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Judicial Indifference to Deaths in Custody or ’Disapearances’

by Ashok Agrwaal, 14 September 2008

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Combat Law, July - August 2008

Valley of Fear: Impossibility of justice

This article summarises a monograph by the author, to be published shortly by the South Asia Forum for Human Rights (SAFHR). Deaths in custody/disappearance from custody are endemic in India and, have been so throughout its independent history. The reasons for this state of affairs are complex and, it would not be correct to assign the entire responsibility for it to any one factor, or pillar of the nation-state. However, there can be no gainsaying that the defects in the approach of the judiciary have played a pivotal role in the failure of the guarantee of the right to life.

The report examines some of these shortcomings, using the aperture provided by one of the world’s best known legal remedies, the writ of habeas corpus, the sole remedy available in law in case of a violation of the right to life and liberty, guaranteed by Article-21 of the Constitution.

In technical terms, therefore, this document may be called a report on the functioning of the constitutional and legal redress mechanism for the protection of the right to life, during the period of insurgency in Kashmir: 1990 to 2004. Though the study was based upon the court process, we did not rely solely upon the court records. The testimony of the survivor families is crucial to a proper delineation of an impunity landscape.

The theme of the report, as distinct from its technical nomenclature, is to portray the impossibility of justice for the victims of impunity: particularly in Kashmir but the principle being applicable to such victims everywhere. Though the impossibility is portrayed through the failure of the constitutional mechanism for the protection of the guaranteed right to life, it is actually far more encompassing.

The main thrust of the study is based on an examination of 96 cases of alleged enforced disappearance of Kashmiris. Eighty seven of these cases resulted in the filing of a petition for a writ of habeas corpus before the Srinagar Bench of the Jammu & Kashmir High Court. No such petition was filed in the remaining nine cases. The only criterion for the nclusion of each of the 87 cases was that they had habeas corpus petitions filed before the Srinagar Bench of the Jammu & Kashmir High Court. The numbers limit was imposed by time and resource constraints, and nothing else. The nine cases which did not result in a petition include the case of one of two young men who were arrested at the same time but the family of one of them decided not to file a petition for fear that it might antagonise the army and lessen the chances of their son coming home alive. These nine cases also include three cases of disappearances of Kashmiris from Nepal. These three Kashmiri businessmen were arrested by the Nepal police at the behest of the Indian authorities. The Nepal police informally acknowledged their arrest and said that the men were handed over to a team of police officers from India. Officially however, they denied the arrests. The Indian authorities took the stand that since the men were admittedly arrested by the Nepali police, they should be asked to account for them. Petitions before the high court at Delhi and the national human rights commission at Delhi were to no avail. Till date, the families have not received any information of their whereabouts. These three cases illustrate that the impossibility of justice crosses the geographic boundaries of the state of Jammu & Kashmir. There seems to be no reason for the denial of redress to these families other than the fact that the persons arrested were Kashmiris.

The single most striking feature of the habeas corpus proceedings is the powerlessness of the high court. Everything else can be derived from this fact. From the point of time when the court issued notice of the petition upon the respondents, it lost all control over the proceedings. The pace, the manner in which the case would proceed, and the outcome of the case was controlled entirely by the respondents— the central and the state governments. Nor did the court display a significantly better control over its own establishment. The staff of the high court has no fear of consequences for culpably slack and careless work. The subordinate judiciary, the district judges (DJ) and the chief judicial magistrates (CJM), who were appointed enquiry officers in most cases, were only marginally more responsive to the imperatives of justice.

It goes without saying that a helpless court is unlikely to be able to pass clear and decisive final orders, even in cases where the allegation stood proved. In over 57 percent of the cases in which there was a clear finding against an identified security force/unit, the court found itself unable to do anything other than order registration of an FIR, which ought to have been registered in the first place, without the court’s intervention. To fully appreciate the absurdity of such an order we must also factor in the number of years that it took the court to pass such an order.

What words does one use to describe a justice system in which the best order that the family of a disappeared person can expect – several years after the event – is a direction to the police to register an FIR? There can be no more damning indictment of the system than this. But the reality is even worse. We have records, and recorded

testimony, to show that the registration of the FIR was seen by all concerned, the families, the police and, the judges as a mere formality, the completion of which would enable the system to wash its hands of the matter. The only real expression of contrition, howsoever inadequate, that the system shows for its mistakes, is in its willingness to consider the grant of ex-gratia compensation to the families of the disappeared.

The court was not completely oblivious of the fact that it was playing out a farce. For example, it is repeatedly seen that the court did not pay attention to its earlier orders, acting – almost – as if on each date of hearing the entire matter was being dealt with afresh, ignoring all that was said and done in the past; as if the years of proceedings before that date never happened. It seems to me such forgetfulness is essential for retaining a modicum of sanity in the schizophrenic environs of the J&K justice system. Unscrupulous respondents and their lawyers took advantage of this amnesiac functioning, getting away with everything— from years of delay in filing replies to inveigling the court to disposing of petitions (that had been pending for several years) in the absence of representation on behalf of the petitioners.

The court’s lack of control over its establishment, or the courts and officers subordinate to it resulted in the staff of the court frequently not carrying out the directions issued to it by the judges, with no fear of consequences. For example, notices/summons were frequently not issued, despite directions. The result was years of delay in serving notices upon agencies who had a ’standing counsel’ in the high court. The performance of the subordinate judiciary, the DJs and the CJMs, who were appointed enquiry officers in most cases, was mixed. Despite working under harshly adverse conditions they often conducted exemplary enquiries. However in several cases, the conclusions drawn in the enquiry reports were patently absurd, or careless. In none of the cases did the high court catch the absurdity, or correct the carelessness.

The conduct of the other players in the farce is also reflective of their awareness of the true nature of the proceedings. In Manzoor Zargar’s case, the BSF took over five years to file their response to the petition. In as many as 17 cases the respondents took more than two years to file their replies. In 30 cases, they took between one year and two years to file their replies. Coupled with the fact that the accused unit of the armed forces did not file any reply at all in as many as 38 cases, the inference is clear.

The nature of their responses is equally revealing. In over 70 percent of the petitions in which the accused unit filed a response (41 cases out of 58), it was a bald denial of arrest. Of the remaining responses, in 10 cases they admitted the arrest but claimed that the person concerned had been, subsequently, released. In three cases (pertaining to four persons) they claimed that the arrested persons had escaped from their custody. In four cases it was stated that the arrested persons were held in legally recorded and, acknowledged, custody after their arrest.
In over 70 percent of the petitions in which the accused unit filed a response (41 cases out of 58), it was a bald denial of arrest. Of the remaining responses, in 10 cases they admitted the arrest but claimed that the person concerned had been, subsequently, released. In three cases (pertaining to four persons) they claimed that the arrested persons had escaped from their custody

The conduct of the security forces even more scornful once the case had been sent to the enquiry judge. In a very large number of the 62 cases in which inquiries were ordered by the high court, the accused unit did not participate in the enquiry proceedings. In several cases the enquiry judge recorded adverse remarks about the conduct of the accused unit, specifically attributing the delay in completing the enquiry to their tactics. In none of the enquiries did the security forces produce the records pertaining to the deployment of their troops, or those pertaining to the crackdowns that are a daily routine of life in Kashmir, or the records pertaining to the arrest/detention of people. Nor did they ever bring before the court any of the soldiers/officers responsible for the impugned actions. In Basharat Shah’s case, the CRPF made the commandant and the deputy commandant of the 53 Bn to retire rather than produce them before the enquiry officer appointed by the high court.

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 enquiry ordered but chose to file objections to the enquiry report; which had held against them. Thus, the 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 becomes even 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 chargesheet against the officers/soldiers responsible for the arrest/disappearance. In two of these cases we have no information except for the fact that the police had stated before the court that their investigation was complete and the chargesheet ready for being filed before the competent court. In two other cases, 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. In both these cases the central government rejected the request for grant of sanction to prosecute the officers concerned.

The poor father of Mohammad Yusuf Wahloo told the judge that since his son was dead, he did not want to participate in the proceedings. However, when apprised of the facts, the high court chose to dispose of the case for want of instructions from the petitioner
These two cases are not the only ones in which the central government has refused the request for sanction. It is our information that the central government has granted sanction to prosecute in only two of the hundreds of cases in which such sanction was sought. In other words, it is reasonable to infer that the central government was/is not inclined to permit the courts in the state of Jammu & Kashmir to exercise jurisdiction and control over forces under its command. The conduct of the central security forces in the habeas corpus petitions examined in this report, mirrors this attitude and, once this is factored in, the conduct of these forces becomes explicable.

The palpable indifference of the process also led to consequences that would have been comical, but for the tragic setting. In as many as 17 of the 85 petitions, the proceedings continued for several years after the arrestee had been released by the security forces. In one case, the arrestee was booked under the Public Security Act, served out his period of detention, was released, and killed by the army in a fake encounter before the high court and its staff reached his home. The abjectly poor father of Mohammad Yusuf Wahloo (91/8) told the enquiry judge that since his son was dead, he did not want to participate in the proceedings. However, when apprised of the facts, the high court chose to dispose of the case for want of instructions from the petitioner. The appalling insensitivity of the court to the plight of the people whom it is supposed to serve, in justice, seems to be encapsuled in this remark.

One can speculate that the abject surrender of its prerogatives by the court was, at least, in part a result of the realisation of its complete helplessness. It also seems to us that it took time for the full extent of its irrelevance to hit the court. With the passage of years the proceedings became increasingly formal, with the court displaying less and less enthusiasm for playing out or, prolonging the farce. On the other hand, the security forces displayed an increasing mastery of the processes of justice. The result is clearly visible from the cases discussed. From 1999 onwards, the court ordered an enquiry in a very few cases, being content to simply ask the police to register an FIR/ complete investigation in the FIR already lodged.

Every fact we have examined and analysed inexorably reinforces the conclusion about the irrelevance of the habeas corpus proceedings. The court went through the motions, without any faith in the effectiveness, or sanctity of its processes. The result was not just that the court’s intervention did not save any lives; these processes had no impact whatsoever on the prevailing situation. It was as if the courts did not exist.

It is not easy to analyse a complete farce, particularly when the players of the farce act out with a, seeming, air of unawareness of it. We found absurdity, capriciousness, culpable negligence, callous disregard and more. We found a court completely oblivious to its place and importance in the constitutional scheme of things. A court unwilling to acknowledge its linkages to the society in which it was situated. Yet, the court functions— judges come and go in their siren equipped cars, shielded both by curtains on the car windows and, by the phalanx of security personnel who guard them. Perhaps guarded by the same personnel (or, at least, their brothers in arms) who disappear the people on whose behalf the judges hear habeas corpus petitions.

— The writer is a Delhi-based senior advocate