T

Since, in cases of “disappearance”, the arrest is invariably disputed, we examined the validity of the allegations of arrest in each case, in the context of the evidence on record. Our investigation of the facts and the judicial findings show that in a majority of the cases there was sufficient evidence to establish that the arrest and the subsequent disappearance took place, as alleged by the families. Further, the patterns revealed by the cases as a whole lend veracity to the allegations of arrest and disappearance.

The petitions reveal a failure of justice of epic proportions. It is not enough to blame the state, the army, the Border Security Force (BSF), the Central Reserve Police

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Force (CRPF), etc. The failure goes beyond the obvious mala fides of the executive. The analysis makes it clear that the judiciary is fully complicit in the theatre of the absurd that is being played out in Kashmir at this very moment. The complete lack of seriousness about the dispensation of justice and the complete lack of faith in justice are startling, to say the least, when seen as reflected in the conduct of a constitutional authority such as the high court. It is like having an election commission which by its conduct makes it clear that it has no faith in the possibility of free and fair elections. What would be the sanctity of an election conducted by such an authority?

Though the analysis is based on disappearances that are from six to 17 years old, its relevance to the current situation cannot be doubted. The recent reports of enforced disappearances and fake encounters in Kashmir show that the province continues to be “ruled by the sword” of the Indian state. Thus, notwithstanding the elaborate normative framework that attempts to assure every person life with equality, dignity and self-fulfilment, the state has consistently armed itself and its institutions with the power of draconian laws, more befitting a dictatorial regime. The assurances work intermittently at best but the latter set of laws, and the personnel who operate them are always at work. Further, a process of executive mala fides and judicial pusillanimity melds these laws into impenetrable armour protecting the security forces in Kashmir from facing the consequences of their crimes. The outcome is an impunity that enjoys the best of both worlds: de jure as well as de facto.

The legal core of this process of impunity lies in the power of the state to control (read, prevent) the prosecution of “public servants” and “members of the Armed Forces of the Union” who commit crimes “while acting or purporting to act” in the discharge of their official duties. A series of facts can be stated to show the existence of the decision to allow security forces the freedom to commit crimes, without fear of repercussion.

First, is the impunity of action that they enjoy by virtue of the powers conferred upon them by the Armed Forces Special Powers Act (AFSPA).3 Section 4 of this Act empowers “Any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed forces”–

(a) The authority to arrest, to search and, to seize without a warrant;

Freedom to Commit Crimes

Having conferred the power to act with impunity, Section 7 of the Act bars all “legal proceedings” against “any person” for “anything done or purported to be done in exercise of the powers conferred by this Act”, except with the prior “sanction” of the central government. Though the Supreme Court has made it clear in a number of decisions that the protection conferred by this provision does not cover criminality or criminal acts, it is almost universally interpreted to grant immunity from prosecution of any kind, in the absence of the central government’s permission.4 Needless to say, the central government’s record is abysmal: it routinely rejects permission, even in cases where there is cast iron evidence to support the allegations.

Next is the decision to disconnect the normal law enforcement machinery, qua the operations of the armed forces. In almost none of the cases studied did the police make any real attempt to investigate complaints against the security forces. Most survivor families stated that the police refused to register complaints about their family member’s arrest/abduction. The police claimed that they were under instructions not to register cases against the security forces. Even when they did register the case, the police made very little attempt to investigate the complaint or to book the culprits. The courts were of no help. In several cases it was reported to us that the police explicitly said that irrespective of what the courts might say, their instructions were very clear: they were not to investigate or take any action on complaints against security forces.

The third facet of this design comprises the failure of the high court to enforce its authority to do justice. The responses of the security forces to the petitions filed before the high court are an example of this failure. Our study shows that they blandly deny arrest even when there are eyewitness testimonies to prove the same. They also stonewall and stymie the court’s process at every step, using delay as an effective tool of attrition. The high court succumbed in the face of such intransigence, allowing the power of judicial redress to slip out of its hands. In not one of the petitions studied in this report did the high court pass an effective order, challenging the impunity of the state’s agencies or, ensuring punishment upon a guilty person.

That they did not file a reply before the high court or, that they did not participate in the inquiry proceedings did not mean that the security forces were not following the proceedings. In several cases the accused unit of the armed forces did not file a reply before the high court or cooperate in the judicial inquiry ordered but chose to file objections to the inquiry report, which had held against them. Thus, the overall picture is one of watchful disregard for the court and its processes. Wherever the security forces felt that they needed to intervene, they did so.

This position of watchful disregard becomes clearer when the context is widened to include the response of the central government in cases where the state government requested it for grant of sanction to prosecute officers/members of the central security forces (including the army), who had been charged with penal offences. In four petitions, the police are on record as having completed their investigation and finalised a charge sheet against the officers/ soldiers responsible for the arrest/disappearance. In two of these cases, in which the high court involved itself in monitoring and, to some extent, supervising the state government in the process of obtaining “sanction” from the central government, the central government rejected the request for grant of sanction to prosecute the officers concerned despite there being ample evidence to establish the guilt of the accused officers/units. In fact, it is our information that the central government has granted sanction to prosecute in only two of the over 150 cases in which such sanction was sought.5

In other words, it is reasonable to infer that the central government is not inclined to permit the courts in the state of Jammu and Kashmir to exercise jurisdiction and control over forces under its command. The conduct of the central security forces, in the habeas corpus petitions studied in this report, mirrors this attitude and, once this attitude is factored in, the conduct of these forces becomes explicable.

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Leave alone effective final orders, our investigation shows that the high court exercised no control over any aspect of the court process. Once filed, cases acquire a life of their own. Their progress is controlled by a random mix of factors rather than by the court’s sense of purpose. Such a state of affairs is very frustrating for the petitioners, who rapidly become imbued with a sense of futility once they realise that nothing they do will help or facilitate the course of justice. If you attend court on every hearing it doesn’t matter, if you leave it to the lawyers and the judges, and their sense of justice, it doesn’t matter. In many cases, where the person arrested was subsequently released and, consequently, his family did not bother to pursue the case they had filed on his behalf before his release, the high court continued to process the case as a matter of routine for years thereafter. These empty cases, as we call them, are proof of the mindlessness of the judicial process.

Virtually every family we met said to us that they found the entire process before the high court bewildering and frustrating. The refrain was that nothing seemed to happen during the hearings, except an adjournment. The fact that the proceedings in the court were conducted in English added to the bewilderment and frustration

S No Name Date of Arrest

1 Manzoor Ahmad Dar 30.3.97 2 Nisar Ahmad Wani 30.3.97 3 Bilal Ahmad Sheikh 30.3.97 4 Zahoor Ahmad Dar 11-12.4.97 5 Mushtaq Ahmad Khan 14.4.97 6 Mushtaq Ahmad Dar 14.4.97 7 Tariq Ahmad Dar 30.3.97 8 Mehraj-ud-din Dar 19.4.97 9 Farooq Ahmad Shah 29.4.97 10 Ghulam Mohammad Shar Gugri 29.4.97 11 Farooq Ahmad Dar 29.3.97 12 Mizafar (Muzafar) Ahmad Dar Not legible

Source: Based on a letter dated May 19, 1997 from

IG, police, Kashmir to GOC, 8 Mountain

Table 2: Names and Dates of Arrest of Nine Persons Arrested by 20 Grenadiersin 1997 and ‘Disappeared’

Note: Those who were listed in the letter of the police dated May 19, 1997 (Table 1) are marked with an asterisk.

since most of the petitioners were not familiar with the language.

The 20 Grenadier cases are a microcosm of the phenomena studied. They manifest almost all the features of the macro situation: from the difficulties faced by the families in identifying the arresting unit, to the attempts made by them in securing the release of their kin, prior to filing the petition before the court, to the nature of the response by the arresting unit to the habeas corpus petition, to the ultimate outcome of the petition, in the cases where it was filed.

Between March 29, 1997 and May 23, 1997, the 20 Grenadiers, part of an elite regiment of the Indian army, arrested at least 15 persons.6 There is evidence to show that the police were aware of these arrests by the 20 Grenadiers and had repeatedly enquired about the whereabouts of the arrested persons from the various army commands stationed in the valley. One such letter of enquiry was written by the office of the inspector general of police, Kashmir to the GOC, 8 Mountain Division on May 19, 1997. The letter listed the names of 12 men who had been arrested by the 20 Grenadiers, with their dates of arrest. The names mentioned in the letter of May 19, 1997 are listed in Table 1. Similar letters were sent to the 56 Mountain Brigade and other army commands, on different dates. The number of persons arrested, as listed in the several letters, varied slightly. In other words, from time to time the police compiled information about the arrests carried out by the 20 Grenadiers and wrote to the army commanders in the valley, asking for information about the missing persons.

Our investigation includes the cases of eight of the 15 persons who are known (to us) to have been arrested by the 20 Grenadiers during the period mentioned above. In addition, we have a fair amount of information in the case of another arrestee, one Yehya Khan, who was arrested along with his father, Shahban Khan, one of the eight persons whose cases were examined by us. All these nine persons have “disappeared”.

All the arrestees about whom we have information were between 16 and 28 years, with the exception of 45-year old Shahban Khan. The names of the nine persons whose cases are included in our report are listed in Table 2. Two of them had a militant past.7

Arrest and Torture

Nisar Wani was arrested from outside his house during a crackdown in his locality. Manzoor Dar and Bilal Sheikh were arrested together, from the road, while the 20 Grenadiers were returning to their base after carrying out the crackdown in Nisar Wani’s locality. All the rest were arrested in the course of raids on their homes. In five cases the arrestees were subjected to torture prior to their arrest, in the presence of witnesses. In all these cases the family members, including women and children, were also tortured or, were forced to witness

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the torture. Some details regarding arrest and torture are as follows:

Rescue Attempts Prior to Petition

Colonel S K Malik, lieutenant colonel A Malik, major Vishwajeet Singh,9 major Rathore, major Satpal, major Rehman (or Rehmani), “camp officer” Raj Pal, “commanding officer” Raj Nath Singh and, naib subedar (or subedar) Nazar Mohammad were named by the families as having been part of the arresting party or, officers whom they met after the arrest. In five of the nine cases, the arrest and custody was informally acknowledged by the officers. Some details, in this respect, are as follows:

to Ashiq’s brother and his companion, one Dar, a Congress worker.

– “CO” Raj Nath Singh and the naib subedar Nazar Mohammad assured Mushtaq Khan’s family that he would be released.

Nazar Mohammad was named by several families as an officer who approached them with offers to help them secure the release of their kin. Mushtaq Khan’s family paid him Rs 10,000, which was not returned. Mehrajuddin Dar’s family also paid him Rs 10,000 through the ‘numbardar’ of their village (Tengpora), which too was never returned. Mushtaq Dar’s family paid Nazar Mohammad Rs 20,000, which they demanded and got back, since he was unable to keep his part of the bargain.

Identification of the Arresting Unit

In none of the cases did the 20 Grenadiers identify themselves. In some cases the families recognised them as being from a nearby camp. In a few cases the forces at the local checkpoint identified them for the families. In one case, they were identified by the police. The slightest error in identifying the arresting unit/officer was used to bolster the denial of arrest. Some details, in this respect, are as follows:

Inquiry into the Allegation of Arrest

The high court ordered an inquiry in five cases,13 details of which are as follows:

– In the inquiry into Shahban and Yehya Khan’s disappearance, the judge, initially, informed the high court that the 20 Grenadiers could not be served notice of the inquiry because their address was not on file.14 Later, the 20 Grenadiers appeared and, denied the arrest and, denied the “operation”.15The inquiry held that, prima facie, Shahban and Yehya Khan were arrested on April 16-17, 1997 by the 20 Grenadiers, after which their whereabouts were not known.

The indifference of the 20 Grenadiers went beyond mere failure to participate in the inquiries ordered by the court. In Nisar Wani’s case, based on the finding in the inquiry report, the high court ordered the police to register a case and investigate Nisar’s disappearance. In December 2002, the state government complained to the court that “despite numerous letters and, summons u/s 160 CrPC,18 the 20 Grenadiers had failed to respond”. The police expressed its inability to complete its investigation in such circumstance. Again, in August 2003, the police complained of lack of cooperation. In January 2004, the high court directed that a copy of its order of July 2003 should be sent, for ensuring

Economic and Political Weekly May 19, 2007 compliance to the central government and “Commanders at upper echelon of the Army organisational structure stationed at Udhampur/Srinagar”.

Still failing to elicit the cooperation necessary to complete the investigation in the FIR in March 2004, the court threatened “stern action” against the officers of the central government for their “laxity and persistent failure to comply with the directions” and, asked the police to file particulars of the army officers and officers of the home and defence ministries who should be proceeded against. The case was still pending in April 2004, with the situation unchanged.

It is appropriate to conclude this narrative with a reference to Montesquieu’s famous maxim “Law should be like death, which spares no one”. Unfortunately, in Kashmir, the law spares everyone, while allowing death to stalk every Kashmiri.

EPW

Email: ashokagrwaal@gmail.com

Notes

8 They were digging a drain in the locality.

15 They also denied a subsequent raid on Shahban Khan’s father-in-law’s house. They claimed that on that day they had been on a “ROP” (road opening party) on the Patan-Srinagar road during which they did not arrest anyone. However, they did not produce any record in support of this contention.

16 Both the 20 Grenadiers and the 35 RR were respondents to the petition; both filed replies before the high court, denying arrest.

17 The witnesses mentioned both the 20 Grenadiers and the 35 RR. Based on identical testimony, the inquiry judge appointed by the high court held against the 35 RR while the SHRC (Nisar’s family had, also, filed a complaint there) held the 20 Grenadiers liable.

18 Section 160 of the J and K CrPC empowers the police to summon persons, to give information about the offence under investigation.

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