An Open letter to S. J. M. Gillani, IGP, Kashmir

May 11, 2016

Dear Sir,

I am sure that you are aware of the Handwara Molestation and Double murder case. On 12 April, 2016, the Indian Army opened fire directly on the unarmed civilians resulting in the killing of two youths. Instead of investigating the killing of the youths, your police followed their counterparts of the Indian Police in Uttar Pradesh, who were investigating the murder of a Muslim (Mohammad Akhlaq) by a Hindu mob.

Let me remind you what happened in that case. A Hindu mob attacked the house of a Muslim, beat all the family members, and lynched the head of family over the rumor that they had consumed beef. After some time the police came to their house. Instead of taking the body for post-mortem and looking for the killers, they directly went to the refrigerator to take the meat out of it and send that for forensic test to check whether the meat they consumed was indeed beef!

Now let me remind you what happened here in Kashmir (Handwara). A minor girl was molested by an Indian Army soldier, some civilian boys came to the rescue of the girl, and the so-called disciplined military of India opened fire directly aiming for the heads of the young boys, resulting in the death of two youths and an old woman. Instead of investigating the cold blooded murder of these three civilians, your police detained the victim and her father and then recorded her statement in front of a video camera that she was not molested by the troops. Then they made that video go viral on social network and on TV channels of biased Indian media! This is a brazenly illegal act. We all know that this video was a cock-and-bull story recorded by your department to confuse the people, because your police are poorly trained in academies about how to investigate a case. They seem to receive their training by the exposure they get from watching Crime Patrol and Savdhaan India (both Indian television shows).

Sir, I know your police are trained in police training centres where they are only trained to use lethal forces on civilians. So I request you to send your police officials back to the Academies, were they could be taught proper procedures of investigation and laws. In the above case, your department has violated the whole POCSO Act, which was passed by the Indian Parliament in 2012, many of the guidelines of the Supreme Court of India and many Fundamental Rights of the girl, who was a victim of molestation.

Let me discuss some Sections, Sub-sections, and Articles one by one. In the definition part of “Protection Of Children From Sexual Offences Act” 2012, Chapter 1, Section 2, Sub-section 1 (d), “child” denotes any person below the age of eighteen years. In Chapter 6, Section 24, Sub-sections 1, 2, 3, 4, it is mentioned that;

1. The statement of the child shall be recorded at the residence of the child or at a place where he usually resides or at the place of his choice and as far as practicable by a woman police officer not below the rank of sub-inspector.
2. The police officer while recording the statement of the child shall not be in uniform.
3. The police officer making the investigation, shall, while examining the child, ensure that at no point of time the child come in the contact in any way with the accused.
4. No child shall be detained in the police station in the night for any reason.
5. The police officer shall ensure that the identity of the child is protected from the public media, unless otherwise directed by the Special Court in the interest of the child.

In the video, it can’t be judged whether the statement was recorded at the residence of the girl or not but surely the statement was recorded by a male police officer, which is against Section 24, Sub-section 1 because, as the case was reported in the main town, there was every possibility of finding women police officials for recording the statement.

The Sub-section 2 mentions that the officer who is recording the statement should not be in uniform, but the videographer seems to be more knowledgeable of laws than your officials because not even a single time he focuses his camera on the police official who was recording the statement.

There is every possibility that the victim came in contact with the accused (Indian Army) as the video was given by the Army to the media immediately after the incident, suggesting the possibility that video might also have been recorded by the Army.

The Subsection 4 mentions that “No child shall be detained in the police station in the night for any reason” but your people detained the victim from 12 April, 2016, onward. There is every possibility that the girl could be sexually harassed, threatened or pressurised etc. Some of your police officials said that the girl was under “protective custody” but what kind of protective custody is this, what kind of policing is this where the family members and the legal team representing the girl and even the mother of  this 16-year-old child is not allowed to meet?

Thus your people have not only violated the said section but also Article 22 (Protection against arrest and detention in certain cases) of the Indian Constitution, which is a Fundamental Right.

The Subsection 5 quotes that “The police officer shall ensure that the identity of the child is protected from the public media, unless otherwise directed by the Special Court in the interest of the child.” However, your intelligent and smart police officials made that video go viral, not thinking once about her security and privacy.

May I tell you that by circulating the video, your police have not only violated POCSO Act, 2012, but they have also violated the Fundamental Right of the girl – “Right to Privacy”, which falls under “Right to Life and Personal Liberty” (Art 21 of Indian Constitution).

Now I hope that your department, which only knows the use of brute state power on civilians of Kashmir, will take serious action against the officials who violated the rights of the said minor girl. And also your police department will file cases against the media channels (Zee, Times etc), which have shown the video, thereby violating the Section 23 of the said Act. Chapter 5, Section 23, Sub-sections 1, 2, 3, 4 mention that;

1. No person shall make any report or present comments on any child from any form of media or studio or photographic facilities without having complete and authentic information, which may have the effect of lowering his reputation or infringing upon his privacy.
2. No reports in any media shall disclose the identity of a child including his name, address, photograph, family details, school, neighbourhood or any other particulars which may lead to disclosure of identity of the child: Provided that for reasons to be recorded in writing, the Special Court, competent to try the case under the Act, may permit such disclosure, if in its opinion such disclosure is in the interest of the child.
3. The publisher or owner of the media or studio or photographic facilities shall be jointly and severally liable for the acts and omissions of his employee.
4. Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be liable to be punished with imprisonment of either description for a period which shall not be less than six months but which may extend to one year or with fine or with both.

Arnab Goswami, the head of the biased Indian media, Zee News, and many such channels have violated the said sections of the act. We hope for your immediate action in this regard.

Sir, being the son of this soil I hope you will now break the long cowardly silence which you and your predecessors have maintained for a very long time. I hope you will show some courage and act against the guilty, despite Central/State government’s pressure and order for the immediate release of the minor girl.

Yours truly,

Ameen Hussain Rather
(Student of Law at University of Kashmir, Srinagar)

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