judge of a high court or supreme court should not be allowed to practice before that court. The obvious targets were the Congress lawyers like Kapil Sibal and Abhishek Manusinghvi. There are ample number of cases in which BCI has shown its mesmerisation for the BJP government. Both in the Kathua and Unnao cases, the BJP has supported the perpetrators of sexual violence, not the victims.

The BCI report and comments have been guided by clear prejudice. This should be an indicator of how any probe by CBI, which has become notorious for performing the dirty jobs for the governments of the day, in the Kathua case would end up like. In the Arushi Talwar double murder case, which was not even political in nature, guided by possible whimsical attitude, the CBI turned the case on its head by nailing the parents without sufficient evidence.

Many investigations in Jammu and Kashmir have either ended up inconclusive or have become more mired in mystery when they were handed over to the CBI. The partisan manner in which the BCI has conducted itself while echoing the demand for CBI probe in Kathua case gives an indication of the possible outcome of any such probe.

The BJP as a political formation in power does not want to be seen as openly defending the accused in cases of sexual violence like Kathua and Unnao. It is using institutions and representative groups to speak on its behalf. With apprehensions of even the judiciary not being spared, there are dangerous fallouts of what the BJP is trying to do - not only with respect to justice in Kathua rape and murder, or any other case, but also with respect to the democratic functioning of the country.

(Anuradha Bhasin Jamwal is the Executive Editor at The Kashmir Times. The article first appeared in The Kashmir Times)

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Published: 01 May 2018, 12:56 PM