Why the Kathua Case Cannot Be Seen Outside of India’s Nation-building Project

The Kathua case is enmeshed in state violence and impunity that has seeped into the institutional fabric of Jammu and Kashmir, be it the judiciary, the executive, or the military. The media and civil society back this impunity by targetting those who resist participation in India’s “national imagination.” The unprecedented outrage about the rape and murder in India ignored the context within which it took place. 

On 25 April 2018, when the Bar Council of India (BCI) in its fact-finding report submitted to the Supreme Court absolved the group of lawyers who obstructed the filing of a chalaan against the accused in the rape and murder of an eight-year-old in Kathua (Roy 2018), it did not shock many in Kashmir.

The Supreme Court stayed the proceedings of the case until 7 May (Hindu 2018) and, in Kashmir, this script has become a little too common: Calling for probes in response to outrage against violations and then delaying the process until the incident fades from public memory and fatigue sets in because of a paralysed system of judicial redress.

In the latest development, the Supreme Court on May 8 decided to move the trial to Pathankot. It is also important to note that on 13 May, the man who had provided the land for the eight-year-old's burial after the family was denied the right to bury her in the local graveyard, has alleged that he has been threatened by a leader of the Hindu Ekta Manch, the right-wing organisation that had taken out a rally in Jammu in support of the rape and murder accused (Business Standard 2018).

While the workings of the state over the decades has tended to normalise the violence and lack of accountability in Jammu and Kashmir, even the post-colonial scholarship in India has focused mostly on bringing forth the wrongs of the colonial state. It has been more invested in "Cartographic nationalism that makes the Indian middle classes, from which public intellectuals are drawn, turn their backs upon regions of conflict. (Chakravarti 2016: 6)"

Following the Kathua rape and murder, instead of the usual silence and enforced silencing, there was outrage in Indian media, civil society, and even from prominent individuals from the film industry. However, even in that outrage, the need was felt to integrate Jammu and Kashmir with India—"owning” the eight-year-old as “India’s daughter”—treating it as yet another case of rampant violence against women in India. The outrage missed out on highlighting how sexual violence in the Kathua context remains integral to the Indian government’s control over a “disobedient” population.

Culture of Impunity

Violence has been the central feature of the postcolonial Indian state to consolidate power, especially in areas like Kashmir that have been the “states of exception” (Agamben 2005), outside of the margins of the “nation,” yet integral to it. What would otherwise be illegal is made legal by intensive militarisation, aided by putting in place laws like the Armed Forces (Special Powers) Act (AFSPA). Beyond this, impunity to the perpetrators of violence in the name of the nation and the security of its citizens as against the Kashmiri "other" is also ensured.

Nationalist constructions of nation states have often relied on marking the bodies of the “other” with acts of violence. The “other” is defeated especially by way of inflicting violence through the bodies of “their” women, whose honour is seen to converge with the honour of the nation.  In Kashmir, acts of sexual violence are not individual but institutionalised and systemic forms of violence to teach a lesson to the “anti-national other.”

While the state claims to uphold democratic credentials, it works as the grand patriarch to ensure breaking of the “collective will” by means of violence. State complicity in these acts has been visible through the years not only in terms of the impunity with which these acts have been carried out—be it in Kathua, Shopian, Kunan Poshpora, Handwara, Sopore or other such cases—but also in terms of how the entire power structure has worked towards perpetuating violence by denying justice and accountability in any of the cases. Rather, the state, in many cases, has rewarded and promoted the personnel accused of the crimes. Over the decades, the state has made use of sexual violence as a tool to silence the Kashmiris in the name of taking counter-insurgency measures. The state has also followed it up with institutional denial and subtle forms of everyday harassment, attempting to strip people of their very dignity.

Under this culture of impunity, the mere repeal of a law is not going to ensure that violations do not occur. Rather, the system of impunity has to be dismantled because the varied acts of violence: killings, torture, rapes, enforced disappearances do not form an exception, rather they become the norm, converting into everyday insecurities for the people in Kashmir.  The impunity also extends to non-state actors, who are engaged in carrying forth the writ of the state. There is not only a continuum of violence but also of impunity and protection of perpetrators under the guise of nationalism.

This system thrives on “institutionalised humiliation,” surviving on “legitimising ideology,” that effects “degradation” or “social marginalisation” by way of coercion administered routinely by members of the “dominant group” as “the guardians of the system” or, more straightforwardly, by the “physical force of the state” (Parekh 2009: 31–34, cited in Hoenig and Singh 2014: 8).

It is within the larger context of this militarised state structure functioning through institutional impunity to subject the “other” to violence that the Kathua rape and murder case and the subsequent role of the state institutions and civil society needs to be analysed.

From Kunan Poshpora through Shopian to Kathua

Kathua is not the only case of sexual violence within the disputed territory of Jammu and Kashmir, neither was it the only attempt to ensure institutionalised amnesia.

The Shopian double rape and murder case: A Central Bureau of Investigation report of the 2009 Shopian double rape and murder case had dismissed the case as an incident of accidental drowning (strangely in ankle-deep waters of Rambi river)(Polgreen 2009). On 30 May 2009, the bodies of a 17-year-old and her 22-year-old sister-in-law were found lying in the stream, twelve hours after they had left their home for their orchard and having passed by army camps on the way. The doctors who initially examined them confirmed that the two had been raped, and this was followed by a forensic sciences laboratory report confirming the same, after which a case for rape and murder was registered (Bukhari 2009).  

Seema Kazi (2009: 13) notes:

Shopian and other incidents of sexual violence preceding it cannot be subsumed under the rubric of ‘Violence against women’; nor must they be trivialised and depoliticised as "private"/non-political, ‘side effects’ of the crisis in Kashmir. They are central to the imaginings of the Indian state attempting to create a nation in Kashmir.

The Kunan Poshpora mass rape case: On 9 March 2015, the Supreme Court stayed all the proceedings of the Kunan Poshpora mass rape case which had been reopened following a public interest litigation filed by 50 Kashmiri women in the Jammu and Kashmir High Court in 2013.

The army counsel termed the reopening of the case as “akin to flogging a dead horse” and refused to cooperate in the investigations (Manecksha 2014). In 1991, when the case of mass rape in the twin villages of Kunan and Poshpora in Kupwara by a battalion of the 4th Rajputana Rifles had come to light, the Army had asked an investigating team of the Press Council of India, headed by B G Verghese to probe the allegations (Asia Watch 1993). It speaks volumes that the Army, which was the accused in the case, could decide whether or not to probe the matter and even got the opportunity to choose the investigation team. The seriousness of the probe is highlighted by the fact that the Press Council of India team never visited the village (Jaleel 2013).

In a similar pattern, the BCI team did not meet the Jammu and Kashmir police who filed the first information report (FIR) against these lawyers, neither did they deem it necessary to take cognisance of the affidavit of the principal district and sessions judge that confirmed that the lawyers indeed obstructed the Crime Branch team (Ashiq 2018).

The role of the Press Council of India 27 years ago, like that of the Bar Council of India in this case, to ensure a cover up, has only cemented the feeling of how the Indian civil society has always pushed its weight behind its forces in Kashmir for committing war crimes.

The question that could be raised here is: How can this “isolated” incident be linked to a case of mass rape?

This is not an isolated case and cannot be delinked from the larger context within which the crime was carried out. This is not merely a case of the Bharatiya Janata Party (BJP) shielding the perpetrators with its legislators openly rallying in support of the accused; it is also not about the Congress taking a soft Hindutva line, by holding candle-light protests in Delhi while simultaneously supporting the accused in Jammu (Jaleel and Sharma 2018). The case is enmeshed with the system of impunity that has seeped into the institutional fabric of Jammu and Kashmir, be it the judiciary, the executive, or the military. And, this is backed by the media and civil society targetting a people who resist participation in India’s “national imagination.”

The continuum in state violence, from Kunan Poshpora to Shopian to Kathua to many other cases—ranging from the private to the public sphere, “individual”acts of violence to systemic and systematic forms of violence—reflects in the culture of impunity that pervades the system.

Divide and Rule: Creating the Jammu–Kashmir Binary

In the Kathua case, most of the outrage that has poured in has brought up the apparent divide between Kashmir and Jammu, as if to present the state as a saviour of the nomadic Muslim community, whom the Kashmiri population does not view within its “imaginations of the ‘self’.” This is then used to question the legitimacy of the Kashmiris’ aspirations, presenting the political movement in Kashmir as limited and not representative of the whole.

Such narratives reduce these communities to mere “differences” that can be brought up for maintaining a military hold over the territory in the name of diverse aspirations, rather than looking at them as political subjects in their own right (Bhan 2016). These fragmentations help the state to divide and rule, something that the postcolonial state has taken forward from the colonial system of governance in order to discredit legitimate demands. But, when an act of violence is committed in the name of pushing the nomadic community of Bakerwals out of Rasana (Times of India 2018), the actual fault lines cannot be ignored in the name of bringing up the Jammu and Kashmir divide.

This also points to a strong case of ensuring a demographic change in Jammu, to pit the entire region in complete opposition to a Muslim-majority Kashmir so as to maintain the political status quo.

In 1947, with the support of the Rashtriya Swayamsevak Sangh (RSS), the forces of Maharaja Hari Singh massacred over two lakh Muslims in Jammu, converting them from a majority in the region, into a minority (Naqvi 2016). This was the time when the people of the princely state of Jammu and Kashmir, starting from Poonch and spreading elsewhere, had risen in protest against the despotic Maharaja whose forces flared up communal violence in the region (Snedden 2013).

Whereas the Hindu–Muslim harmony in the region has often been invoked to romanticise a perfect past, mostly by speaking of “Kashmiriyat” along the same lines as India’s “unity in diversity.”

The narratives surrounding partition and the controversial “accession to India” miss out on explaining that even in 1947, “Jammu and Kashmir not only had clear ethnic and communal divisions, but also there was what might be termed a political fault line somewhere within the State to further undermine the value of any doctrine of Paramountcy which empowered a single Ruler to decide on his own the future for all his subjects”(Lamb 1994: 13).

Currently, “Kashmiriyat” is often being used as the means by the Indian government to deflect any crisis in Kashmir or to counter the opponents, turning the term into an empty signifier (Parrey 2017). Any sociopolitical acts by or any demands from the Muslims of the region is seen as being “anti-Kashmiriyat.”

Communal fault lines that have existed throughout the Dogra regime are overlooked by the state and a miniscule population of “misguided,” “radicalised,” Kashmiris is seen to be the reason for any uprisings in the region, threatening both “Kashmiriyat” and India’s “unity in diversity.” It is by no means a surprise that there have been attempts to improve the stronghold of Hindus over Jammu through active collaborations with the state.

The Politics of Tribal Rights

The conflict in Jammu and Kashmir has affected the development of these tribal groups who have faced severe marginalisation either in terms of political representation or other tribal rights.

While different regimes of the Jammu and Kashmir governments have been active in implementing different draconian laws to muzzle people’s voices, it has kept marginal groups, such as the Bakarwal–Gujjar community especially vulnerable by failing to implement the Forest Rights Act 2006 (FRA). The FRA ensures that some of the basic rights of tribal communities, such as forest-related livelihood and the right to collect and the right to use some minor forest produce including grazing.

As Anuradha Bhasin (2018) notes, the rape and murder committed in order to drive the community out ‘allows influential land grabbers enjoying political patronage to encroach on vast tracts of state and forest lands with impunity’, in addition to serving political vote bank interests of the Hindu right. 

Revocation of Article 370 has been the rallying point behind the BJP’s right-wing politics in the region. However, this is the only instance where the BJP is challenging and opposing the extension of Forest Rights Act to the State of Jammu and Kashmir by invoking the special status. It is not just the tribal identity of the Bakarwal–Gujjar community, but also their Muslim identity[1] that brings on the onslaught from the communal forces patronised by the state.[2]

The persecution of the Gujjars and Bakarwals, however, goes back to the Poonch uprising and events that unfolded in 1947. And today, the Bakarwal–Gujjar community is marginalised, since the absence of a sound policy framework makes it easy for the state to deny them tribal rights.

The Kathua rape and murder case is an extension of the atrocities meted out to a community to evict it from its land and deprive it of the basic right to life, which is how the overall functioning of the state in these sites of exception is ensured.

Nation-building Project and Selective Outrage

Perhaps no other act of human rights violations in Jammu and Kashmir has evoked as much outrage as the Kathua rape and murder case has. This is not to compare acts of violations but only to bring forth the selective approach of Indian media, civil society, and the public at large to express outrage at an incident devoid of the context in which it took place.

To call the Kathua victim as “India’s daughter” erases the oppressive politics playing out within the region that led to her rape and murder. Such a narrative also tends to deny that it is the very state structure, in the name of its people and their safety and security, that is impinging on the rights of the people of Jammu and Kashmir to a national imaginary of their own.

The act of sexual violence and murder cannot and must not be seen outside of the Indian state’s nation-building project over a territory that questions the legitimacy of its rule. To feel outraged at this incident also calls for calling out the state for militarily governing a population that has been demanding self-determination.

While debates and talks on Kathua continue, another case of militarised sexual violence recently came to the fore, in Poonch, where a woman accused a CRPF personnel of having raped her inside a camp in April 2018 (Times of India 2018).

In the cabinet reshuffle that the Jammu and Kashmir government announced on 30 April, Rajiv Jasrotia, the BJP MLA from Kathua who took part in the rally supporting the accused in the case, has been made a minister (Scroll 2018).

Kavinder Gupta, who was made the deputy chief minister, in his first interaction with the media, had said that the Kathua case was a “chhoti sii baat” (a minor incident) and need not be hyped (Indian Express 2018). On the same day, in Drabgam area of Pulwama in Kashmir, a civilian was killed where forces’ firing outside an encounter site where the locals clashed with Indian forces to help the trapped militants escape (Kashmir Life 2018). Thousands came together for the funeral prayers of the militants and the civilian. On 2 May in Shopian, civilians clashed with the state forces to prevent an anti-militant operation in Shopian. The armed forces opened fire, killing one civilian while the militants managed to escape (Gul 2018).  On 5 May, Shopian witnessed another bloodbath as Hizbul Mujahideen commander Saddam Padder was killed in a gunfight along with four other associates, one of whom was an assistant professor at the University of Kashmir. Five civilians were killed in the firing.


In such a climate of continued state repression, where closure evades the families and the collective at large for all the violence—the bloodshed, rapes and killings—they have experienced over the decades, what conclusion can one possibly draw?


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