SC’s stitch in time in Kathua case

Anil Anand

Senior journalist
“Fear and fair trial are contradictory in terms and they cannot be allowed to co-exist.”

This observation of the Supreme Court made during the course of Kathua rape-murder case conveys much more than what meets the eye. It is in fact a depiction of the prevailing situation in Jammu and Kashmir, where the trial was proceeding under a communalised and politicised situation. So, it warranted an intervention by the apex court and hence this observation to ensure a free and fair trial.

The case now stands moved out of Jammu and Kashmir to the adjoining Pathankot (Punjab) for a SC-monitored hearing on a day-to-day basis. This was demanded by the eight-year-old victim’s family whereas the accused were for transfer of the probe from the state Crime Branch to the CBI.

Anyone, be it the victim or the accused, has the right to demand a free and fair trial and there is nothing new in this clamour for handing over the probe to the CBI as in most such cases the state police comes under the cloud of being ill-equipped and biased. 

 The disturbing feature of such a gory crime getting entangled in politics is true of this case. As the poor nomadic family of the victim was crying for justice and the accused, within their rights until proven guilty, yearned for justice, vested interests started having their way. Shockingly, the case acquired a hue of one between " a Muslim victim and a Hindu accused". The inevitable followed as religious bigots on either side, plunged into it.

They sought to assess and analyse the composition of the Crime Branch team based on the region and religion to which its members belonged and not their professional prowess. That became the basis for some to raise a spectre of attempts to fix the accused. Therefore, the call for a CBI probe gained currency along with high-decibel protests and bandhs paralysing the Jammu region. The obvious was an adverse reaction in Kashmir, with similar elements joining issue.

What is most intriguing is that while all this was happening, the state and the Centre governments ostensibly looked the other way and in many ways shunned their responsibility to ensure harmony in the state and to be vanguards in ensuring a free and fair trial, leading to justice. The state government had ordered the Crime Branch probe in January, 2018 and that investigations be completed in three months when the crescendo started building up and the demand for a CBI probe came.

It was at this stage that petty politics crept in. Adding to this situation, in the name of free and fair trial, parties and leaders, both of political and social variety, in pursuit of their objectives played on the sentiments of both the accused and the victims. What followed created an atmosphere of distrust and a deep divide. This does not augur well for this sensitive state, particularly with the security apparatus battling new forms of terrorism every day. The clamour for a free and fair trial was lost in the din until the Supreme Court stepped in. 

The state and, particularly the Central government, need to introspect why this situation was allowed to be built when Kashmir was on the boil. Yes, it is the duty of the judicial system to ensure a free and fair trial, but governments cannot shy from their duties of ensuring fair investigations, leading to effective prosecution. In this case, both the governments, with a dominant BJP, dithered whereas the opposition Congress and National Conference silently played to the gallery.

A crescendo was subsequently built around the demand for a CBI probe, with some leaders of the BJP in the state giving an impression of running with the hare and hunting with the hound. While its Deputy CM and ministers supported the Crime Branch probe, the BJP as a party, directly and indirectly, backed the demand for the transfer of the case to the CBI.

The question arises as to whether the BJP really stood for a CBI probe. A question also arises as to why its ruling alliance partner agreed to a Crime Branch probe, allowed it to be completed and the charge sheet filed before backing the clamour for transferring the case to the CBI. It would be difficult to accept that the BJP, heading the government at the Centre and a dominant partner in the state, could not convince the state government on a CBI probe. It is equally difficult to think that it was Chief Minister Mehbooba Mufti who all through had her way.

There was a strong case for the Union Home Ministry to have coordinated from the beginning and prevented the situation from taking such a turn. Governance and the rule of law should have taken precedence over demands of politics and in making certain that the family of the rape-murder victim got justice while making sure that no innocent was punished.

As the case got embroiled in controversies, doubts started emerging whether the family will really get justice or if some innocent would get trapped for a crime not committed by him. The timely intervention and wise counsel by the Supreme Court should lay these doubts to rest.