[Reader-list] Rape : The Pattern of Impunity

[abir bazaz]

HUMAN RIGHTS WATCH

Rape by Security Forces: The Pattern of Impunity

Reports of rape by Indian security forces in Kashmir emerged soon after the government's crackdown began in January 1990. Despite evidence that army and paramilitary forces were engaging in widespread rape, few of the incidents were investigated, and fewer still resulted in criminal prosecutions of the security agents involved. In 1994, in response to international pressure, the government made public several courts-martial of soldiers accused of rape. In one case, on July 29, 1994, two soldiers were sentenced to twelve years in prison after being court-martialed for raping a village woman in Kashmir. However, the authorities have refused to prosecute many documented cases of rape, including the October 10, 1992, rape of nine women in Shopian. The findings of investigations ordered into many other incidents has never been made public, leaving the victims to believe that such abuse is committed with impunity. 

India's own criminal law makes torture a crime and explicitly prescribes punishments for members of the police or other security forces who have committed rape. Under Section 376(1) of the Indian Penal Code (IPC), a minimum term of seven years' imprisonment may be imposed for rape. In addition, the Criminal Law (Amendment) Act of 1983, which for the first time provided for the offense of custodial rape, prescribes a mandatory ten years' imprisonment for police officers who rape a woman in their custody. The sentence may be extended to life, and may also include a fine. Commissioned officers of the paramilitary and military forces are included under Section 376(2)(b) of the IPC and are thus also subject to this mandatory sentence. The Criminal Law (Amendment) Act (1983) also shifts the burden of proof regarding consent to the accused.

Despite the changes in the law, there is no evidence to show that the authorities have been willing to enforce it. Moreover, Section 155 (4) of the Indian Evidence Act remains in effect. It states:
 of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him . . . when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.

A survey of rape case judgments in the seven years following the adoption of the Amendment Act reveals that judges continue to base their decisions largely on the "character" of the rape victim, in effect blaming her, rather than her assailant, for the crime.

India's military laws, notably the Army Act and equivalent legislation governing the federal paramilitary forces, also prescribe courts-martial and punishments for members of these forces responsible for rape. In general, military courts in India have proved incompetent to deal with cases of serious human rights abuses and have functioned instead to cover up evidence and protect the officers involved. 

In one well-publicized case, in May 1990 a young bride, Mubina Gani, was detained and raped by Border Security Force (BSF) soldiers in Kashmir while she was traveling from the wedding to her husband's home. Her aunt was also raped. The security forces had fired on the party, killing one man and wounding several others. The government claimed that the party had been caught in "cross-fire." After the incident was publicized in the local and international press, Indian authorities ordered an inquiry. Although the inquiry concluded that the women had been raped, the security forces were never prosecuted. The government of India provided the following information on this case:

The inquiry was not held by the police but by a Staff Court of Inquiry. A criminal case was registered and investigated. Seven BSF personnel have been suspended.

The BSF personnel responsible had only been "suspended"—for a crime which carries a minimum ten-year sentence under Indian law.

In July 1990 police in Sopore registered a case against the BSF for the rape of Hasina, a twenty-four-year-old woman f
m Jamir Qadeem, on June 26 of that year. According to doctors at the Subdistrict Hospital in Sopore, the BSF had entered the neighborhood at about 11:00 p.m. after an exchange of cross-fire between their forces and some militant groups. The BSF had then conducted a search of the neighborhood. The doctors stated that when Hasina was brought to the hospital she had vaginal bleeding. The medical superintendent's report also recorded bite marks on her face, chest and breasts and scratches on her face, chest and legs, and injuries to her genital area. A police report filed on July 5, 1990 charged members of the BSF with rape.119

The reported rape on February 23, 1991 of a large number of women from the village of Kunan Poshpora by soldiers of the Fourth Rajputana Rifles became the focus of a government campaign to acquit the army of charges of human rights violations. The incident provides a telling example of the government's failure to ensure that such charges are properly investigated and that those responsible are held to account.

The rapes allegedly occurred during a search operation. The village headman and other village leaders claimed that they reported the rapes to army officials on February 27, and that the officials denied the charges and took no further action. Officials countered that no clear complaint was made. A local magistrate who visited the village requested that the divisional commissioner order a more comprehensive investigation, only to be told that officials in Delhi had denied the charges without checking with state authorities. A police investigation that was eventually ordered never commenced because the police officer assigned to conduct it was on leave at the time and was then transferred by his superiors.

In response to criticism of the government investigation, army officials requested the nongovernmental Press Council, a body composed of editors and other media professionals which monitors press laws and other issues concerning the press, to investigate the incident. A committe
uncil visited the village more than three months after the incident occurred. After interviewing a number of the alleged victims, the committee concluded in its report that contradictions in the women's testimony, and the fact that the number of alleged victims kept changing, rendered the charge of rape "baseless." The committee examined medical reports based on examinations conducted on thirty-two of the women two to three weeks later, on March 15 and 21, 1991, which confirmed that the hymens of three of the unmarried women had been torn. The committee concluded that the medical evidence was "worthless," that "such a delayed medical examination proves nothing," and that such abrasions are "common among the village folk in Kashmir." About the torn hymens, the committee argued that they could be the result of "natural factors, injury or premarital sex." 

While the results of the examination do not, by themselves, prove the charge of rape, they do raise serious doubts about the army's version of events in Kunan Poshpora. The alacrity with which Indian military and government authorities in Kashmir discredited the allegations of rape and their failure to follow through with procedures that would provide crucial evidence for any prosecution—in particular prompt independent medical examinations of thealleged rape victims120—undermined the integrity of the investigation and indicates that the Indian authorities have been primarily concerned with shielding government forces from charges of abuse. The Press Council report echoes the government's concern about international criticism by arguing that the charges against the army constituted "a massive hoax orchestrated by militant groups and their sympathisers and mentors in Kashmir and abroad . . . for reinscribing Kashmir on the international agenda as a human rights issue." 

In response to this report, the Indian government stated that the Kunan Poshpora case was investigated not only by the government but by an independent and highly regarded body, the Press Coun
ommissioner, Wajahat Habibullah, after his inquiry into the allegation stated, "While the veracity of complaint is thus highly doubtful, it still needs to be determined why such a complaint was made at all . . . I am of the opinion that the allegation of mass rape cannot be sustained." Another investigation at the level of Superintendent of Police concluded that the case was not fit to be prosecuted because of contradictions and gaps in the evidence.

It is significant that the government uses only selective comments from D.C. Habibullah's report, omitting the fact that he criticized the authorities in Delhi for dismissing the reports before any investigation had taken place, and recommended a thorough inquiry—which never took place. If the authorities had conducted a proper investigation, including a medical examination, and had taken semen samples from the accused, then it would be possible to determine the truth about what happened in Kunan Poshpora. The Press Council does not constitute a judicial investigative body, and the severe shortcomings of its visit have been noted above. A senior government official familiar with the incident revealed that although the number of women alleged to have been raped may have been inflated, they believed it was likely that several of the women were raped by the soldiers.

Even when investigations are ordered, they rarely result in prosecutions. A magisterial inquiry was ordered in the case of five women reportedly raped near Anantnag on December 5, 1991, but as of July 1995, no report has been made public. According to the Kashmir Times of January 14, 1993, the state government has ordered inquiries into eighty-seven incidents of killings, rape and arson. None resulted in criminal prosecutions. In seven courts-martial held between April 1990 and July 1991 involving incidents of rape, deaths in custody, illegal detention and indiscriminate firing on civilians by army soldiers, only one officer was dismissed. The most severe punishment for the remaining officers was eith
of "severe displeasure" in their files.121 

Those who have attempted to document incidents of rape have also been abused by Indian security forces. In November 1990 Dr. K., a surgeon at the Anantnag District Hospital, was arrested after he had made arrangements for a gynecologist to examine seven women who had alleged rape by security forces. The women, who had been brought to the hospital while Dr. K. was on night duty, reported that the security agents had disrupted a wedding and raped all of them, including the bride. On November 29, Dr. K. was arrested at his home by members of the Central Reserve Police Force (CRPF) who had surrounded his house. The CRPF blindfolded him, along with two friends who were with him at the time, and took them to a military camp. There, agents asked Dr. K., "Why did you call the gynecologist?" When he replied, "I treat people irrespective of who they are," the police interrogators beat him with lathis (canes) and a metal belt. His friends were also beaten in this way. The three men were detained for four days. 

The impunity with which Indian security forces commit rape can also be gauged by the function the threat of rape plays when security forces attempt to intimidate local civilians into carrying out their orders. After killing several reported militants in Sopore on October 18, 1992, BSF troops then ordered five men from the area to bring in the bodies, threatening that if they did not do so, the soldiers would "rape their women." When the men complied, and towed in the boat carrying the bodies of the dead militants and a boatman injured in the shooting, the BSF took the bodies and slit the throat of the boatman.122 

112 Numerous incidents of rape have been reported by Indian and Kashmiri human rights groups. See, for example, Committee for Initiative on Kashmir, Kashmir Imprisoned (Delhi: July 1990).

113 For more on this case, see Asia Watch and Physicians for Human Rights, The Human Rights Crisis in Kashmir: A Pattern of Impunity (New York: Human Rights Watch, 19

114 Custody is customarily understood to include situations where the victim is effectively under the control of the police or security forces and is not limited to conditions of detention in a prison or lockup. 

115 Indian Evidence Act, Section 114-A. The inclusion of this provision in the Criminal Law Amendment Act provoked considerable controversy among civil liberties groups, women's organizations, bar associations and others. See Flavia Agnes, "Fighting Rape—Has Amending the Law Helped?" The Lawyers, February 1990, p. 6.

116 See Amnesty International, "India: New Allegations of Rape by Army Personnel in Jammu and Kashmir," AI Index: ASA 20/02/93, January 1993, p. 3; and Agnes, "Fighting Rape...," pp. 4-11.

117 Agnes, "Fighting Rape... ," pp. 4-11.

118 Amnesty International, India: Torture, Rape and Deaths in Custody (London: March, 1992), p. 21.

119 Asia Watch, Kashmir Under Siege, p. 87.

120 For example, the investigation could have availed itself of internationally accepted forensic procedures to substantiate the charges.

121 South Asia Human Rights Documentation Centre, "Massacre in Sopore," January 31, 1993, p. 12.

122 For a full discussion of this case see Asia Watch and Physicians for Human Rights, The Human Rights Crisis in Kashmir, pp. 40-41.