Indian Supreme Court orders transfer of Asifa Bano gang rape and murder case to Pathankot

Thursday, May 10, 2018

On Monday, the Indian Supreme Court transferred the trial of the gang rape and murder of Kashmiri girl Asifa Bano to Punjab's Pathankot district. The Supreme Court asserted it was to ensure a fair and just result for the victim and the accused. "We are here for the fundamental concept of fair trial for both victims and the accused", the court said.

Asifa Bano was an eight-year-old Muslim nomadic girl of the Bakarwal tribe who was reported missing on January 10. According to the police investigation, she was kidnapped, sedated, held captive, and gang raped before she was strangled and killed. Her corpse was found in Kathua a week after her disappearance. All eight accused for Bano's rape and death are Hindus, of which two are police officials.

Bano's father approached the Supreme Court requesting the case be shifted to a different court, suggesting Chandigarh. Some of the accused asked the case be heard in Jammu and Kashmir. Bano's family and their lawyer, Deepika Singh Rajawat, had received death threats and personal threats. The Supreme Court, headed by Chief Justice of India, Dipak Misra, ordered continuing security for the victim's family as well as the lawyer. They also ordered continuing security for the juvenile accused for Bano's rape and death.

Stating fair trial is a "sacrosanct principle under Article 21" of the Indian constitution, which corresponds to the fundamental right to life, the Supreme Court said, "We are transferring the case to Pathankot from Kathua for trial [...] the case will be heard daily so that the verdict can be reached in a country where such cases can run for years or decades". Pathankot is a district in Punjab, and it is about 30 kilometres (about 20 miles) from Kathua. The Supreme Court also ordered the hearing sessions cannot be adjourned and in-camera to ensure the safety of witnesses. There are about 221 witnesses for this case. Statements in Urdu are to be translated in English. The Supreme Court instructed Pathankot's district judge not to transfer the case to any other court.

Three of the accused, Sanjhi Ram, Vishal Jangotra, and Parvesh Kumar asked for a probe by the Central Bureau of Investigation. Dismissing the plea, the Supreme Court said, "When charge sheet is filed, why should we want another agency?"

Per the charge sheet filed by Jammu and Kashmir police on April 9, Asifa Bano was raped at a place of worship.

Last month, after protests against the rape and murder of Asifa Bano in various cities across the nation, Indian cabinet ministers passed an ordinance allowing the death sentence for those convicted of raping a girl under the age of twelve. However, per Article 20 (1) of the Indian Constitution, the ordinance is not applicable in this case. Article 20 (1) states, "No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence."

The trial is to be conducted in accordance with the Ranbir Penal Code (RPC). Due to special provisions for Jammu and Kashmir mentioned in Article 370 of the constitution, the Ranbir Penal Code is applicable for Jammu and Kashmir; since the case falls in the jurisdiction of that state. The RPC, which is different from the Indian Penal Code (IPC), has been in effect since before Indian independence from [[Great Britain}]], when Ranbir Singh of the Dogra dynasty was the king of the then-independent state. Deepika Singh Rajawat, the lawyer who took Asifa Bano's case said, "There is not much difference between IPC and RPC, especially for rape and murder. Even though the order of sections are different, that would not affect the hearing of the Kathua case."

The next hearing is scheduled for July 9.