Ordinarily, a crime does not spark a widespread reaction from the public unless its guilt is so horrific that no normal human being’s conscience can remain untouched & unshaken by the weight of its gravity. One of such rarest & cruelest inhuman acts was recently done with an 8 year old Muslim girl in Kathua district of Jammu that outraged millions across creed & community lines at Indian & international level.
In the second week of January, 2018, a little girl, Asifa belonging to a nomadic [Muslim] Bakarwal community of Rasana village of Kathua was abducted, forcibly sedated, (gang) raped & murdered by a group of [Hindu] fanatics of the area under a “ plan to dislodge the [Muslim] Bakarwal Community from Rasana area” & “to terrorize” them [Muslims of the area] . The police investigations in the horrendous act led to the arrest of eight men including two policemen. Instead of supporting the victim’s family in getting justice, a Hindu Ekta Munch (Hindu Unity Movement) was launched in the area that brazenly supported the accused rapists-cum-murderers in the name of unity of Hindus, Hindu Gods & India, demanding their immediate release & pleading for their innocence. One of the protesters told the reporters that the arrests of the accused in the case were against their [Hindu] religion. (New York Times, dated 11-04-2018). BJP party which is coalition partner in the State government, toeing the line with Hindu Ekta Munch, too, demanded that the accused should be released. BJP, a pan-Brahman nationalist organisation, demanded to take “the case out of the hands of the State police & handed over to the Central Bureau of Investigation/CBI that would be they, argued, a better, more neutral agency to handle it. But many suspected this was an attempt to win leniency for the accused as CBI is an arm of the Union Government run by BJP”. [Ibid] The victim’s father told the media that they were not allowed to bury the corpse of the little girl in their “purchased” graveyard land in the village, Rasana, & that they were forced by the Right Wing Hindu groups to bury her dead body in a different village. Two State ministers of ruling BJP, Forest Minister Lal Singh Chaudhary and Industries Minister Chander Prakash rallied behind one of the pro-rape-cum-murder protests, although they later resigned from the cabinet under party’s directions. The horrible crime was planned in local Hindu temple by its priest, Sanji Ram, mastermind behind the heinous crime, along with other co-accused “as a way to terrorize the [Muslim] Bakarwals to drive them away”.
Shockingly, the support to the accused men & opposition to the investigation in the crime & filing of charge sheet against them in the CJM court Kathua were not confined to BJP politicians & local pan-Hindu groups only, Hindu dominated lawyers bodies, too, rallied for the pro-rapist-murderers protests. On 9th April, 2018, the State Crime branch was obstructed by the lawyers of the Kathua Bar Association from filing the charge sheet against the accused in the court of CJM, Kathua. The Jammu Bar Association called for a strike in Jammu on 11th April, 2018 “alleging that the Dogras of J& K in Hiranagar were being targeted in the probe [of Asifa rape-murder-case] by the State crime branch”.
It is noticeable that the day following, i.e., 12th April, the Jammu Bar Association’s strike, was international day of lawyers. On this day, the lawyers renew their pledge to defend the institution of justice, and help unprivileged & downtrodden people of the society in getting justice without hinderance. But the conduct of the Jammu & Kathua Bar Associations in this barbaric act brought only shame to this noble profession of which serious notice was taken by the Supreme Court & Bar Council of India, topmost lawyers’ body of India. Their acts amounted to “obstruction of process” & ultimately, “obstruction of justice”.
The Supreme Court, it goes without mention, has repeatedly emphasised that “the Bar is not a private guild, like that of barbers, butchers and candlestick-makers but, by bold contract, a public institution committed to public justice….”, (Bar Council of Maharashtra v. M.V.Dabholkar, AIR 1975 SC 2091 = 2 SCC 702= (1976) 1 SCR 306), and that “members of the legal profession have certain social obligations, e.g., to render “pro bono publico” service to the poor and the underprivileged. Since the duty of a lawyer is to assist the Court in the administration of justice, the practice of law has a public utility flavour and, therefore, the lawyer must strictly and scrupulously abide by the Code of Conduct behaving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society”, (Indian Council of Legal Aid and Advice v. Bar Council of India, AIR 1995 SC 691= 1 SCC 732), since “the profession of law enjoys high & respected status & reputation of its own and this status carries with it corresponding obligations. Naturally the Bar must zealously safeguard the highest standards of professional morality and integrity.” (Manak Lal, Advocate v. Prem, Chand Singhvi, AIR 1957 SC 425 = SCR 575; Devendra Phai Shankar Mehta v. Rameshchandra Vithaldas Sheth , AIR 1992 SC 1398= 3 SCC 473 = 2 SCR 687) On a sad note, one notices that the conduct of these lawyers disgracefully conflicted with their professional reputation & requirements.
The fanatic Hindu groups threatened Deepika S Rajawat, the counsel of the victim’s family of dire consequences. On a petition of a lawyer, PV Dinesh, the Supreme Court directed the State government to place “material” before it & provide “security” to the victim’s family & their counsel. The Bar Council of India condemned the unprofessional act of Bar Associations of Jammu & Kathua. The BCI stated that “if any lawyer is found guilty, we have rights to cancel his license for lifetime”. An FIR has already been filed against the erring lawyers who tried to prevent filing of charge sheet by the State crime branch in the court. Pursuant to the said developments, these Bar Associations called off “temporarily” their agitation in defense of the accused. Some Indian TV channels like Republic TV, etc, known for their pro-RSS, anti-Muslim & anti-Kashmir agenda held some talk-shows condemning these lawyers’ groups for supporting rapists & murderers in the case under discussion. Seeing huge public reaction against this sick-mentality of supporters of the guilty men, such pro-Justice-to-Asifa shows seem to be just “damage control” for the ruling party.
Kathua & Jammu Bar Associations by supporting most abominable men-headed beasts, who are charge-sheeted with gang rape & brutal murder of Asifa, have caused irreversible damage to the image of the lawyers’ profession. The lawyers of Jammu & Kathua by unashamedly supporting those found accused in this heinous crime have exposed the bitter truth that the roots of communalism are too deep in the thinking process of the pan-Hindu groups of these areas that it could so easily overtake these lawyers’ professional ethics & human conscience, even. Under the International law, rape is “torture” against the victim & if sexual violence is used as weapon to subjugate the victims & others, it becomes “war crime”, they are expected to know.
The Asifa rape-murder-case is being heard by the District & Sessions Court, Kathua. All wait for the full justice being done in this case. But there is a problem that the Protection of Children from Sexual Offences (POCSO) Act, 2012 which is applicable throughout India & which deals with Child Sexual Abuse (CSA) cases & which now by amendment approved to it by the President on 22nd April, 2018 provides for death penalty to those convicted of raping a child below the age of 12 years is not applicable to the State of J&K. The POCSO Act is victim-oriented law providing for establishment of special courts to deal with “aggravated” CSA cases, while the ordinary criminal laws under which the Asifa-case is being tried are criminal-oriented laws & mostly do not distinguish between adult & child. The State was required under the circumstances to take call on either adopting the Central POCSA legislation by following procedure under Article 370 or enacting analogous law at its own by exercising its legislative powers under the Constitution. Reportedly, the JK State Cabinet has on Tuesday (24-04-2018) adopted central legislation of POCSO by enacting J &K Protection of Children from Sexual Offences Ordinance, 2018 and passing the J&K Criminal Law (Amendment) Ordinance, 2018 that inter alia provide for death penalty for rape of a child below 12 years.
Well, so far, so good. The people should remember that recently the Indian Courts acquitted all accused in Makah Masjid (Hyderabad) terror blast case & co-accused ,Dr. Maya Kodani, ex-BJP Minister of Gujarat, in Naroda Patiya riot case of Gujarat carnage of 2002 for want of “sufficient evidence”. The delivery of justice depends on Evidence that is presented by prosecution but evaluated by the courts.
M J Aslam , Author, academician, storyteller & columnist, Presently AVP (JKB).