Right move


The Supreme Court verdict in shifting the Kathua rape and murder case outside Jammu & Kashmir is a welcome one, reviving hopes of justice for a girl who was horrifying killed after she was kidnapped and gang raped. The massive campaign to save the accused through whipping up Hindu majoritarian sentiments in the district and other parts of the Hindu belt of Jammu province had made it impossible for the court trial to be conducted smoothly and fairly. The right wing groups have taken to streets and whipped up frenzy against minorities and those campaigning for justice by perpetuating lies and resorting to propaganda, branding everybody as anti-national. Last month when the Crime Branch attempted to file the charge-sheet in the case before the judicial magistrate in Kathua, they were physically heckled and obstructed by the lawyers of the Kathua Bar Association. They were forced to present the charge-sheet later in the day at the residence of the judge. The lawyer of the victim, who has bravely and courageously stood up against all kinds of intimidations, was threatened by the Jammu Bar Association president and has been subjected to a demeaning social boycott and is constantly being trolled online. In such intimidating circumstances, the fairness of the trial in Kathua or Jammu was extremely vulnerable. The apex court’s observations that ‘fear and fair are contradictory in terms and cannot be allowed to exist’ while vacating the stay and transferring the case to the court of District & Sessions Judge Pathankot in the neighbouring state of Punjab is prudent. Kathua and Pathankot share a border which also puts to rest the apprehensions that moving the case outside the state would be intimidating for witnesses to attend the court proceedings. In terms of distance, Pathankot is extremely close and a town where an amiable atmosphere can be ensured for the trial proceedings. The court has also ensured the protection of the victim family and the witnesses and asked the state government to ensure that. The directions to hold the trial proceedings in-camera, to avoid any intimidations and inconvenience to the witnesses, as well as to fast-track the trial on a day-to-day basis to avoid any delay, will further provide stability to the judicial process. The apex court will continue to monitor the proceedings and has debarred any other court in the country from entertaining any petition related to the Kathua case. All this imbues hopes of effectiveness and fairness of the trial, which is the first imperative of the dispensation of justice. It also wards off apprehensions of lack of fairness towards the accused. The Supreme Court has based its verdict on the principles of the broader definition of fairness and observed that “fair trial” means fair to the accused persons, as well as to the victims of the crime.” Another significant aspect of the verdict is the rejection of the separate plea to hand over the investigation to the CBI on grounds that the court was dealing with only a petition seeking transfer of the case for the purpose of fair trial. “When charge sheet is filed, why should we want another agency?” Chief Justice Misra said. By implication, this is a rebuff to the pressures being exerted institutionally for a CBI probe by the Bar Council of India and backing of a so-called fact finding report, pressing for the same, by a group of women who had visible RSS or right wing links by some ministers in the union cabinet. The verdict on the petition for transfer of the case is based on the acknowledgement of the hooliganism displayed by Jammu lawyers and serious attempts to obstruct justice as well as on the intimidations to the lawyer of the victim, is a clear sign of upholding the official version of the situation created by the lawyers in Kathua court. The court’s decision to ignore the separate plea for a CBI probe shows the frivolousness of this demand and should now compel those trying to obstruct justice in various ways to show faith in the due process of law. The court verdict is overwhelmingly good, so far, and renews hopes of a fair trial for both the victim and the accused and this should be seen as a victory. This is a step towards justice. However, real justice is still to be dispensed.