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On March 24, 2022, a Kashmiri Pandit organisation named Roots in Kashmir filed a curative petition in the Supreme Court seeking probe into the killings of Kashmiri Pandits in 1989-90 by either the Central Bureau of Investigation (CBI) or National Investigation Agency (NIA).
The said plea was filed against SC orders in 2017 dismissing a plea for probe into the violence and the review petition against the said order on the ground that no evidence would be available after 27 years. In 2017, the bench had reportedly ruled, “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”. As reported by LiveLaw, Chief Justice JS Khehar and Justice DY Chandrachud had said, “What happened is heart wrenching but we can’t pass orders now.”
According to Live Law, the organization has now filed a curative petition arguing that “to dismiss the plea for probe on the sole ground of long delay amounts to a grave error apparent on the record.” As per Hindustan Times, it further stated, “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.”
The plea has sought the following prayers:
Investigation and prosecution of terrorists like Yasin Malik and Farooq Ahmed Daar, Bitta Karate, Javed Nalka and others, for of murder of Kashmiri Pandits during 1989- 90, 1997 and 1998, and which are lying un-investigated by J&K Police even after expiry of 26 years;
Transfer of investigation of all the FIRs/cases of murder and other allied crimes against Kashmiri Pandits in year 1989-90, 1997 and 1998, to an independent investigating agency like CBI or NIA or any other agency;
Transfer of all the FIRs/cases pertaining to murders of Kashmiri Pandits, from State of J&K to some other State (preferably State of NCT of Delhi), so that the witnesses, who were reluctant to approach police or Courts in view of their safety concerns, can freely and fearlessly come and depose before Investigating agencies and Courts;
Completion of trial and prosecution of Yasin Malik for gruesome murder of 4 officers of Indian Air Force on the morning of January 25, 1990, which is currently pending before CBI Court;
Appointment of an independent committee or Commission to investigate the mass murders and genocide of Kashmiri Pandits during 1989-90 and subsequent years, and also to investigate the reasons for non-prosecution of FIRs of murders of Kashmiri Pandits and Court monitored-investigation so that the hundreds of FIRs can reach their logical conclusion without any further delay.
Every curative petition is decided on the basis of principles laid down by the Supreme Court in Rupa Ashok Hurra Vs Ashok Hurra & another, 2002. A curative petition is to be filed with a certification by a senior advocate stating the substantial grounds for entertaining it. When the majority of three senior most judges and the judges who passed the concerned judgment (if available) conclude that the petition should be heard, only then would it be listed, preferably before the same bench. In this case, the certificate for filing the petition was issued by the President of the Supreme Court Bar Association, and former Additional Solicitor General Vikas Singh.
The discussion on 1989-90 Kashmiri Pandits Massacre has been doing the rounds since the release of a controversial Bollywood movie The Kashmir Files directed by Vivek Agnihotri based on the trials and tribulations of the Kashmiri Pandit community that was forced to leave their homes in wake of a Pakistan-sponsored intimidation campaign in the region. The movie has presented a dramatic version of the narrative, painting Muslims as villains and glossing over the responses or the lack of responses of the Bharatiya Janata Party (BJP) supported government of that time. The movie twists the narrative to generate communal hate.
The Kashmiri Pandit Sangarsh Samiti (KPSS) which has been closely observing the hate generated online and offline soon after the movie was released said, “The Kashmir Files makes resident Kashmiri Pandits unsafe.” As the hate continues to brew, it is also making the Muslims feel more vulnerable and unsafe now. Squarely blaming the government, KPSS president and Human Rights Defender Sanjay Tickoo has often asked, where is the security for KP families in the Valley? After all, 808 KP families continue to live in the Valley in relief camps amidst squalor and economic challenges even today.
Related:
The Kashmir Files making resident Kashmiri Pandits feel unsafe
Kashmir Files: Agnihotri cites exaggerated figures of 4,000 Kashmiri Pandit deaths
The Kashmir Files backed by PM, FM, CMs; continues to fuel divide