‘Unsubstantiated presumption’: Kashmiri Pandit body files curative plea in SC

‘Unsubstantiated presumption’: Kashmiri Pandit body files curative plea in SC
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NEW DELHI: Roots in Kashmir (RIK), a prominent Kashmiri Pandit organisation, on Thursday, headed back to the Supreme Court with a curative petition to seek an independent probe into the mass killing of pandits in Jammu and Kashmir during 1989-90, saying the top court’s 2017 verdict dismissing a similar request was based on an “unsubstantiated presumption.

In 2017, the organisation asked the Supreme Court to revive all FIRs filed for the death of nearly 700 Kashmiri Pandits, order court-monitored investigation of cases by an independent agency such as the Central Bureau of Investigation (CBI), and an inquiry commission to probe reasons for not prosecuting the FIRs by the then state government. The petition was heard and decided on April 27, 2017 by a bench comprising the then chief justice of India (CJI) JS Khehar and justice Dhananjaya Y Chandrachud.

“We decline to entertain this petition under Article 32 of the Constitution of India for the simple reason that the instances referred to in the present petition pertain to the year 1989-90 and more than 27 years have passed by since then. No fruitful purpose would emerge, as evidence is unlikely to be available at this late juncture,” the bench ruled in 2017.

Later, RIK filed a review petition challenging this order which too was dismissed without an open court hearing in October 2017.

Left with the option of filing only a curative petition to question the two dismissal orders, the organization said, “The judgment and order is liable to be reviewed on the ground that the order as it appears is based on absolutely unsubstantiated presumption that no evidence is likely to be available after the passage of time ignoring the fact that trials are also proceeding in some of the FIRs since 1996.”

It referred to the ongoing trial pending against Kashmiri separatist leader Yaseen Malik who is facing prosecution for killing four Indian Air Force (IAF) officers during the same period. “This court has completely failed to appreciate that more than 700 Kashmiri Pandits were murdered and FIRs were lodged in more than 200 cases but not even a single FIR has reached the stage of filing of charge sheet or conviction.” A dismissal of this petition would also impact the ongoing trials, the petition stated.

The petitioner organization drew a parallel with orders passed by Punjab and Haryana high court and Delhi high court with regard to the anti-Sikh riots of 1984 where investigation into some of the cases were revived after lapse of several years.

As a curative petition has to point out a clear “miscarriage of justice”, the petition filed by advocate Purnima Jauhari and settled by senior advocate Vikas Singh, said, “The orders passed by this court are manifestly erroneous and bad in law on the sole ground that delay is not attributable to victim families, many of whom have consistently sought to use all available forums to struggle for justice. Some victim families have not pursued cases due to the real fear and danger.”

The RIK petition has been filed through its managing trustee Amit Raina who agreed that collecting evidence “is definitely a daunting task but equally a compelling responsibility” vested on the court of law to protect and shield the rights of victims.

In its original petition filed in 2017, RIK sought prosecution of Yasin Malik and Farooq Ahmed Daar alias Bitta Karate, Javed Nalka and others in connection with the crimes against Kashmiri Pandits. They even asked that the probe into the 200 FIRs be handed over to CBI or NIA and sought transfer of trial to Delhi to protect witnesses in these cases.

“Communal harmony is the hallmark of a democracy. No religion teaches hatred. If in the name of religion, people are killed, that is essentially a slur and blot on the society governed by rule of law. Religious fanatics really do not belong to any religion. They are no better than terrorists who kill innocent people for no rhyme or reason in a society,” the petition said.

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