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Memories of Another day

Memories of Another day
While my Parents Pulin babu and Basanti devi were living

Monday, May 4, 2009

Re: [Bahujan-forum] New Report on Human Rights' Violations in Kashmir by Indian Forces


 
palashcbiswas,
 gostokanan, sodepur, kolkata-700110 phone:033-25659551



From: yogi sikand <ysikand@yahoo.com>
To: saldwr@yahoogroups.com
Sent: Monday, 4 May, 2009 19:50:30
Subject: [Bahujan-forum] New Report on Human Rights' Violations in Kashmir by Indian Forces




In Search of

Vanished Blood

The writ of Habeas Corpus in

Jammu and Kashmir: 1990 - 2004

South Asia Forum for Human Rights

Kathmandu

Ashok Agrwaal

SAFHR Paper Series 17

© All rights reserved

Published by

South Asia Forum for Human Rights

3/23 Shree Durbar Tole, Patan Dhoka, Lalitpur

G.P.O. Box: 12855

Kathmandu, Nepal

Tel: +977-1-541026 Fax: +977-1-527852

Email: south@safhr. org

Website: www.safhr.org

Design & Layout

The Printhouse

Naya Baneshwor, Kathmandu

Tel: +977-1-4476871

Email: printhouse@wlink. com.np

This publicaton acknowledges the support of ICCO, Netherlands. It is

brought out as part of the course material for the Seventh South Asian

Peace Studies Orientation Course.

Contents

Acknowledgements ............ ......... ......... ......... ......... ......... ........ iv

Foreword ............ ......... ......... ......... ......... ......... ......... ......... ........ v

Part 1:

Introduction ............ ......... ......... ......... ......... ......... ......... ......... ... 1

The Impossibility of Justice-I ............ ......... ......... ......... ......... .. 17

The Impossibility of Justice-II ............ ......... ......... ......... ......... 65

Notional Powers and Actual Impotence ............ ......... ......... .. 115

End Note ............ ......... ......... ......... ......... ......... ......... ......... ..... 146

Part 2:

Appendix -1 – Lahu Ka Surag/ In Search of Vanished Blood ..... 150

Appendix - 2 – Table: Personal and Detention Details ............ ... 152

Appendix - 3 – Table: Time Line ............ ......... ......... ......... ......... .. 177

Index – List of Cases ............ ......... ......... ......... ......... ......... ......... . 197

Glossary ............ ......... ......... ......... ......... ......... ......... ......... ......... .. 198

List of Abbreviations and Usages ............ ......... ......... ......... ........ 210

iv

ACKNOWLEDGMENTS

The research on which this monograph is based was funded by the

South Asia Forum for Human Rights (SAFHR). The issues addressed by

the research evolved out of several years of involvement of a group of

people, including the author. The seminal work done by some of the

members of this informal group on these issues over the last three decades

was a vital input in this process. The most prominent among these

was the work of Tapan Bose and the Committee for Information on

Kashmir and, Ram Narayan Kumar and the Committee for Information

and Initiative on Punjab. Priya Jain joined the project almost immediately

after it started and stuck it out, despite many difficulties, till the

very last. She was responsible for the countless reams of paper that we

accumulated, organising them into files, reading and summarising the

contents of these files and, maintaining the database that we devised to

store the information. In addition, she travelled with me to Kashmir on

several occasions, going into the field, interviewing families, etc.

The work in Kashmir was crucially dependant upon friends and colleagues

stationed there. We could not have even made a beginning without

the help of Shahwar Gauhar, a prominent member of the Srinagar High

Court Bar. Shahwar continued to be a valuable member of our team in

Kashmir till the very end, despite the enormous constraints imposed by

his professional and personal responsibilities. Equally important was the

role played by members of the Law Ring, a group of dynamic law students

when we started the research, and who continued to closely associate

with the work after they graduated. The Law Ring, were involved with

everything that we did in Kashmir and, some of them – Rifat and Shafat –

even spent several months each in Delhi, working from my office. At least

one member of the Law Ring was almost always with us during our field

visits, translating the voices of the families we met and, later, transcribing

the recordings. All of them are practicing advocates in Kashmir. In addition,

many lawyers, civil society actors, media practioners and others from

all walks of life in Kashmir helped us in our myriad tasks, in innumerable

ways. Our research could not have been completed without their invaluable

cooperation and assistance. Even as I must leave them unnamed, my

gratitude and appreciation of their efforts remains undiminished.

Shortcomings of the research, as also the responsibility for the authorship

of this monograph are entirely mine.

Ashok Agrwaal

New Delhi , 15 September 2008

v

FOREWORD

"(The Habeas Corpus Acts) declare no principle and define

no rights, but they are for practical purposes worth

a hundred constitutional articles guaranteeing individual

liberty."

Albert Venn Dicey

We started the Law Ring1 as a voluntary support organization for documentation

and human rights awareness in the year 2000, as students of

the Law Faculty, Kashmir University. After some time we felt that there

is a strong need for thorough, professional documentation on human

rights issues in Jammu & Kashmir, for effective advocacy and campaigning.

Custodial killing, enforced disappearances and other human rights violations

are regularly reported in Kashmir. However detailed documentation,

examining the manner in which the justice system had dealt with

the huge number of habeas corpus petitions filed before the High Court

did not exist. Even till 2-3 years ago, two days in a week were reserved

for habeas corpus cases.

The important thing about the project was our involvement as equal

partners from the very beginning. Ashok Agrwaal, under whose leadership

the research was conducted, Tapan Bose, the Secretary General of

SAFHR and Priya Jain, who worked full time with Ashok in Delhi, were

always encouraging. We participated in every aspect of the research,

and were included in the decision making processes at all stages. It was

a great learning experience for us to work with Priya and Ashok. They

displayed utmost care and thoroughness in even small matters. Our

experience in the field was also an eye opener. It was not easy to travel

the length and breadth of the valley in the prevailing situation.

We hope that the supporters of the human rights movement in Kashmir

1 Law Ring is now called Centre For Law & Development, Srinagar (CLD)

vi

and victims groups will find the details and information a valuable input

to the human rights discourse. The research brings out the gross failure

on the part of the higher judiciary to uphold the writ of habeas corpus,

which has been celebrated as the most efficient safeguard of the liberty

of the subjects. We hope further research will be done to highlight the

challenges and institutional failures which render this important writ

ineffective in other places as well.

We believe the monograph will be helpful for human rights organizations,

independent researchers, and others, including those concerned

with helping the families of victim to rebuild their lives, since the paper

highlights some of the deeper ramifications of the massive failure of

justice in Kashmir. We believe that this effort will help in strengthening

local civil society initiatives for the right to truth, justice and reparation

to the victims of human rights violations.

We convey our sincere thanks to the members of the High Court Bar

Association, Srinagar for their help, and for facilitating our meetings

with survivor families. Our thanks also to Mr. Shahwar Gowhar, a senior

colleague, for his guidance and support at all stages. We acknowledge

the support and encouragement of Mr. Tapan K. Bose at all times.

Last but not least, our thanks and appreciation is due to the survivor

families for receiving us warmly. Talking to us was not easy since it

forced them to revisit the trauma they had undergone and, unfortunately,

it was not within our capacities to provide them any concrete reassurance

or help.

Shafat N. Ahmad

On Behalf of himself and Sajad A. Geelani, Fasihun-Nisa- Qadri,

Subaya Yasmeen, Fozia Nazir, M. Asrar Wani, Rifat Nazir,

Musbat, Khalid Nazir, Imtiyaz Ahmad and

Intikhab Alam. Advocates

1Part

2

Introduction

The object of a constitution is to specify the terms of the sovereign's

right to rule, including the limits to the sovereign's powers. A bill of

rights (within the constitution) forms the core of the enforcement mechanism

for the contract: counterpoising sovereign powers with the civil

and political rights of citizens. The processes of enforcement of the

terms of this contract, and their outcome, as phenomena, can be viewed

as the sum and substance of the 'rule of law'.2 The Latin maxim – ubi

jus ibi remedium – must therefore find place in any bill of rights worth

its name.3 Article 32 of the Constitution, forming part of the guaranteed

fundamental rights, empowers any person aggrieved by a law (or an

action) – on the ground that it violates his or her fundamental rights – to

move the Supreme Court (under Article 32) or any of the High Courts

(under Article 226) for an appropriate writ, order or direction quashing

the law (or the action), on that ground.4 It goes without saying that in

each case the courts are duty bound to also order such other reliefs as

may be necessary in the facts and circumstances of the case.5

Thus, under rule of law, power is legitimate only when it is invariably

limited by rules that bind the wielders of power as much as they bind

those upon whom it is wielded. The opposite of legitimate or finite

power is impunity. Impunity knows no bounds and comes in countless

forms. Almost any conduct can become imbued with impunity the moment

the sovereign power refuses to be accountable, de jure or, de facto.

All laws, including constitutional guarantees of rights, become deadwood

in the face of the sovereign's refusal to be accountable. Impunity

2 Social contract theories treat sovereignty as a fait accompli, being content to

adapt pre existing notions of sovereignty by incorporating in it a notion of reciprocal

rights to the subjects.

3 Where there is a right (or, a wrong) there is a remedy.

4 Though the Constitution does not say so in so many words, it is a settled proposition

that the powers of the High Courts under Article 226 of the Constitution

are co-terminus with those of the Supreme Court under Article 32, with respect

to the fundamental right guarantees.

5 In addition, Article 13 stipulates that all laws inconsistent with or in derogation

of the fundamental rights guaranteed in the Constitution shall be void to the

extent of such inconsistency.

3

prevails when the sovereign begins to brood, like Lady Macbeth, What

need we fear who knows it, when none can call our powers to account.6

In the context of this report, impunity is the lack of accountability for

violation of rights by members of the police and other armed forces.

Unpunished, the perpetrators are likely to be encouraged to act with

impunity. Amnesty laws, which stop all prosecutions - and often times,

investigations - of human rights violations are examples of de jure impunity.

7 The failure of the State to try and punish violators of rights,

even in the absence of such laws, is de facto impunity. Impunity is a

violation of human rights as well as a direct threat to the rule of law, the

necessary basis for a constitutional democracy.

As stated, India has a fairly comprehensive system for the protection

of fundamental rights. Yet, deaths in custody/ disappearance from

custody are endemic, 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. This

paper will seek to examine 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.8 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.

6 Shakespeare, Macbeth: Act 5, Scene 1

7 They have been the preferred method in Latin America and transitional polities

in other parts of the world.

8 The Supreme Court and, the High Courts of India are empowered to issue this

writ.

4

The theme of the essay, 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.

In Kashmir, the primary role of law seems to be the legitimising of force.

In a second order facilitation, the systems of law and justice are used to

create an aura of fair play and even handedness: making it seem as if,

not only is the force used the minimum necessary but also that even the

use of this force is regulated and subject to independent (and unbiased)

checks and controls. The de jure abrogation of the right to life in Kashmir

is rooted in the Armed Forces (Jammu and Kashmir) Special Powers

Act 1990 (AFSPA).9 The AFSPA enables the deployment of the

armed forces of the Union, in aid of the civil power of a state government,

in discharge of the obligation imposed on the Union, under Article

355 of the constitution, to protect the state against internal disturbance.

10

Section 4 of this Act gives (a)ny commissioned officer, warrant officer,

non-commissioned officer or any other person of equivalent rank in the

armed forces the authority to shoot to kill, if he is of the opinion that it

is necessary to do so for the maintenance of public order.11 This extraordinary

power to kill on the basis of subjective discretion, is coupled

with a prohibition, in section 7, against prosecution of persons acting in

exercise of powers conferred by the AFSPA without the prior sanction

9 The original Act, passed in 1958, was applicable to the north-east region.

Subsequently, similar laws were enacted for the Punjab (1983) and Jammu

and Kashmir (1990). All three versions of the Act are almost identically

similar, making it possible to use AFSPA as a generic term to discuss the law

and its interpretation.

10 Article 355 of the Constitution reads as follows: " It shall be the duty of the

Union to protect every State against external aggression and internal disturbance

and to ensure that the government of every State is carried out in accordance

with the provisions of this Constitution. "

11 In addition, they have the authority to arrest, to search and, to seize without a

warrant and, the power to destroy any structure or place that they think is likely

to be used by militants/ terrorists/ persons wanted for any offence.

5

of the central government.12 Given that the central government routinely

rejects applications for permission to prosecute, even in cases

where there is substantial evidence to support the allegations, the result

is to make the AFSPA a code for impunity; complete in itself.

The theoretical position with respect to section 7 of the AFSPA is that the

protection conferred by it does not extend to criminality or criminal acts.

It is also the position that the provision does not act as a threshold bar on

the registration of an FIR, investigation by the police or, even, the filing

of a charge-sheet and initiation of the trial.13 However, in practice, the

courts have never tested the AFSPA provision, the Supreme Court having

shied away from actual application of its parameters.14 Therefore, section

7 is almost universally interpreted to grant immunity from prosecution of

any kind, in the absence of the central government's permission.15

The constitutional validity of the AFSPA was challenged in what has

become known as the NPMHR case (and the connected petitions that

were decided along with it).16 Notwithstanding the legal arguments in

which they were couched, the object of these petitions was to bring the

widespread abuse of powers by the security forces deployed under the

AFSPA to the attention of the Court.17 However, the Supreme Court

12 The prohibition, identically worded, is contained in section 6 of the AFSPA

1958 and, in section 7 of the J&K AFSPA.

13 To be more precise, the law has been laid down in cases under section 197 of the

Indian Code of Criminal Procedure 1973 (CrPC 1973), which is virtually identical

to section 7 of the AFSPA in form and substance.

14 Apart from the Sebastian Hongray case (AIR 1984 SC 571), there have been

only two other cases before the Supreme Court in which there was a possibility

of the court dealing with this provision in concrete terms. One was the case

known as the Naga People's Movement for Human Rights (NPMHR) V. Union

of India (AIR 1998 SC 431), in which the constitutional validity of the AFSPA

was debated, and upheld, and the second was in the case of Masooda Parveen V.

Union of India & Others (AIR 2007 SC 1840)

15 In Rouf Shah's case (discussed below) the army argued in writing that even a

habeas corpus petition was not maintainable without the prior permission of the

central government.

16 Naga People's Movement for Human Rights (NPMHR) V. Union of India; AIR

1998 SC 431

17 Apart from the examples contained in the petitions, a report of an inquiry into

many of the incidents of violation of rights was also placed before the Court. It

was based upon an investigation by a Commission of Inquiry headed by a retired

judge of the Guwahati High Court.

6

opened the substantive part of its judgement in the case with a statement

that it was satisfied with the verbal assurance of the Attorney

General of India that all allegations of infringement of rights by personnel

of the armed forces have been inquired into and action has

been taken against the persons found to be responsible for such infringements.

Therefore, the Court said, it was unnecessary for it to look

at any specific instance of violation, or abuse, of powers under the

AFSPA.

This stand was contrary to the established cannons of judicial review

under Article 13 of the constitution, which say that not only the law but

the exercise of the power vested in any person or authority under such

law must satisfy the test of constitutionality. For, even where a law is

valid action taken under it may offend a fundamental right and, in that

event, though the statutory provision would be deemed valid, the action

would be struck down as violating the fundamental rights. The

Court also appeared oblivious to the settled position that in determining

the impact of State action upon the fundamental constitutional guarantees,

the object of the legislature is not relevant, and nor is the form of

the action. The only thing that is relevant to be considered is the effect

of the action upon the individual's right. If the action affects the fundamental

right, directly and inevitably, then, this effect must be presumed

to have been intended by the legislature.18

Thus, the allegations of widespread and systematic violation of rights

by armed forces officers while acting in exercise of powers under the

AFSPA 1958 were, by themselves, the major ground of challenge to the

constitutional validity of the Act, and it was mandatory for the Supreme

Court to test the constitutionality of the Act against the instances of

actual violation. No part of the argument based on these instances could

have been ignored, or cursorily dismissed by the Court, since they showed

that the direct and inevitable effect of the actions of the armed forces,

acting under the AFSPA, was to violate the fundamental rights of the

people.

18 Maneka Gandhi V. Union of India; AIR 1978 SC 597

7

An important corollary of this test of constitutionality is that a law

cannot be validated by reading down its provisions, so as to make them

consistent with the fundamental right guarantees. The Supreme Court's

position on this count, extant for over two decades prior to the decision

in the AFSPA case, is that (t)he principle of reading down cannot be

invoked or applied in opposition to the clear intention of the legislature.

Yet this is precisely what the Court did, while upholding the validity

of the AFSPA 1958. While one hesitates to impute design in such

matters, particularly to a constitutional authority of such stature, the

Court's refusal to look into the actual cases of abuse of AFSPA powers

facilitated its validation of the draconian powers conferred by the Act.

For example, not finding anything that would justify the existence of an

unfettered power to kill, under section 4 (a) of the Act, the Court declared

that while acting under this provision, the armed forces shall only

use the minimal force required for effective action. The Court would

have found it extremely difficult to read down the provision in this manner

had it gone into the actual cases of violation and abuse placed before

it.

Nearly a decade later, the judgement of the Supreme Court in the case

of Masooda Parveen is consistent with its views (and position) in the

NPMHR case.19 In this case the claim before the Court was for only

grant of compensation for causing the custodial death of Advocate

Ghulam Mohi-ud-din Regoo (husband of Masooda Parveen), who was

the sole breadwinner of the family.20 In other words, Masooda Parveen

was not interested in the prosecution of those guilty of causing her husband's

death. Thus, the provisions of the AFSPA were in issue only by

implication.

Taking pains to impart a patina of compassion and reasonableness to its

stand, the Court asserted that victory by force of arms … is pyrrhic and

19 Masooda Parveen V. Union of India & Others (AIR 2007 SC 1840)

20 It was the admitted case that Regoo was in army custody when he died. The

army claimed that he was leading the way into a "hideout", when a booby trap

bomb exploded. Established norms – both domestic and international – stipulate

that the army could not seek to escape liability on this ground. Even assuming

the army's version to be correct, they could not have forced him to lead the way

into the alleged hideout. Once he had pointed out the place where the arms were

allegedly hidden, it was their job to secure the area and/ or recover the hidden

weaponry.

8

… leads to no permanent solution and that an effective redressal mechanism

is crucial to winning the war against terrorism. It then declared that

in an investigation of this kind based only on affidavits, with a hapless

and destitute widow in utter despair on the one side and the might of

the State on the other, the search for the truth is decidedly unequal and

the court must therefore tilt just a little in favour of the victims. Thereafter,

the Court proceeded to deal with the case solely on the basis of

material that was made available to it by the Army and by the State

government, ignoring vital material (and information) furnished by

Masooda Parveen in support of her version of the events.21 In a classic

example of the Nelson eye, the Court held that—

… there is not an iota of evidence to support the petitioners'

(sic) plea except for the statements that she has made in the

present petition. It has already been observed at the very initial

stage that the court must lean a little in favour of the victims on

account of the adverse situation in which they stand placed, but

the Court must find something to lean on. We find no evidence to

suggest that the petitioners' case was worthy of belief. On the

contrary we have the army and police record pertaining to the

incident which clearly show that Regoo was indeed a militant

and that the circumstances leading to his death were as per the

circumstances put on record by the respondents.

Indubitably, no one can be indicted without basis; not even the armed

forces of the Union in counter-insurgency mode. However, even assuming

the Court was correct in its opinion about the lack of evidence

to support Masooda's case, it could not have ignored so self evident a

truth as that in cases of custodial killing the possibility of corroborative

evidence is virtually non-existent.22 Nor could the Court have ignored

21 The material placed before the court by her showed that Regoo had been

subjected to severe torture before his death.

22 In the Sebastian Hongray case and the Nilabati Behara case the Court overcame

this handicap by adopting strategies appropriate to the situation. In

the Hongray case the Court relied upon reports by the Civil administration

and contradictions between the record and the affidavits filed by or on

behalf of the Army. In the Nilabati Behara case the Court relied upon the

inquiry conducted by the local District Judge. In the Masooda case, on the

contrary, it refused to even look at any material except that produced by

the army and the police.

9

the fact that Regoo died in military custody and that it is a settled position

that the custodial authority is responsible for ensuring the safety of

the person in custody, and becomes liable if it fails to discharge the

responsibility. Finally, the Court could not have been unaware of the

law, as laid down by itself, that a death (or a disappearance) in custody

must be compensated, irrespective of the reasons proffered by the custodial

agency in justification and defence.

In other words, the NPMHR and the Masooda Parveen decisions suggest

that although we, as citizens, are entitled to the position that the courts are

there to do justice when all other avenues for it fail (and, therefore, must

be held to have a legitimate expectation23 that the courts will deliver

justice), our grievance is not justiciable. Nor is it permissible to question

why the notion of justice that the courts dispense is so deeply polluted by

concepts of national security, integrity and, sovereignty.24 The individual

is the subject of the nation-state and the individual is nothing without the

community that the said nation-state represents. Thus, the Supreme Court

says that the sacrifice of the individual (or many of them) at the altar of the

nation is permissible. Of course the court does not posit the sentiment

(and principle) in this manner.

The DK Basu decision of the Supreme Court, which addresses the issue

of death in custody/ disappearance from custody in general terms, as

something that pervades law enforcement in India, is sufficient to confirm

us in the foregoing view.25 This judgement laid down binding and

enforceable guidelines to prevent violation of the fundamental rights of

the citizens of India by the law enforcement agencies. The Court declared

that a failure to comply with the guidelines laid down by it would

tantamount to contempt of court and, would be punishable as such.26

23 The doctrine of legitimate expectation was developed by the superior courts

in England in the post WW-II expansion of the rights regime; probably as

part of the western world's concerted effort to contain the virus of communism,

which seemed poised to sweep the world at that time.

24 Where there is sovereignty there is sovereign immunity, even if the Supreme

Court declares for the record that such concepts do not have applicability

in matters of violation of human rights.

25 D.K. Basu V. The State of West Bengal and others; – AIR 1997 SC 3047

26 In An ironical, though typical, twist the DK Basu judgement was used by the

J&K High Court to postpone hearing a habeas corpus petition for several years.

(Nazir Malik and Shafi Shah (97/1)

10

However, invoking the myriad threats that the State faces – communal

riots, political turmoil, student unrest, terrorist activities (and more) –

the Court simultaneously asserted that freedom of an individual must

yield to the security of the State.

On the one hand the Court said that (t)he cure cannot … be worse than

the disease itself, approvingly citing the decision in Miranda V. Arizona

(384 US 436), where the American Supreme Court held that the argument

of society's need cannot be used to abridge the guaranteed rights of the

individual. On the other hand, the Court declared that if it were to lay

too much emphasis on protection of the fundamental rights and human

rights criminals would go scot-free with the result that crime would go

unpunished and, in the ultimate analysis, society would suffer. The

Court called this concern genuine and called for a balanced approach

… to meet the ends of justice.27 To strike this balance, the Court invoked

two fairly old Latin maxims – Safety of the people is the supreme law

and, Safety of the state is the supreme law.28

Seemingly reasonable in a neutral context, reading these maxims into the

guarantees of life and liberty, in the manner that it has done in the DK

Basu decision, reveals a basic contradiction in the Court's understanding

and stance on the right to life. In a climate where impunity is the

norm, and where it is routine to perpetrate flagrant violations of human

rights on a mass scale,29 the Court must be deemed to be aware that its

remarks are likely to be construed by the police, and other agencies

engaged in internal security duties, as a continuing licence to carry out

custodial killings and enforced disappearances, in the name of the People,

and of the State. This monograph illustrates the point.

27 DK Basu V. State of West Bengal, supra

28 Salus populi est supremae lex and, Salus republicae est suprema lex.

29 The expression used by the Supreme Court upon reading the report of the

CBI's (Central Bureau of Investigation) investigation (ordered by it) into an

allegation of thousands of enforced disappearances in Punjab; Paramjit

Kaur V. State of Punjab and others, Writ Petition (Criminal) 497 of 1995

(with writ petition Crl. 447 of 1995), order dated 12 December 1996;

reported as 1999 (2) SCC 141

11

Some Methodological Issues

For reasons of time and resource constraints, the study was restricted

to the Kashmir valley. All except one of our cases are from between 1990

and 2000. We included one case from 2003, which we came across

during the course of our field research, because it showed that the manner,

and pattern of arrests, had not changed in the three years since 2000,

despite claims of "improvement" by all concerned. However, orders

and decisions by the High Court till September 2004 are included in our

study.

The main thrust of the study is based on an examination of 88 petitions

of alleged enforced disappearance, filed before the Srinagar Bench of

the Jammu and Kashmir High Court.30 As a first step, we randomly

gathered copies of 259 habeas corpus petitions filed before the Court,

with the assistance of lawyer colleagues practicing in Srinagar. On

sorting, 185 of them were discovered to pertain to detentions under the

PSA31 and 74 petitions alleged an enforced disappearance.32 Thereafter,

we randomly added another 11 petitions pertaining to enforced disappearances,

which we came across during the course of our field work;

totalling to 85 petitions in all. The only criterion for the inclusion of each

of the 85 petitions was that they were habeas corpus petitions filed

before the Srinagar Bench of the Jammu and Kashmir High Court. The

numbers limit was imposed by time and resource constraints, and nothing

else.

30 In three cases, two petitions were filed for the arrested person, while in two

cases each petition pertained to two arrested persons. Eliminating the duplication

(where two petitions were filed for the same person), we are left

with 85 petitions pertaining to 87 persons.

31 The Public Safety Act 1978, a law providing for preventive detention in

J&K.

32 The fact that 70% of a random selection of petitions related to preventive

detentions under the PSA was a bit of a surprise. Our impression, before the

study began, was that the overwhelming majority of the habeas corpus

petitions before the Srinagar bench of the High Court pertained to enforced

disappearances. In view of the significance of the statistic uncovered (which

was borne out by subsequent information gathering) we decided to split up

the study and to focus on cases of disappearance, separating the PSA petitions

for a subsequent study.

12

For purposes of comparison, we also included 11 cases in which no

such petition was filed. Insert FN Thus, in all we looked at 98 cases of

alleged enforced disappearance. These 11 cases 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 antagonize

the army and lessen the chances of their son coming home alive. Thereafter

10 more such cases were also included in the study sample. These

cases help to demonstrate that the filing of a petition made no difference

at all to the final outcome in cases of enforced disappearance.

These 11 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 Delhi High Court and the

National Human Rights Commission at Delhi were to no avail.33 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 and Kashmir. There seems

to be no reason for the denial of redress to these families other than the

fact that the persons arrested were Kashmiri.

Documentation

None of the court files that we had obtained were complete. In many

cases we had just a copy of the petition and nothing else. It took nearly

two years to obtain reasonably complete records of the petitions discussed

in the report. In part this was because many of these cases were

still pending when we first included them in our study sample but the

main difficulties lay elsewhere. Each case file was assigned a unique

number. Since the cases were spread out over a period of more than a

33 Since these were not habeas corpus petitions before the J&K High Court, we

have treated these cases as belonging to the category where no petition was

filed.

13

decade, for ease of identification each case was assigned a 'year-serial

number' combination. For example, petitions filed in 1990 were numbered:

1990/0001 (or 90/1), 1990/0002, 1990/0003 and so on.34 Cases in

which a petition was not filed were assigned a number based on the year

in which the case was acquired into the database. Since these cases

were all acquired in 2003 or 2004, they were numbered, 2003 (or 2004)/

0001, 2003/0002, 2003/0003 and, so on.

To make sense of the thousands of pages of court records and other

papers we prepared a chronology for each case. This gave us a datewise

record of all events in the case, starting from the date of arrest.

Apart from containing the gist of all hearings in the case, the chronology

recorded all file notes by the court staff, including remarks about

service of notices, filing of replies, reasons for not listing the case on a

pre-designated date, etc. It also incorporated correspondence relevant

to the case: between the families and the authorities and, between the

various authorities themselves. In addition, it included the gist of reports

of investigation by the police, by the inquiry officer appointed by

the Court, by the District administration, the State Human Rights Commission

(SHRC), etc. It also listed the documents acquired in the case.

Chronologies for pending cases were updated regularly, till September

2004, when we obtained the last batch of papers in the cases.

We also designed a database in which we entered the information that

we wanted to analyse. The data was entered in three tables. The first

table, called Personal Details, contains information on the disappeared

person and his background. The second, called Detention Details,

contains information relating to the arrest and detention. The third

table, called Court Proceedings, holds information about the case filed

before the High Court. For the purposes of this monograph, these three

tables have been amalgamated into two: one containing personal and

detention details and the other, called Time Line, an analysis of the court

proceedings. The two tables are Appendix – 2 and Appendix – 3,

respectively.

We developed a preliminary questionnaire for the field research, based

34 The year in which the person disappeared was not relevant for this purpose.

14

on formats used earlier. After a phase of testing and refining the instrument,

it was used as a basis for conducting the interviews and obtaining

information from the families. The interviews were carried out by small

teams of two or three persons, including an interpreter. I was personally

present for most of the visits/ meetings. In most cases we visited the

home (village or place of residence) of the families, though in 2 or 3

cases the family members visited us at our camp office in Srinagar.

Cautious in the face of a general air of suspicion, we did not initially

record the interviews. However, in June 2003 we tested the possibility

with success. Thereafter, all interviews were recorded.35

Apart from being integral to the study, interviews with the families of

the arrested/ disappeared persons served two vital purposes. They enabled

us to verify whether the person on whose behalf the petition had

been filed was still missing or, had since been released.36 We also obtained

copies of documents such as FIRs, representations to government

authorities, petitions to the SHRC and the NHRC (National Human

Rights Commission) and reports of the District Level Screening

Committee (DLSC), which did not form part of the court record, or

which were missing from the record, from the families.37 The two sources

of information, the families and the court records acted as a check upon

each other.38

35 Since we had completed only about a dozen interviews by then, most interviews

are recorded.

36 As many as 17 of the 87 detainees on whose behalf petitions were filed

before the Srinagar High Court had been released.

37 The DLSC is headed by the District Magistrate (now Deputy Commissioner)

and, includes the SSP, the Tehsildar, the SHO of the local police

station, and other district and sub-district level officers. It verifies the

innocence of the disappeared person. The reports of the DLSC are the basis

for the payment of ex-gratia relief and, grant of benefits under SRO-43 (a

government order), to victims of militancy. Their reports usually contain an

account of the circumstances of arrest and, often identify the unit responsible

for the disappearance, on the basic of investigation carried out by the

local authorities. Ironically, they never form part of the court records

38 Statements made by the families were checked against the court records and

other documents. Similarly, we frequently used the information supplied by

the families to make sense of disjointed or incomplete court records.

15

Challenges

Our first difficulty was that we did not have complete addresses for the

families we wished to visit.39 Tracing addresses was even more difficult

in Srinagar than in the rural areas because of the unprecedented, and

unplanned, expansion of the city after 1990; because of the exodus of

people from smaller towns and villages to the city, fleeing in search of

greater safety and security. Scores of new colonies and localities have

sprung up all over Srinagar, with no clear system of house numbers.

Many colonies had no numbering at all. Thus, finding an address was

often a matter of reaching the general vicinity and, to keep on asking till

one came across someone who knew the family we were seeking. Naturally,

in the prevailing climate people are suspicious of anyone asking

questions.40 Each visit took several hours. Having found the house

and introduced ourselves to the families, we had to explain who we were

and the purpose of our visit. Sometimes, the mere mention of our purpose

was enough to upset family members. It took time to help soothe their

emotions. Time was also consumed in partaking of the boundless

Kashmiri hospitality that was pressed upon us in every home that we

visited.

Another reason for the slow pace of work was the (wholly justified)

Kashmiri tendency of bolting themselves inside their homes well before

dark. I have frequently been told by people that when they step out of

their homes in the morning, the whole family prays that they return home

safely. Apart from the risk of arrest and detention during routine operations

like security checks, combing sorties and crackdowns, their greatest

fear is of becoming a victim of random retaliation in response to

militant attacks on the security forces.

39 Apparently, the J&K High Court has very lax rules about providing addresses

in the Memo of Parties that accompanies all petitions.

40 Kashmir is like a war zone, with soldiers, bunkers, check-posts and camps at

every few meters. Violence, by both the militants and by the security forces, is

an incidence of daily life. All Kashmiris are automatically suspect and treated

as hostiles: particularly in the wake of a militant attack. This translates into

a daily routine of harassment, intimidation and humiliation, which can only

be experienced, not imagined.

16

Since, in general, the suspicion of the security forces is directed

towards Kashmiris, "Indians" can move about in the valley with relative

ease. However, everyone is vulnerable to the general violence

that pervades the valley. We had fortuitous escapes from serious

harm on several occasions, moving to (or away) from the scene of an

incident just after (or before) it had occurred. The fact that most of

us were lawyers was of considerable help in dealing with the security

forces. On one occasion, when we were on a remote country road

well after dark, we were stopped by armed militants. They commandeered

our vehicle and compelled us to drive them to a nearby place.

On this occasion it was our Kashmiri colleagues who held the fort,

engaging the militants in conversation and ensuring that they left us

without further harassment.41

41 My silence, except for minimal greetings, allowed the militants to assume

that I too was a Kashmiri.

17

The Impossibility of Justice – I

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 have 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 inquiry officers in most

cases, were only marginally more responsive to the imperatives of their

office.

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 allegations,

stand 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,42 which

ought to have been done in the first place, without the Court's intervention.

43 To fully appreciate the absurdity of this we must also factor in the

number of years that it took the Court to pass such an order. In 10 cases

the order to register an FIR took between five to twelve years.

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

expression of contrition that the system showed for its mistakes was in

42 Or, completion of investigation in the FIR already registered.

43 In the remaining 43 percent cases the Court did not even order the registration

of an FIR.

18

its willingness to consider the grant of ex-gratia compensation to the

families of the disappeared.44

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 inquiry officers in most cases, was mixed. Despite working

under harshly adverse conditions they sometimes conducted exemplary

inquiries. However, in several cases the conclusions drawn in the inquiry

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 (90/6), 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.45 In 30 cases they took between one year and

44 This gesture is steeped in irony since the object of the scheme is to provide

compensation to 'Victims of Militant Violence'.

45 This includes the State government, which was a party in all the petitions.

19

two years to file their replies.46 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.47

The conduct of the security forces was even more scornful once the

case had been sent to the Inquiry 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 inquiry proceedings.48 In several cases the

Inquiry Judge recorded adverse remarks about the conduct of the accused

unit, specifically attributing the delay in completing the inquiry to

their tactics. In none of the inquiries 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 (91/12) case, the CRPF made the

Commandant and the Deputy Commandant of the 53 Bn to retire rather

46 The accused units responded in 58 of the 85 petitions examined. This

includes replies at any stage of the proceedings, whether orally or in writing,

so long as the same were reduced to writing by the judge.

47 It is an established pattern for most arrests to be unacknowledged to begin

with. Subsequently, for reasons that are not wholly clear (random chance?),

the arrestees get classified into two categories: those who disappear; and

those whose arrests are converted into acknowledged arrests.

48 We are unable to be more precise because of the manner in which the

security forces conducted themselves. In many cases the accused unit appeared

before the inquiry on a few occasions and, thereafter, absented

themselves from the proceedings. In some cases, they limited their participation

in the inquiry proceedings to filing a very basic reply or, some

rudimentary (and incomplete) documentation. In some cases the participation

went to the extent of cross-examining some of the witnesses produced

by the petitioner.

20

than produce them before the Inquiry Officer appointed by the High

Court.49

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 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.50

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.51 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 charge sheet

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.

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

49 This fact was mentioned by the inquiry officer in his report to the High

Court.

50 Section 197 of the Indian CrPC 1973 is the generic provision with respect to

the requirement to obtain sanction from the appropriate government in cases

where public servants are sought to be prosecuted/ tried for offences under the

IPC. Section 7 of the Jammu and Kashmir Armed Forces Special Powers Act

(AFSPA) contains a similar provision.

51 An FIR or a complaint was stated to have been filed in 60 of the 85 five

cases where petitions were filed.

21

central government has granted sanction to prosecute in only two of

the hundreds of cases in which such sanction was sought.52 In other

words, it is reasonable to infer that the central government was/ is not

inclined to permit the courts 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 PSA, served out his period of detention, was

released, and killed by the army in a fake encounter before the High

Court and its minions reached his home. The abjectly poor father of

Mohammad Yusuf Wahloo (91/8) told the Inquiry 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 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 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 inquiry in very few cases, being content

52 These are the cases of Parveena Ahangar, whose son, Javed, was disappeared

in 1990. Sanction to prosecute was recently granted by the central

government in this case, after a 14 year struggle for justice. The other case

pertains to the murder of prominent lawyer and human rights activist, Jalil

Andrabi. In both cases, we are informed, the court seized of the matter has

been unable to enforce the attendance of the accused officers.

22

to simply ask the police to register an FIR/ complete investigation in the

FIR already lodged.53

The facts we have examined and analysed inexorably reinforce the

conclusion about the irrelevance of the habeas corpus proceedings

to the meaning of sanctity of life and liberty under the Constitution

of India. 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 it out with a, seeming, air of unawareness of it.54

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 heard habeas corpus

petitions.

In this and the following two chapters, I shall analyse how the High

Court of Jammu and Kashmir dispensed justice. The first two of these

chapters are both called The Impossibility of Justice, while the third one

is called Brooding Omnipresence: Notional Powers and Actual Impotence.

The first stage of the analysis must necessarily be to establish

the broad patterns of the court proceedings. The first two sections

below, titled Absurdity At Large and The Empty Cases, illustrate the

general case. The third section examines the cases in which the inquiry

report returned a clear finding against the security forces. This section

53 In a way, this trend must be welcomed since this was the most likely order

that the Court would have passed even after the inquiry.

54 In fact, given space constraints, and the limitations inherent in a structured

presentation, it is impossible to do complete justice to our findings.

23

is divided into two parts: cases that have been disposed of or dismissed

by the High Court and, cases that are still pending disposal by the

Court.

In the next chapter (The Impossibility of Justice –II) we will first

examine several smaller categories. The section titled Where Guilt

Was Not Established enumerates the cases in which the inquiry returned

a finding of not guilty; cases in which inquiries were ordered

but not held; cases resulting in the High Court ordering inquiries

which were still pending; and, the cases in which the inquiries were

closed. The second section in this chapter covers cases where the

inquiry was not ordered. As the High Court did not order an inquiry

in over 27 percent of the cases this is a very important section, though

(necessarily) deficient in material from court records.55 Since the

collapse of the justice system cannot be attributed solely to the

faults and failures of the courts, the third section of this chapter

seeks to trace the impossibility of justice in the indefatigability of

the Union of India's resolve to shield its security forces from judicial

scrutiny and prosecution by denying sanction. The fourth and last

section looks at the cases that did not lead to the filing of petitions.

In every real and palpable sense the outcome in these cases was/ is

identical to those that went before the court. To reiterate, the filing

of a writ of habeas corpus makes no difference to any instance of

enforced disappearance and its outcome in Kashmir.

I. Absurdity At Large

While one may impose a structure upon the data in order to facilitate

analysis the fact of the matter is that there is really no structure, no

pattern: absurdity pervades everything and, in every way. The cases

below have been selected to illustrate this contention.

The case of Waheed Ahmad Ahangar (90/4), a 14 year old boy, epitomises

almost every aspect of the regime that Kashmiris live under. His

arrest was witnessed by almost the entire locality since a very large

force was deployed for it, with dozens of vehicles and scores of person-

55 The deficit has been made up by referring to information from the families.

24

nel. The BSF soldiers expressed incredulity at his extreme youth while

arresting him.56 The police refused to register an FIR regarding his arrest,

saying that there was a directive from the higher authorities against

registering such complaints. The family being fairly prosperous and

well connected met the Director General of Police (DGP), Mr. Saxena,

who arranged for them to meet with him in custody. They met Waheed

several times over the next six months. During this period he was subjected

to severe torture and was in considerable pain. He was also constantly

shifted from place to place.57 On 28 November 1990, two days

before Waheed's sister's wedding, his family learnt that he was critically

ill and in the intensive care ward of the army hospital at Badami

Bagh. Though they got permission to meet him, a CID inspector intervened

and pushed them out of the hospital. They have had no news of

Waheed since then.58

Waheed's father also met Rajesh Pilot in Delhi, who was then minister

in charge of Kashmir affairs in the central cabinet, as part of a delegation

representing parents of disappeared persons in Kashmir. Justice

Tarkunde, noted jurist and human rights activist was present during the

meeting. Pilot was very rude and called them liars. He gave them a list

of 60 names of people whose custody the government acknowledged.

Waheed's name was among those listed.59

Failing to secure his release through other means, his father filed a

habeas corpus petition before the High Court in November 1990. It took

56 His father says that Waheed was very childlike and kept baby chicken as

pets for a hobby. He suspects that his arrest may have been triggered by a

quarrel with some neighbourhood boys a few days prior to his arrest.

57 They met him in PAPA–II, one of Kashmir's most notorious interrogation

centres, at Pantha chowk, inside the BSF establishment there, at the JDG,

Shivpora, JIC and, several other places. Apart from DGP Saxena, they took

the help of Jaswant Singh (SP, CIK, J&K police), an IB officer named Bansi

Lal and, one Bashir Mirza of the 79 Bn BSF, who was a member of Waheed's

arresting party, for these meetings.

58 Outside the hospital they met a young Sikh boy who was known to them,

who worked in the cantonment. Waheed's father gave him Waheed's photo

and sent his watch and key ring and asked him to show them to Waheed, as

a sign from his family. The Sikh boy reported that Waheed wept on seeing

the items but could not send back any message as he was in no state to speak.

59 However, before the High Court the BSF claimed that they had, subsequently,

released Waheed.

25

two years for the Court to order an inquiry and another two for the

Court's registry to communicate the order to the Inquiry Officer appointed

for this purpose. The BSF admitted Waheed's arrest before the

inquiry and admitted he had been detained in PAPA-II. However, they

claimed he was released after a 22 day detention since he had agreed to

work for them.60 The release was claimed to have been effected through

the PCR (Police Control Room) but they said there was no record of the

release because, there was no system of making an entry in the PCR

regarding the release of a suspect.

The Inquiry Judge refused to accept this unsubstantiated contention saying

that without a record the … purpose of (release in this manner becomes)

an empty formality. On the basis of the eyewitness testimony

led before him, his report held the 141 Bn BSF responsible for disappearing

Waheed Ahangar.

In August 1997 the High Court directed the registration of an FIR, and

asked the CJM Srinagar to monitor the investigation. By the end of 2003

the CJM had sent two reports to the High Court. The first, dated February

2003, claimed that he was vigorously monitoring the investigation.61 The

second, dated October 2003, adverted to difficulties in procuring the presence

of witnesses as they have retired. Thus, over 13 years after Waheed's

disappearance, the High Court was reduced to directing the central government's

counsel to ensure that assistance is rendered by the BSF authorities.

This process is still going on. Waheed's father is not interested

in compensation, though he has been offered it several times.

Farooq Ahmad Bhat (91/11) was arrested in June 1991. Failing to get an

FIR registered, in November 1991 his family filed a petition before the

High Court. On 18 May 1992 the state government filed objections to

the petition stating that Farooq Ahmad Bhat s/o Abdul Ahad r/o

Hyderpora, Wazabagh, Srinagar had never been in custody, in any of

60 Note the brazen boldness of such a statement in the circumstances of the

case. Since his arrested stood admitted at the highest level, by a central

minister, the BSF had perforce to exculpate themselves. Since, it did not

matter what they said, as long as they said something, they decided to say

that he had agreed to work for them.

61 Given that the report was submitted nearly six years after the Court's order,

clearly, the word vigour has acquired a very different meaning in Kashmir.

26

the Joint Interrogation Centres (JIC) in the State. However, it was stated,

another person by the same name, one Farooq Ahmad Bhat s/o Abdul

Ahad Bhat r/o Zaloora, Sopore, Baramulla, had been detained under a

PSA order and was in jail in Jammu. The Court directed that this person

should be produced before it.

Instead of complying with this order, on 25 September 1992 the state

government filed an application admitting that on further investigation

…Farooq Ahmed Bhat son of Abdul Ahad Bhat R/O: Hyder-pora, Budgam

was arrested on 2.8.1992 in case FIR No.20/92 P/S CIK and sent to JIC

Jammu on 3.8.92 for further investigation.62 The Court directed the state

government to allow Farooq's family to meet him. Instead, a few weeks

later the state government filed another application 'clarifying' that after

thorough verification it was found that the detenu in the present case

was un-traced and is not with any of the Agencies of the State.63

It is not hard to imagine the plight of the family. The Judge who

heard the case on that date was also vexed at this flip flop. He

observed that the initial mention of the existence (in custody) of

some other Farooq Bhat could not be interpreted as anything but an

acknowledgement in a camouflage manner of the custody of the one

indicated in this petition. To dispel the confusion, he asked the

Additional Chief Secretary (Home), J&K to enquire into the matter

and trace Farooq's whereabouts from all the concerned agencies.

As is usual, there was no response from the concerned official for

over six months. Thereafter, in an abrupt turn, another Judge took a

completely different view of the matter and, treating the above mentioned

affidavit of SSP as the final word in the matter, disposed of the

writ petition on the ground that it is clear that the detenue is not

with the respondents.

62 The application asked that the petition filed on Farooq's behalf should be

dismissed, as he was not in custody at the point of time that the petition had

been filed. It was stated that, it was only on 2 August 1992 the cause for

filing the petition accrued to the petitioner.

63 The application was supported by an affidavit by the SP, CID (CIK) that

stated that the admission of Farooq's custody was an error due to the confusion

arisen from the below noted two more persons of the same name,

parentage and District which is awefully regretted (sic).

27

No attention was paid to the fact that various orders of the High Court

asking for Farooq Bhat's production in Court, and for an inquiry into

the confusion of replies, had been ignored. Shocked at this sudden

turn of events, Farooq's family appealed against this order. The appeal

was allowed and the case was sent back to the Single judge of the

Court, in July 1994. But by this time Farooq's family had exhausted its

reservoir of hope, and of perseverance. They stopped pursuing the

case.64

Failing to find any trace of Dr. Ghulam Hasan Sofi (94/5) after his

arrest, on 21 July 1994 his family filed the first of two habeas corpus

petitions before the High Court. It alleged that the '9 Para', stationed

at Aishmuqam, near Anantnag, was responsible for his abduction.

The state government replied that as per information received

from the army authorities Sofi was never arrested. In November

1994, the Officer Commanding Team 9 Para also filed a

reply denying his arrest. On 2 July 1996 the High Court ordered the

DJ, Anantnag to hold an inquiry and submit his report within four

months.

Meanwhile, in March 1995, the family had filed a second petition, in

which it was stated that Sofi was seen in the custody of the army, inside

Aishmuqam camp, by one Mohammad Yusuf Sheikh r/o Amad Wagad,

Tehsil Pahalgam.65 The army again denied his arrest. Once again, on 30

July 1996, the High Court directed the DJ, Anantnag to hold an inquiry

into Sofi's disappearance.

Both petitions continued on their parallel courses and, seemingly, no

one made the connection between them. However, the DJ held only one

inquiry and, his report only referred to the second petition.66 The army

64 The file of this case is not traceable in the High Court after 28 June 1994.

Therefore, we have no information about the current status of the case.

65 The family's intention was not to file a second petition but to supplement

the earlier petition, with the additional information learnt subsequently.

However, this information was cast in the shape of a fresh petition and was,

therefore, treated by the Court as such.

66 The report only referred to the High Court's order for an inquiry in the

second petition, though subsequent events made it clear that the District

Judge intended it to serve for both the petitions.

28

did not cooperate with the inquiry, though it was represented by a counsel.

67

The High Court disposed of the second petition first, in August 1998.68

The Court's order made no reference at all to the inquiry report submitted

by the DJ, Anantnag, basing itself entirely on the reply filed by the

army before the inquiry was ordered, denying Sofi's arrest/custody. It

held that in the face of these denials, the Court is not in a position to

grant any effective relief. Compounding the absurdity, at the same time

the Court directed the DJ, Kupwara to hold an inquiry … into the matter

(of Sofi's disappearance).69

Meanwhile, the Court continued to await the report of the inquiry ordered

by it in the first petition. Finally, in March 2003, after a series of

exchanges on the subject, the DJ, Anantnag apprised the High Court of

the link between the two cases and informed it that the inquiry report

with respect to Ghulam Hasan Sofi's disappearance had been sent as far

back as in January 1998. The clearing of this confusion did not result in

a rectification of the earlier error of judgment. In April 2003 the Court

dismissed the pending petition as being not maintainable on the ground

that it had already disposed of another petition in the same matter. Thus,

despite filing two petitions, Dr. Sofi's family suffered the indignity of

the Court disposing of both petitions without applying its mind to either.

In April 1994 the Court directed the DM, Kupwara to inquiry into

Mohammad Ramzan Wani's (91/2) disappearance and report his findings

within three months. In October 1994 the DM, Kupwara submitted

an interim report, along with statements of witnesses and, assured that

67 The inquiry report dated 31 December 1997 recorded that Despite several

opportunities the respondents did not adduce any evidence in rebuttal. …

There was no impediment for Rashtriya Rifles to come with clean hands

before this court either in person or thorough counsel ….. But since they did

not choose to do so the inquiry has to be concluded with a prima facie

finding that … Ghulam Hasan Sofi ….. was taken into custody by them and

has not been so far released.

68 It was disposed of in the absence of representation on behalf of the petitioner.

69 Besides the absurdity of ordering an inquiry in a matter in which the inquiry

report had already been submitted, it made no sense at all to order an inquiry by

a judge who sat over 120 km away from the scene of the incident.

29

the final report would be submitted shortly.70 Two years later, in December

1996, the Court's registry noted that the inquiry report has been

filed and tagged with the court file. In February 1997, the Court did not

find the inquiry report on the file of the case and asked the registry to

trace it. A court official issued a direction that letters should be written

to both, the DM, Kupwara, and the DJ, Kupwara to obtain a copy of the

missing report and its enclosures. The letter to the DJ, Kupwara was,

presumably, for assistance in obtaining the requisite papers from the

DM, Kupwara but somewhere along the line the court's registry converted

it into a demand that the DJ furnish the report of the inquiry that

he had been ordered to conduct in this case. The DJ, Kupwara repeatedly

wrote to the High Court stating that no such case was ever received

by this court for conducting inquiry but the High Court's registry

ignored these responses and continued to ask him to furnish the

report. Ultimately, the confusion was resolved and, in May 2002 the

DM, Kupwara forwarded his inquiry report to the DJ, Kupwara, who

sent it to the High Court.

The report held that it is established beyond doubt that Ramzan Wani

was apprehended during a crackdown. However, in a complete travesty,

the report refused to identify the units responsible for the arrest on

the ground that the accused units had denied carrying out the crackdown

in which he was alleged to have been arrested, and/ or his arrest.

The DM had on record before him a report of the SP, Kupwara, stating

that police investigation had established that the crackdown and arrest

had been carried out by the 132 Bn and the 76 Bn BSF. Further, as

stated in the report to the High Court, the DLSC, which is headed by the

DM, had cleared Ramzan's wife's request for ex gratia compensation,

as, the Committee's investigation into his disappearance conclusively

established that Mohammad Ramzan was arrested during a cordon

and search operation on 4.9.90 and has not been seen since then.71

Compounding the culpable bias of the Inquiry Officer, in August 2002,

11 years after the petition was filed, the High Court dismissed the peti-

70 Though the letter of the DM is to be found in the case file, the interim

report is missing.

71 Clearly, the DM was unwilling to indict the BSF, though he was willing to

compensate (a paltry rupees one lakh) Ramzan's wife for her loss.

30

tion with a cryptic order. No reasons were stated though, at the request

of the lawyer for Ramzan's family, the Court recorded liberty … to seek

appropriate remedies before appropriate court.

Nineteen year old Nazir Ahmad Sofi (93/3) was arrested by a combined

force of the BSF and the RR during a crackdown on 15 October 1993.72

According to a DD report of PS, Bijbehara recorded on the same date,

one person was shot dead and four people, including Nazir, were arrested.

73 The others were released but Nazir was disappeared. Eyewitnesses

stated that Nazir was very badly beaten on the spot and many

thought he was dead. But one of the other three arrested along with him

said that Nazir was alive while they were in custody together.74

Neither of the security forces involved filed a response to the petition

before the High Court. The state government filed a reply asserting that

Nazir had not been arrested or received in any JIC of the State government

so far.75 In May 1995, the High Court ordered the DJ, Anantnag to

inquire into Nazir's disappearance. In March 2004 the DJ wrote to the

High Court (in response to a reminder) to say that the file of the case had

not been sent to him. In the intervening nine years the High Court had

sent scores of reminders to the DJ, without any response. The case was

still pending before the High Court, which continued to await the report

of the inquiry ordered.

72 Nazir was in the first year of his Bachelor of Science course at the University.

He had no links with militancy. His family said that no one in their

extended family had anything to do with militancy.

73 As per the DD (Daily Diary) report, the soldiers were attacked during the

crackdown and one of their men was killed. In retaliation, they beat up

people indiscriminately, raped and assaulted women and destroyed property.

About 60 victims of assault and, one of rape were medically examined

at the Anantnag hospital. Major Gill and Commandant Sharma were identified

as the officers heading their respective units. An FIR (No. 86/93 u/s

302, 376 and 354 RPC) was also registered.

74 On the third day after Nazir's arrest, the Major of the RR unit involved told

his family that Nazir had been released and feigned surprise that he had not

yet reached home. On being asked, the Major said that there were no

witnesses to his release.

75 This was literally a stock reply in almost all cases.

31

According to Nazir's family, the DJ was factually wrong. They stated

that they had produced several eyewitnesses to Nazir's arrest before the

inquiry court and the inquiry proceedings had been concluded long

before the DJ's reply in March 2004 that he had not received the case

file. In which case, there is no explanation for what happened to the

inquiry report, which would, in the normal course, have been sent to the

High Court. Nor is there any explanation for why the matter was not

clarified by the DJ, Anantnag, in response to one of the many letters of

reminder sent to him by the High Court.

Mohammad Yusuf Wani (94/3) was arrested in May 1993 when the

house where he was staying temporarily, was raided.76 His family could

not obtain any information about what had happened to him. Ultimately,

they filed a petition before the High Court. The state government responded

in September 1994 stating that Yusuf Wani was arrested on 24

August 1993, and remanded to judicial custody on the same date.77 The

High Court failed to notice this reply, and ordered an inquiry into his

disappearance in March 1995, by which time he had already been released

after completing his period of detention under the PSA.78

In Khizir Mohammad Bhat's (95/2) case the army's (2 Garhwal) stand

was that they had released him into the custody of the Station House

Officer (SHO) PS, Pattan, District Baramulla. The SHO confirmed this

and claimed that he had personally put Khizir Bhat into a passing truck,

for being dropped to his home. Though he did not note the vehicle

number or the name of the driver, he had taken the precaution of gathering

three persons to witness the alleged departure of Khizir Bhat from the

police station. He had also taken care to note down the full particulars

of all three witnesses. Accordingly, these persons testified in the SHO's

favour before the Inquiry Judge.79

76 He was an electrician- fitter whose work frequently required him to stay

away from home 2-3 days at a time.

77 In other words, he was kept in unacknowledged, illegal detention for three

months. This case is unique because in none of the other cases in our study

sample has the state government filed an accurate response within a reasonable

time.

78 The petition was disposed of with this order and, to the best of our information,

the inquiry was not held.

79 The witnesses were a shopkeeper, with a shop near the police station and

two, alleged, passers by.

32

The inquiry report held that the arrest of Khizir Bhat by the 2 Garhwal

was confirmed. It also held that he had, subsequently, been released by

the army. The report concluded that Khizir Bhat was missing after he

was sent in a truck by police Station Pattan. The report accepted the

version of the then SHO, PS Pattan as being corroborated by independent

witnesses. He, also, accepted as plausible (and true) the SHO's

explanation for his failure to note the vehicle number and held that the

SHO has substantiated the same by deposing that during that period

army as a matter of routine used to lift various persons for

interrogation purposes and then used to leave them at different

places. Per chance Khazir Mohd. was left in police station Pattan.

Despite all this Khazir Mohd. Bhat was requested to stay in the police

station, for the night but (he) insisted … On this he was asked to

go. This way negligence is not imputable.80

Needless to say, the Inquiry Judge failed to notice the glaring contradictions

in the SHO's story and testimony. On the one hand he excused the

SHO's failure to note the vehicle number by claiming that in those days

this was a matter of routine. On the other hand, he found nothing unusual

in the very particular care that the SHO took to ensure that there

were witnesses to Khizir's departure from the police station and, to note

down the addresses of these witnesses.81 In fact, this incongruity was

brought into focus before the Inquiry Judge by a pointed question during

cross-examination, to which the SHO stated that as a matter of

routine Khazir Mohd. was helped and was left in a truck, least knowing

that the person will dis-appear. The logical next question (by the

complainant or the Inquiry Officer) should have been– why then, did

you call for public persons to witness his departure from the police

station and, why did you note down the names and addresses of the

witnesses with such exactitude that several years later you had no difficulty

in calling them as witnesses on your behalf in this inquiry?

80 Though helpless in the face of this testimony, Khizir's father was disbelieving

of the story of release saying that had he actually been released he

would have come straight home.

81 As if the SHO had anticipated that he would be required to prove that Khizir

Bhat had left his custody, safe and sound.

33

In a continuing parody, the state government filed objections to the

inquiry report before the High Court, disputing the stand of the SHO,

Pattan (and the consequent finding of the inquiry report), and putting

forth a whole new case. The SSP, Baramulla filed an affidavit denying

that Khizir Bhat had been released into the custody of the police of PS,

Pattan. The Court was informed that the 2 Garhwal had filed a report

with the police about Khizir's arrest, alleging that they had seized a

grenade from his house. On that basis the PS, Sopore registered an FIR

against him. It was stated that during investigation in this FIR the

police learnt that the army unit had found Khizir Bhat innocent and

released him, without notice to the police; holding that the seized

material had been left in his house by some unknown militant. Thereafter,

the police closed their investigation as untraced. On this basis,

it was prayed that the case be dismissed qua the state government.

Ignoring this complex (and ridiculous) web of lies, the High Court washed

its hands of the matter by directing the police to register an FIR and

investigate into Khizir's disappearance. Needless to add, nothing further

was done by the police, though a judicial officer had been directed

to monitor this process.

The case of Alam Sher (95/9) is a story of extraordinary negligence

by all concerned: the Army, the DM, Kupwara and, the High Court.

The petition on his behalf was dismissed with the remark arrest not

proved, on the basis of a mistake in the identity of the complainant. Two

women, both named 'Begum Jan', complained that their kin had been

arrested, and disappeared by the army. The name of the husbands of

the two complainants (and their addresses) was completely different.82

Yet, neither the army authorities nor the DM, Kupwara, who was appointed

by the High Court to inquire into Alam Sher's disappearance,

cared to distinguish between the complaints of these two different persons

with the same name.

82 The husband of the Begum Jan who had filed the petition before the High

Court was called Mohammad Yaqoob Khan, alias Solen, resident of village

Bhadurkote. The other lady's husband was called Mohammad Siraj-ud-din

resident of village Amrui.

34

The army did not participate in the inquiry ordered by the High Court.

However, it wrote to the DM, Kupwara stating that an independent

court of inquiry of which the Sub Divisional Magistrate, Karnah, was

a member had concluded that the allegations in the petition, filed by

one Smt. Begum Jan regarding the wrongful arrest of three persons by

the 7/8 Gurkha Rifles during May 1994 were baseless and deserved to

be rejected. In fact, the COI referred to by the army, pertained to a

complaint by the other Begum Jan.83 The report of the COI containing

the full identity particulars of the complainant and the disappeared persons,

was attached with this letter. Had the DM, Kupwara merely taken

the trouble to compare the names in it with the names of the concerned

parties in his inquiry he would have instantly discovered the army's

error.84 Instead, he submitted a report to the High Court, saying that

Alam Sher's disappearance by the army was not proved.

In May 2003, seven and a half years after it was filed, the High Court

disposed of the petition in terms of the inquiry report. There can be no

doubt that the High Court, too, did not apply its mind to the facts while

disposing of the petition.85

The case of Nazir Ahmad Malik and Mohammad Shafi Shah (97/1) exposes

the High Court's discomfiture at the dichotomy it straddles. Nazir

Malik and Shafi Shah were both picked up at the same time on 4 April 1997,

from a doctor's clinic in Karan Nagar, Srinagar. Three weeks later Nazir's

body was recovered from a ravine (nallah) in Uri. There is no information

about what happened to Shafi Shah. Two days later, both families, who

had met during their search for their sons, filed a contempt petition before

the Srinagar High Court, invoking the decision of the Supreme Court in

the DK Basu case, which lays down the guidelines to be followed by the

83 The complaint investigated by the army's COI pertained to the arrest/

disappearance of three persons, namely Mohammad Sirajuddin, Nambardar

of village Amrui and, Mohammad Iqbal and Riyaz Ahmed, both sons of the

said Mohammad Sirajuddin.

84 Nor did the DM, Kupwara care to resolve significant discrepancies between

the facts stated in the report to him by the SSP, Kupwara and the facts

contained in Alam Sher's mother's statement before him.

85 This is one of the more than 20 petitions which were disposed of by the

High Court in the absence of representation on behalf of the petitioner. It

is to be presumed that had there been such representation the error would

have been caught.

35

police while carrying out an arrest. The petition alleged that these guidelines

had been violated by the police in the course of arrest, elimination/

disappearance of Nazir Malik and Shafi Shah. The petition sought the

prosecution of the respondents for the crime of murder and, for the violation

of Articles 21 and 22 of the Constitution.86

The DK Basu judgement had declared that the guidelines laid down

therein were binding on the police throughout India, and a violation

would amount to contempt of court. In other words the contempt petition

was, in real terms, a substitute for a habeas corpus petition and, as

the record of the proceedings in the case shows, the High Court was

conscious of this fact. Yet, the fact that the proceedings were formally

tied with the decision in the DK Basu case was made an excuse by the

High Court to postpone the case for several years.

In October 1997, while noting that the respondents had still not filed

any reply, the Court also noted that another petition has been filed

before the Supreme Court regarding implementation of directions

passed in the DK Basu case87 and declared it advisable to defer orders

in the case before it till the Supreme Court gave further directions to the

state governments in this regard. Though it was thereafter called for

hearing from time to time on each occasion the case was adjourned for

the same reason, with no effort being made by the Court to inform itself

of the correct position. To the best of our information the case was still

pending in September 2004.

The case of Abdul Rashid Wani (97/8) illustrates how procedures designed

to check human rights violations by the security forces, get

subverted.88 Abdul Rashid, a truck driver, was arrested on 7 July 1997

by the 2/8 Gurkha Regiment, headed by a Captain Yadav. His arrest was

reported to his family by an eyewitness, one Farooq Bhat, a fellow driver,

86 In addition to the patent inconsistencies in the story put out by the police,

the family was not informed of the arrests of their boys, as was necessary

under the DK Basu guidelines. This was, by itself, sufficient to invoke the

High Court's jurisdiction, for a violation of these guidelines.

87 A factually incorrect statement.

88 Two factors were responsible in the main: first, the general climate of impunity

prevailing in the valley and, second, the pre-existing directives to the police

stations to refrain from registering complaints against the security forces.

36

who knew him. The police refused to register an FIR regarding his arrest

saying that we don't register complaints against the security forces.

This refusal was a significant fact in view of subsequent events.

Before the High Court, both the army and the state government denied

his arrest. Consequently, the High Court ordered an inquiry into Rashid's

disappearance. In April – May 1999, around the same time as the order

of an inquiry by the High Court, the SDPO, M.R. Gunj, Srinagar (a DSP

rank police officer), and the SSP, Srinagar, issued 'Clearance Certificates'

to the 2/8 Gorkha Rifles. These certificates were filed before the High

Court by the 2/8 Gorkha Rifles in support of their 'innocence' in the

matter of Abdul Rashid's arrest and disappearance. The first certificate

affirmed that there was no outstanding case against 2/8 Gorkha Rifles

and that no FIR was lodged or pending against them, from during their

tenure in Srinagar, from April 1997 to Dec 1998. The second certificate

stated that no criminal case/ FIR stands registered against the 2/

8 Gorkha Rifle … during their stay at Rawalpora.

The inquiry report dated February 2001 stated that the respondents did

not produce any evidence, despite being given time and opportunity.

Based on the testimony of Farooq, the eyewitness who was temporarily

in army custody along with Abdul Rashid, the report held that Captain

Yadav of the 2/8 Gorkha had arrested Abdul Rashid, and held the unit

accountable for his disappearance.

Back before the High Court, the army challenged the testimony of

the eyewitness. The High Court accepted the army's objections,

holding that the witnesses had repeated the name of Captain Yadav

in a parrot like fashion, without indicating their source of knowledge

or the circumstances in which they came across his name. This

view was patently incorrect, since Farooq Bhat was an eyewitness to

Abdul Rashid's arrest. The other witnesses had named him on the

basis of their meetings with Captain Yadav, subsequent to Rashid's

arrest. The petition was disposed of with a direction to the PS Soura

to register an FIR and investigate into Abdul Rashid's disappearance.

89 The Court also dismissed the plea for compensation for Abdul

89 The choice of police station was inexplicable as the incident took place

under PS Parimpora, a considerable distance away.

37

Rashid's disappearance by saying that there is little evidence to

show that fundamental right of life of the subject has been taken by

the officer. It, therefore, advised the family to try other remedies.

Not only was the rejection of the inquiry report perverse, the High

Court was completely misconceived in its refusal to consider grant

of compensation under its Public Law jurisdiction.

Two months after his arrest by the STF, Kupwara, the family of

Fayaz Ahmad Khan (97/11) filed a habeas corpus petition before the

High Court. The state government took nine months to file a one line

reply, denying Fayaz's arrest. Dissatisfied with this response, in

November 1998 the Court asked the respondents to file a detailed

counter affidavit giving a point by point response to the allegations

against them. It also required that the Sub-Inspector, who had headed

the police party that had allegedly arrested Fayaz, file a personal

affidavit responding to the allegations against him. Instead, more

than 15 months later, the State government informed the Court that

they were not in a position to locate the person of the concerned

Sub- Inspector.

The Court took exception to this statement, and asked the Superintendent

of Police, STF, Kupwara to file an affidavit listing the names of

the persons who were on the strength of the force on the relevant

date at Kupwara. This order was never complied with. Instead, the

SP, Task Force, Kupwara filed an affidavit in support of the objections

filed earlier, reiterating that Fayaz was not lifted by Special Operation

Group, Kupwara, till date as per records of this office.90 In view of

this response, in May 2000, the Court ordered an inquiry into Fayaz's

arrest and disappearance.

Fayaz's co-detainee, Shabir Ahmad, testified before the inquiry, confirming

that Fayaz was arrested by the STF at his pointing out, and was

kept along with him and two others in the STF headquarters at Aloochi

Bagh. Later he and one Abdul Gani were taken to Kupwara, from where

they were released on bail. The STF/ SOG did not produce any evidence

in rebuttal though they were represented by counsel, who cross-

90 The affidavit is typed entirely in capital letters, as if to emphasise its

contents.

38

examined all the witnesses.91 The inquiry report declared that it has

been clearly established that Fayaz … was arrested by S.O.G. personnel

from his house. However, the Inquiry Judge relied upon a contradiction

between the testimony of Fayaz's father and brother, who had said

that he was arrested by the SOG, Kupwara and, the testimony of the codetainee,

who said that he was arrested by the SOG, Srinagar, to hold

that it could not be said that Fayaz was arrested by the SOG, Kupwara.

While disposing of the petition, the High Court converted this finding to

hold that the fact of arrest could not be established in the inquiry. The

Court directed the police to register an FIR and investigate saying that

The State is under legal liability to take this enquiry to logical end.92

The case of Farooq Ahmad Bhat (99/4) brings to light a special facet

of the duplicitous functioning of the State and its minions in cases of

enforced disappearance. Since most arrestees are kept in

unacknowledged custody for considerable (though varying) lengths of

time, police and other state government officials adopted the practice of

issuing 'interview slips' on pieces of plain paper, whenever they wished

to allow a meeting between the arrestee and his family. On the face of it,

the issuance of such a document is proof of custody.93 However, the

state government pleaded otherwise before the High Court. Nine years

after Farooq Ahmad Bhat's disappearance, his wife filed a petition in the

High Court, in April 1999.94 As proof that the state government had

acknowledged having custody of her husband, an 'interview slip' dated

21 December 1990 was annexed with the petition. This 'slip' was signed

91 The STF metamorphosed into the SOG sometime in 1999-2000.

92 For Fayaz's family the Court's order, utterly illogical though it was, was the

"end" of the matter.

93 Many families told us that they obtained permission to meet their arrested

relative from an officer of the security forces or the police. They showed us

signed (and stamped) slips of paper on which such permission was granted.

In some cases the families were successful in meeting the arrestee on the

basis of this permission. (The case of Waheed Ahangar (90/4) is one such

example.) However, in many of the cases they were refused a meeting

despite the permission. [The case of Latief Khan (91/1)]

9 4 Explaining the delay, she stated that an earlier petition, filed by her father-in-law,

had been dismissed for non-prosecution, without her knowledge. Further, that

shortly after her husband's disappearance she and her children had been thrown

out of the family home by her husband's family. The petition stated that notwithstanding

the delay she had a right to know what became of her husband.

39

by Jaswant Singh IPS, Additional Deputy Inspector General Police, CID

(CIK), and it requested Mr. AK Bhan, the SSP, CID (CIJ) to allow the

parents of Farooq Ahmad Bhat, who was lodged in the JIC Jammu, to

meet him.

In response BSF and the army filed replies denying Farooq's arrest, and

seeking the dismissal of the petition on grounds of delay. The state

government's first reply was a bland denial stating that Farooq had not

been received by the JICs of Srinagar/ Jammu manned by the CID

organisation, and prayed that the petition be dismissed. In August 2000

the state government filed another affidavit saying that the 'interview

slip' filed along with the petition could not be treated as an admission of

custody. Thereafter, during arguments in the case, the state government

contended that Jaswant Singh, the officer who had issued the

'interview slip', had died. It was, therefore, not in a position to ascertain

whether the Farooq Bhat was actually in the State's custody at that time,

or not.95 At this, the Court asked the state government to file the address

of Mr AK Bhan, the then SSP, CID (CI-Jammu), to whom the 'interview

slip', had been addressed, so as to enable it to ascertain the facts

from him. The state government did not comply with the Court's directions.

Thereafter, in November 2000, without referring to its earlier order,

the Court dismissed the petition.96

The reasoning given by the Court while dismissing the case brings out

how warped arguments, based on distorted facts, lead to conclusions

predisposed to injustice. Referring to the 'interview slip' produced by

Farooq Bhat's wife, the judgement states as follows: This letter, according

to the respondents, might have been written without verifying the

fact because its language suggests that its author was not sure about

the detention. That is why he wrote, 'one Farooq Ahmed Bhat' instead

of writing Farooq Ahmed Bhat which makes the difference. The Court

further contended that (e)ven if this is ignored, the fact remains that ….

95 In this case, and in Latief Khan's case, the state government argued that

police officer in question, Jaswant Singh, had made it a habit of issuing

'interview slips' without verifying whether the person in question was actually

in custody or not. As such, its existence could not be taken as proof that

the State had custody of the person named in it.

96 The case was disposed of in the absence of representation on behalf of the

petitioner.

40

the State/ respondents has from the very beginning denied that Farooq

Ahmed Bhat was ever arrested or detained in JIC, the genuineness of

the interview slip becomes unlawful (sic) and no reliance can be placed

on it. Further more, the petitioner had remained silent merely (sic)

nine years before approaching this court. This only shows that she

knew that her husband was not detained. In that view of the matter no

relief can be granted because the arrest or detention of Farooq Ahmed

Bhat is not even prima facie established. The petition is dismissed

accordingly.

In Mohammad Rafiq Bhat's (99/5) case, the BSF's reply denying that 22

Bn BSF had lifted/ arrested Mohammad Rafiq Bhat on 19 August 1992,

determined the entire course of the proceedings in the case. Thereafter,

the case proceeded on the assumption that it was only the 22 Bn BSF

which was accused in his arrest. The assumption was misconceived. The

petition did not assert that Rafiq was arrested by the 22 Bn. On the

contrary, it was an admitted fact that three BSF Battalions – 22 Bn, 69 Bn

and 110 Bn – had operational jurisdiction over the area from where Rafiq

was arrested.97 The FIR lodged by Rafiq's family named all three Battalions.

It also named two officers, Inspector Jain and Commandant Sethi, as

members of the arresting party. Before the inquiry, most of the witnesses

on Rafiq's behalf named 69 Bn as being responsible for his arrest.

Besides failing to take note of this crucial point, the Inquiry Judge

also went astray while appraising the testimony of the witnesses.

The eye witnesses on behalf of Rafiq Bhat were crystal clear on the

fact that he was arrested by the BSF. However, they were not so clear

about the post arrest events, and their account varied from that of

Rafiq's parents.98 The Inquiry Judge was exercised by these contradictions

and decided to use them to become ambivalent about the

identity of the battalion that had arrested Rafiq.99 His report de-

97 One of the BSF witnesses admitted this fact before the Inquiry Judge.

98 Rafiq's parents were not present when he was arrested.

99 The eyewitnesses were primarily testifying to the circumstances of the

arrest while, Rafiq Bhat's parents were testifying to the events after the

arrest. Since the two sets of witnesses were testifying to two different sets

of facts, their testimony with regard to other facts, even if contradictory,

could not have been used to cast doubt upon the credibility of their testimony

about facts of which they were the authoritative witnesses.

41

clared that there was no doubt that Rafiq Bhat has disappeared but

held that (p)arents as well as other witnesses of the applicant have

not been able to prove as to which Battalion of BSF had arrested

Rafiq Ahmad.100

The final nail in the coffin was however left to the High Court, which

dismissed the case for non-prosecution, even as it was waiting for the

respondents to file objections to the inquiry report. Though the respondents

had not filed their objections, for which time had been granted

to them, the Court assumed that the absence of representation on behalf

of the petitioner on two consecutive dates was proof that the cause

does not survive. An extract from the chronology of the case, illustrating

the absurdity, is reproduced below:

21.02.2003 Date of inquiry report.

20.05.2003 Court order: None for the respondents. Parties granted

two weeks time to file objections.

08.07.2003 Court order: The respondents granted further time to file

objections.

13.08.2003 Court order: None for the petitioner. A proxy appeared

for the state government's counsel. Adjourned to await

the filing of objections by the respondents.

26.08.2003 Final Order: None for the parties.101 (O)n the last occasion

the case was adjourned because counsel for petitioner

was not present.102 It, therefore, dismissed the case

for want of prosecution.

100 Rafiq's father had testified that two days after his arrest, 69 Bn BSF had

admitted to arresting him.

101 In other words, the respondents had not filed objections and, no one appeared

on their behalf.

102 A patently incorrect statement. The order on that date was Await. Meanwhile

if objections are filed same shall be taken on record.

42

II. The Empty Cases

The cases discussed under this section are of those persons whose

initial, unacknowledged arrest and detention was subsequently converted

into detention under the PSA, or who were otherwise released.103

In all these cases, the families did not know the whereabouts of their kin

after their arrest for a considerable time, ranging from a few weeks to

about one year, during which period they filed these petitions.104 Here

too, the cases illustrate the dysfunctionality of the court processes.

They have also been selected with a view to show the propensity of the

state government to lie to the High Court. In several cases the state

government filed affidavits denying the custody of persons who were in

detention in jail, under the PSA or otherwise, at the time that the affidavit

was filed.105

Farooq Ahmad Najar (92/4) was arrested in the beginning of April

1992. His family filed a petition within a few days of his arrest. Since

the respondents failed to file objections despite being granted repeated

opportunities to do so, in November 1992 the Court closed

their right to file a reply and, directed the government advocate to

produce the relevant records at the time of hearing. Since the state

government failed to do this also, in August 1993 the Court ordered

the respondents to produce Farooq Najar. Instead, in April 1994 the

state government filed a reply denying his arrest or detention in any

JIC of the state government. The BSF did not file any reply. Thereafter,

the Court ordered an inquiry into his disappearance. In the

meanwhile, at the end of 1992, Farooq had been released, and his

family stopped following the case. After waiting for the inquiry report

for nearly eight years, in December 2002 the Court was informed

by the Inquiry Judge that as per his records no inquiry was pending

before him. Without batting an eyelid at this response, the High

Court re-ordered the inquiry. In March 2004 the case was still pending,

awaiting the inquiry report.

103 In all, there are 17 cases of this kind in our database.

104 Many of them were severely tortured during detention.

105 This is not to suggest that the security forces spoke the truth in their replies

and statements.

43

Mohammad Yusuf Wahloo's (91/8) family filed a petition in December

1991, about five months after his arrest. Soon after they filed the petition

they learnt that he was in jail, detained under the PSA. On learning of

his whereabouts, the family stopped following the case.106 Nine months

after the petition was filed, well into Yusuf's detention under the PSA,

the State government filed a reply to the petition, denying that he was in

their custody. In a display of seeming efficiency, the reply mentioned

that the only person approximating to that identity in the custody of the

State at that time was one Hilal Ahmad Wahloo, whose father's name

and village of residence was stated to be same as for Mohammad Yusuf

Wahloo.107

In July 1993 the Court's order erroneously recorded that the petition

was for the release of one Abdul Aziz Wahloo s/o Haji Zafar Wahloo,

(Yusuf Wahloo's father), who was actually the petitioner in the case. In

August 1993 the state government filed yet another reply, asserting that

Yusuf Wahloo had not been received in any of the JICs of the State

government. In view of this denial the Court ordered an inquiry into his

arrest. The inquiry report took eight years to write.

In the meanwhile, Yusuf Wahloo was released in 1995. A couple of

years later, in 1997, he was killed by the army in an alleged encounter,

while on a visit to a relative in a nearby village. The inquiry report

placed the correct facts about his custody, and his ultimate fate, before

the High Court, on the basis of a statement made by Yusuf's father, who

informed the Inquiry Judge that since his son was dead he did not wish

to pursue that case before the High Court. Despite this, the Court dismissed

the case in November 2003 on the ground that the counsel representing

Yusuf's father did not have any instructions from his client.

Two brothers, Parvez and Manzoor Shah (91/9) were arrested by the

army during a crackdown on their locality in December 1990.108 They

were released after about a month's illegal detention. The petition be-

106 The maximum period of detention permitted under the PSA is two years.

Yusuf spent over three years in jail. Thus, a good part of his detention was

illegal and/ or unacknowledged.

107 Yusuf's father told us that there was no person by the name of Hilal Wahloo

in their village.

108 They were arrested along with 50 or 60 others. All except five persons,

including Parvez and Manzoor, were released after two days.

44

fore the High Court was filed by a local welfare committee, acting on

behalf of families of those who were arrested. Thus, the petition was

actually filed a few days after the brothers were released, in February

1991.109

Till the end of the 1991, the respondents did not file a reply despite

being granted numerous opportunities. At this, the Court ordered the

state government to produce the two men before it. Since they were not

produced, in January 1992 the Court ordered their immediate release. It

also ordered the respondents to pay costs of five thousand rupees to

the petitioner committee.110 In May 1992, the state government filed a

reply, without a supporting affidavit, stating that Parvez and Manzoor

have not been received by the Counter Intelligence Agency so far. The

court ordered them to file a supporting affidavit. In August 1993 the

Court commented that the affidavit filed by the state government was

sketchy and said that it did not indicate whether the Counter Intelligence

Agency is the only source for verifying the particulars of persons

arrested by various forces operating in the Valley. Nor has any method

been indicated which is adopted after a person is taken into custody

by a particular Force. As such, the affidavit, prima-facie, falls short of

requirement.

The Court directed the SP, CID (CIK) to file a detailed affidavit, and to

produce the records of the relevant period. This was never done. The

Court also noticed that the costs it had imposed upon the state government

had not been paid. As a penalty for this casualness the court

ordered that they should pay an additional rupees five thousand. It also

directed the State's treasury to deposit this amount with the Court by

deducting it from the account of the Director General Police with the

treasury. The Court's registry was directed to ensure that this was done

within two weeks. For nearly two years thereafter, the proceedings in

the case continued in a routine fashion. In March 1995 the Court noticed

that the registry had been sending its order, directing the State

treasury to deposit rupees ten thousand from the account of the Director

General Police, to the wrong Treasury. It ordered that this error

109 The family never attended the case in Court since they had already been

released by the time it was filed.

110 The costs were never paid.

45

should be corrected and the compliance of its earlier order should be

reported. However, two months later the Court disposed of the petition,

based on the affidavit filed by the SP, CID (CIK) in 1992, without reference

to its orders with regard to the recovery of the costs imposed on

the police, or to the direction to produce the records.

Mohammad Abdullah Bhat @ Tari (92/1) was arrested in September

1992. His brother, Abdul Haq, filed a habeas corpus petition on his

behalf before the family learnt of his whereabouts. Once they were assured

of his safety, they did not bother to follow up on the case. However,

the petition remained pending before the High Court for several

years. In April 1994, when Tari was still in detention under the PSA, the

State government filed a reply stating that Abdul Haq not traced or

indexed in the records of the concerned JIC as he was not arrested or

detained by the State.

No one noticed the error in the statement: Abdul Haq is Tari's brother

and was the petitioner in the case filed on behalf of Tari.111 Tari was

released in August 1994. In February 2003 the High Court disposed of

the case with an order directing the DJ Pulwama to hold an inquiry into

Tari's disappearance. The absurdity lies in the fact that Tari is a very

prominent citizen, both as the head of the Jamiat-e-Ahle Hadis, Jammu

and Kashmir and, as the General Secretary of the Democratic Freedom

Party, which is headed by Shabir Shah. His statements and activities,

including the occasions when he is arrested (which happened several

times during this nine year interregnum) are invariably reported in the

press. As such, it makes no sense that the High Court continued to

entertain a petition of habeas corpus on his behalf for over a decade,

without making the connection.

Mohammad Aslam Mir (93/2) was arrested in September 1993 in a crackdown.

His family filed a petition after waiting for three months in the

hope that they would be able to secure his release without having to

111 See Yusuf Wahloo's (91/8) case above for a similar error by the High Court,

transposing the petitioner's name for that of the detainee. While errors are

always a possibility, despite all care, their frequency and the fact that they

were not caught, is a frightening comment on the state of the judicial

system.

46

move the Court. In April 1994 the state government filed a reply –

unsupported by an affidavit – stating that Aslam Mir has not been

received/ arrested by any JIC of the State so far. At this point of time

Aslam Mir was in custody, detained under the PSA, as well as in a

TADA case. Based on this statement, the Court was inclined to dismiss

the petition as infructuous but since the counsel for the petitioner was

not available on that day it asked the government counsel to file an

affidavit in support of the reply.112 The BSF also denied his arrest,

nearly two years after the petition was filed. In February 1996 the Court

ordered an inquiry into Aslam Mir's disappearance.

Before the inquiry, the state government admitted that Aslam Mir had

been received in MJIC Kot Balwal on 13.10.1993 and that he was

released on bail on 24 December 1994. In its final order in February 2003,

the High Court took no notice of the fact that in 1994, when Aslam Mir

was still in jail, the state government had filed objections stating that he

was not in their custody, supported by the affidavit of the Chief Secretary

of the State. On the contrary, the Court dismissed the petition for

want of prosecution.

Qazi Khurshid Ahmad Malkar (94/4) was arrested in June 1994. His

family filed a petition soon after his arrest, at a stage when they feared

that the security forces would disappear him. They lost interest after

they felt reassured about Khurshid's safety. After waiting for more than

a year for the respondents to file their replies, in August 1995 the Court

ordered that Khurshid should be produced before it. Instead, in September

1995 the counsel for the state government orally informed the

Court that Khurshid had already been released.113 Having said this,

they sought further time to file a reply. The reply, however, asserted that

no such person had been received/ booked by JICs of CIK Srinagar so

far. Not satisfied with this reply, the Court directed the respondents to

file a more detailed reply, stating whether they had ever arrested Khurshid

and, whether he was in custody of any other agency of the State. This

order was never complied with though the government counsel told the

Court that the reply had been sent for signatures.

112 Note that the Court was prepared to dismiss a habeas corpus petition on the

basis of a cursory denial of custody, unsupported by an affidavit.

113 The statement is recorded in the Court's order sheet.

47

In October 1996, the Court ordered an inquiry into Khurshid's disappearance,

on the basis of the denial contained in the reply already filed.114

The inquiry report contained a complete recital of Khurshid's dates of

arrest (under various provisions) and places of detention, between 1994

and 1997. The final order of the High Court, passed in March 2003,

noted these facts and, without going into the issue of the false reply

filed by the state government in late 1995, dismissed the petition as

infructuous; saying that as his two year detention period under PSA

was over he must have, since been released.

III. Where 'Guilt' Was Established

A. Disposed of or Dismissed

The lineage of the writ of habeas corpus is frequently traced to the Magna

Carta. In India the writ's power has mainly been tested in cases of

preventive detention. However, in the Sebastian Hongray case the Supreme

Court was called upon to exercise its powers under this writ in a

case of enforced disappearance.115 It was the first case of this kind

before the Supreme Court.116 Despite its severe shortcomings there is

no doubting the importance of this judgement. It established the nature

of the inquiry to be conducted in a case of enforced disappearance. The

Court held that an ex parte writ of habeas corpus should not be issued

unless the urgency of the situation demanded it or, the issuing of a

notice was likely to defeat justice. It held that the normal practice should

be to serve a notice upon the respondents in order to elicit their

response, and if the allegations in the petition are controverted, the

Court must investigate the facts. If on investigation the Court is satisfied

that allegations are correct the Court should issue a writ of habeas

corpus. Failure on the part of the respondents to comply with the writ

114 For the next five years the Court continued to await the inquiry report. In

July 2001, the Court's registry noticed that the Inquiry Judge had written a

year prior to that date to say that the inquiry report had been submitted as

far back as in January 1997. It took another year and a half for the registry

to obtain a copy of the said report.

115 Sebastian Hongray v. Union of India and others; AIR 1984 SC 571

116 This was not because of a lack of cases of enforced disappearance prior to

the date of this case.

48

(i.e. produce the person in their custody) would render them liable to

action for contempt of court, or worse.

Nearly a decade later the Nilabati Behara case conclusively settled the

issue of grant of compensation as a measure of redress.117 After an

extensive review of the development of this practice, starting from the

Rudal Sah case, the Court declared that the State's duty of care to ensure

that the citizen in its custody is not deprived of his right to life, is

strict and admits of no exceptions. It further held that the Supreme

Court and the High Courts have a constitutional obligation to do complete

justice, which included grant of compensation.118 It was not permissible,

it said, to relegate those aggrieved by a violation of their fundamental

rights to the normal civil law remedies.

The Court called such grant, a claim in public law for compensation for

contravention of human rights and fundamental freedoms; the protection

of which is guaranteed in the Constitution. It declared that such

compensation is an acknowledged remedy for enforcement and protection

of such rights, and such a claim based on strict liability made by

resorting to a constitutional remedy provided for the enforcement of a

fundamental right is distinct from, and in addition to, the remedy in

private law for damages for the tort resulting from the contravention of

the fundamental right.119 It held that such compensation is often the

only practicable mode of redress available for the contravention made

by the State or its servants in the purported exercise of their powers.

The Court went on to say that any other view …would not merely

render the court powerless and the constitutional guarantee a mirage,

but may, in certain situations be an incentive to extinguish life, if for

117 Nilabati Behara V. State of Orissa; AIR 1993 SC 1960.

118 Making it clear that the powers of the High Courts were co-extensive with

its own, the Court held that This Court and the High Courts, … have not

only the power and jurisdiction but also an obligation to grant relief in

exercise of its jurisdiction under Articles 32 and 226 of the Constitution to

the victim or the heir of the victim whose fundamental rights under Article

21 of the Constitution of India are established to have been flagrantly

infringed by calling upon the State to repair the damage done by its officers

119 The Court said that this principle was justified since the defence of sovereign

immunity was not available in cases of fundamental rights violations.

49

the extreme contravention (violation of the right to life) the court is

powerless to grant any relief against the State, except by punishment

of the wrongdoer for the resulting offence, and recovery of damages

under the private law, by the ordinary process. If the guarantee that

deprivation of life and personal liberty cannot be made except in accordance

with law, is to be real, the enforcement of the right in case of

every contravention must also be possible in the constitutional scheme,

the mode of redress being that which is appropriate in the facts of each

case. This remedy in public law has to be more readily available when

invoked by the have nots, who are not possessed of the wherewithal for

enforcement of their rights in private law. The Court also referred to

Article 9(5) of the International Covenant on Civil and Political Rights,

1966, to emphasise the correctness of its stand in this regard.120 The

position laid down in the Nilabati Behara case has been consistently

upheld since it was laid down, including in the internationally famous

decision in the DK Basu case.121

Notwithstanding these binding precedents, a Single Judge of the J&K

High Court felt the need for clarification of the powers and duties of the

High Court in such cases, and referred four questions to a Division

Bench of the Court.122 The Division Bench declared the following: the

Court has the power to appoint an officer to hold an inquiry into the

disputed allegation of arrest, and to report back his/ her findings; it has

a solemn duty to act promptly and to order an inquiry into the allegation

of arrest; the Court should ensure that the inquiries are completed quickly;

and, it was required to give careful consideration to the findings in the

inquiry report before coming to an independent conclusion, and then,

120 Article 9(5) says Anyone who has been the victim of unlawful arrest or

detention shall have an enforceable right to compensation.

121 DK Basu V. State of West Bengal; AIR 1997 SC 610.

122 The reference was made by a Single Judge hearing the habeas corpus petition

filed on behalf of Basharat Shah (91/12) on 2 September 1992 and, the

decision of the Division Bench on it was passed sometime in 1996-97. Four

questions were referred to the Division Bench: 1) What is the scope of a

habeas corpus petition and, what are the powers of the High Court with

respect to appointment of a commissioner/ inquiry officer for ascertaining

the facts of the case? 2) What is the value of documentary evidence which

comes forth from such commissioners? 3. In case of a divergence in documentary

evidence which set of documents should be relied upon? 4. In case

of non-location of the corpus what relief can be granted by the HC?

50

must act promptly and decisively against those found guilty.123 While

hearing such cases, it declared, it was essential for the Court to remember

that its primary purpose in a habeas corpus petition is to secure the

liberty of the individual or, to ascertain that he/ she had been arrested/

detained in accordance with law. Thereafter, it is also the Court's purpose

to ensure that the citizen who had approached the court got appropriate,

proper and effective relief.124

The Division Bench also held that the Court is not only the custodian of the

rights and interests of the citizens but has its constitutional obligation to

safeguard and protect them. …whenever it is called upon to perform such

a duty, the duty should not only be performed in fullest measure, citizen

approaching the court must be assured as well that appropriate, proper

and effective relief shall be granted to him. Not only that, where action

against an erring state functionary is called for, and where punishment

deserves to be meted out to a guilty culprit, this court does not hesitate in

taking recourse even to extreme alternatives and comes down very heavily

on those who violate and flouts (sic) the rights of citizens.

Needless to say, the J&K High Court did not follow the law in even one

of the cases examined by us. The meaninglessness of the proceedings

already stands exposed above. To bring the preposterousness into

sharper focus, we shall examine its orders in cases where the inquiries

ordered by it returned a finding of guilt against the security forces.

Inquiries were ordered in 62 of the 85 petitions. In 36 of the 62 cases

the inquiry report returned a finding against one or more unit of the

armed forces, or the anti-terrorist wing of the J&K police, variously

called the STF or the SOG.125 Eight of these cases were pending before

123 The normal course is to order the registration of a criminal case against

such persons but it was not barred from acting against such persons on its

own.

124 This statement must be presumed to echo the decision of the Supreme

Court in the Nilabati Behara case, where it was held that the compensation

ought to be awarded wherever there was a positive finding against an accused

person or force.

125 STF = Special Task Force; SOG = Special Operations Group. Like the notorious

Redline buses in Delhi, whose name was changed to Blueline in order to

avoid the inevitable association of their gory record with the colour of

blood, the STF was changed into the SOG after Farooq Abdullah became

Chief Minister in 1996.

51

the High Court in April 2004. The orders passed by the Court in the

remaining 28 petitions are illustrative of the malaise.

In as many as 16 of these cases the High Court disposed of the petition

with a direction to the police to register an FIR or, to complete investigation

in the FIR already filed.126 Four cases were dismissed for "nonprosecution" .

Three cases were dismissed/ disposed of, without any

direction because the inquiry report had failed to identify the force responsible

for the disappearance, though the factum of enforced disappearance

was affirmed.127 Two cases were dismissed/ disposed of –

again without any direction – because in these cases the central government

had refused to grant sanction to prosecute the accused officers.

128 One case was disposed of with a direction to hold a second

inquiry.129 In three cases the court ordered compensation to be paid to

the next of kin of the disappeared person.

The families of many of the disappeared are on record to say that

they did not even ask for compensation.130 Had they wanted compensation,

they would have applied to the state government directly.131

Notwithstanding this, the fact of the matter is that the High Court

had the power to award compensation wherever it found that the

right to life had been violated. In fact, the grant of compensation

was mandatory in cases where the violation of a fundamental right

had been is established. Yet, the Court ordered compensation in

only three cases. On the other hand, it specifically declined to consider

grant of compensation in six cases.

126 FIR = First Information Report; literally, the first report of a cognizable

(serious; rough equivalent of American 'felony') offence, lodged with the

police under section 154 of the Indian Penal Code 1908.

127 In all three cases the failure to identify was a failure of justice since there was

ample evidence on record to establish the identity of the force/ unit involved

in the disappearance.

128 These two cases are discussed in the next chapter.

129 In this case the Court accepted the objections of the security forces and, set

aside the inquiry report.

130 Many families told us that they filed the petition before the High Court

with an expectation of insaaf.

131 The state government has a scheme to give ex-gratia compensation to

victims of terrorist violence, which includes cash payment of rupees one

lakh and a government job to a member of the family of the deceased/

disappeared person.

52

Eighteen year old school boy Mohammad Maqbool Bhat (90/3) was

arrested by the CRPF along with a school friend, Naseer Dar, from a bus

stop. His family and friends saw him in CRPF custody, when he was

brought to the house for a search.132 Naseer was released after 16 days

of unacknowledged detention but Maqbool Bhat was disappeared. The

family lodged a report with the police. Their investigation confirmed

that the CRPF had arrested him, as alleged. However, no other action

was taken by the police. Naseer testified to Maqbool's arrest before the

inquiry ordered by the High Court, which held the CRPF responsible for

his disappearance.133 On the basis of this finding, in October 1998 the

High Court awarded Maqbool's father rupees fifty thousand as

compensation; without specifying the party liable to pay it.

Both the State government and the CRPF appealed against this order,

contesting their liability to pay the compensation. The High Court allowed

this bickering to go on for four years. The state government

argued that it was not liable to pay any part of the compensation since

Maqbool had been arrested and, disappeared by the CRPF. It asserted

that the CRPF force is working in the State in order to aid and assist

the civil administration in a legal manner. The CRPF personnel are

not allowed and cannot be allowed to take law in their hands and

commit illegal acts and kill innocent public and in case they do so,

they are themselves responsible or their their (sic) employer which is

Central Government, who can alone be held responsible vicariously

for their acts … The CRPF organization is the central sponsored force

in the J&K State and perform their duties at the dictation of the Union

Ministry. … In case the responsibility for payment of compensation is

fixed upon the State government that will become licence for the CRPF

for doing illegal acts as they would be answerable before none and

State government will have to pay for the CRPF personnel's illegal

acts and whole State will suffer. Ultimately, the High Court held the

state government liable to pay the compensation ordered.134

132 Nothing incriminating was recovered.

133 Since the CRPF objected to the finding of the first inquiry, the High Court

ordered a second inquiry, which also held the CRPF guilty of disappearing

Maqbool Bhat.

134 Maqbool's father was persuaded by his lawyer to accept this compensation

on the assurance that they would appeal against the order, challenging the

Court's failure to order action against the guilty parties. However, he died

in July 2003, before this could be done.

53

In Manzoor Zargar's (90/6) case the inquiry report holding the BSF

guilty of disappearing him was primarily based upon the testimony of a

co-detainee. The inquiry report states that this witness had withstood

extensive cross-examination by LC (Learned Counsel) for the respondents.

After receipt of the inquiry report, in May 2000 the High Court

recorded that It is agreed on both sides that Manzoor Ahmad Zargar is

dead. Only relief prayed for is compensation.135 The Zargar family

lawyer completed his arguments on 7 November 2000. For the next one

year the case was repeatedly adjourned for hearing the arguments on

behalf of the respondents. Ignoring this fact, on 30 October 2001 a

different judge expressed displeasure at the absence of Manzoor's

counsel, saying that Manzoor's family appears not interested and,

disposed of the writ petition saying that question of compensation is

…left open depending on … if anyone comes forth to pursue the matter

thereto as also the facts and circumstances which may emerge on record

and on investigation of the case.

In Malik Nissar Ahmad Shah's (91/4) case, despite holding that the inquiry

established the prima facie … involvement of 53 Bn in his arrest and

subsequent disappearance, the Court declined the request for grant of compensation

on the ground that the matter involves proof on evidence which

can be taken by filing petition in proper forum …seek(ing) compensation.

In Syed Shariefuddin's (91/6) case the inquiry report holding 141 Bn

BSF responsible was based upon the testimony of a co-detainee. Though

the High Court accepted the inquiry report findings it disposed of the

case with a direction to the police to register an FIR.136

In Basharat Shah's (91/12) case the respondents (including the state

government) argued that compensation was not payable to his aged

parents since their prayer in the habeas corpus petition was only for the

production of Basharat before the Court. They also, argued that the

grant of compensation was permissible only once the guilt of the accused

had been established before the criminal court.137

135 Ten years after his disappearance all other quests seemed futile and, his

family was exhausted. Thus, they agreed to limit their prayers to the grant

of compensation.

136 The order was passed in the absence of the petitioner or her counsel.

137 The case is discussed more fully below.

54

The role of the High Court in Sajad Bazaz's case (92/2) and Nazir

Gojar's case (93/4) has been discussed in detail in the next chapter. The

only point to be made here is that the refusal of the central government

to grant sanction to prosecute the accused officers does not constitute

an impediment to grant of compensation. Yet the High Court failed to

consider the issue while dismissing these two cases.

In Riyaz Ahmad Khan's case (92/5), apart from eyewitness statements,

there was contemporary police record to establish that he had been

arrested and disappeared by the 5 Guards. The High Court accepted the

inquiry report without reservations but disposed of the case with a

direction to the police to register a case, saying that In the inquiry

report, the guilt has not been fixed on any individual/ officer of the

unit.138

Bashir Ahmad Lone's (94/2) case typifies how the Court processes and

the respondents together sap the stamina of the families, forcing them to

give up on their quest for justice. The subsequent remarks of the Court,

critical of the failure of the petitioner to pursue the case, appear in poor

taste. In this case, there was no doubt at all that Bashir had been arrested

by an army patrol. The controversy – raised by the army (4 Grenadiers)

after the inquiry report had been sent to the High Court – centred

around the identity of the unit to which his abductors belonged.139 The

4 Grenadiers produced some document that purported to show that it

was posted outside Kashmir at the time of Bashir's arrest. Thus, at

worst, the witnesses before the inquiry were mistaken about the identity

of the unit that arrested Bashir.140 Without questioning the failure of the

4 Grenadiers to state this fact in their reply several years earlier, the

Court merely accepted the objection and ordered a fresh inquiry. Four

years later, based upon a report from the judge conducting the second

inquiry that the inquiry proceedings were being held up because Bashir's

family had not been appearing before him, the Court disposed of the

138 This would not have been a necessity even in civil proceedings, leave alone

in writ proceedings.

139 The point was not taken in the reply filed by the 4 Grenadiers before the

inquiry was ordered. The unit also kept away from the inquiry ordered by

the High Court, despite being summoned repeatedly.

140 See the discussion on this issue in the next chapter.

55

petition as, it seemed that the petitioner was not interested in pursuing

the matter any more.141 Thus, notwithstanding their culpable failure to

cooperate with the judicial process, the army was able to ensure justice

for themselves. However, there was none for Bashir and his family.

The police registered a case regarding Riyaz Ahmad Gilkar's (95/4)

arrest immediately after the event but did not carry out any investigation

in it. The Inquiry Judge relied upon the police report of the incident to

confirm that a crackdown had taken place, and that Riyaz was one of the

four people arrested by the army (2 RR) on that date. Ten years after the

incident, the Court disposed of the petition by merely ordering the registration

of an FIR, with not even a word of censure to the police for not

having investigated the report lodged immediately after the incident.142

In addition to exposing the High Court's lack of decisiveness, the case

of Ghulam Hassan Baba (95/5) also illustrates the routine negligence of

all proceedings.143 Over eight years after the petition was filed, in August

2003, the High Court disposed of the petition, holding that As

Inquiry Officer has prima facie made out the involvement of an officer

of the forces and regular investigation would be required to ascertain

facts …it is accordingly directed that FIR be filed in the Police Station

Aishmuqam. The investigating officer will … complete the investigation

without delay. Perhaps the Court was intimidated by the 'objections'

to the inquiry report filed by the army, which argued that (i)t has

become a compulsion by the people instigated by terrorist (sic) to take

up cases against the security forces.144

141 Bashir's poverty stricken family told us that they had lost all hopes of

justice and, their ability to pursue the case was completely exhausted.

142 This order was passed in the absence of representation on behalf of Riyaz

Gilkar.

143 For several years the Court registry kept sending reminders to the DJ,

Budgam to complete the inquiry, though it was pending before the DJ,

Anantnag. Bettering the High Court, when the inquiry was nearly concluded,

the incumbent Inquiry Judge discovered that his predecessor had

failed to issue notice to the '9 Para', the accused army unit. Thus, the

inquiry was commenced de novo three years after it was ordered.

144 They argued that since the witnesses were all related to Ghulam Hassan Baba

their testimony was biased and, could not be relied upon. This was also

argued by the army in the Sebastian Hongray case.

56

The case of 22 year old Fayaz Ahmad Bhat (95/6) is rare for the high level

endorsement of the fact of his arrest that it received.145 Perhaps for this

reason, the army filed an affidavit accepting his arrest. The reply claimed,

on the one hand, that 250 feet of safety fuze (sic) and six sleeping bags, …

a handgrenade and, … Amn AK – 21 rounds were recovered from him.

Simultaneously, it claimed that upon interrogation Fayaz was found innocent

and released as white on the next day, in the presence of witnesses.

Since the army's witnesses denied that Fayaz had been released in their

presence, asserting that their signatures on the Release Certificate produced

by the Army had been obtained by fraud, the inquiry report held

the 1/4 Gorkha Rifles responsible for his disappearance.

Back before the High Court, the 1/4 Gorkha Rifles filed objections asking for

a fresh inquiry on the ground that the Inquiry Judge had failed to examine a

police constable, Qasim Din, Belt No. 363-T, who was also witness to Fayaz's

release.146 It was also alleged that they were not given sufficient opportunity

to produce witnesses.147 Having succeeded in persuading the Court to

order a fresh inquiry the army did not participate in the proceedings, despite

numerous opportunities offered to them.148 The second inquiry affirmed

the finding of the first inquiry. Eight years and two inquiries later the High

Court disposed of the case, directing the police to register an FIR and to

investigate the matter of Fayaz's disappearance.

In Mushtaq Chacha's (95/8) case the counsel for the state government,

and the BSF, argued that they are not liable to pay any compensation

for violation of fundamental rights guaranteed under article 21 and

22 of the Constitution. The remedy … is under General Law in tort for

damages in criminal law. The writ jurisdiction of the court cannot be

a substitute forum.149

145 At his family's behest the DM, Anantnag contacted Brigadier Bhupinder

Singh, head of the 33 Mountain Brigade, who assured him that Fayaz would

be released after following the due process of law. Failing to secure Fayaz's

release, the DM reported his conversation with Brigadier Singh to his superiors,

and to the Advisor to the Governor, requesting their intervention.

146 It was argued that though it was not able to provide the name of the

constable to the Inquiry Judge it was his duty to trace out the constable and

record his testimony, since he had been informed of his existence.

147 The inquiry report records that the army was allowed four adjournments for

this purpose.

148 As per the second inquiry report.

149 The case is discussed more fully in chapter 5 below.

57

The Court's order in Sheikh Gowhar Ayub's (95/10), case was confusing,

to say the least. Despite several opportunities, the army did not file

objections to the inquiry report, which had positively identified 7 Jat as

the unit responsible for disappearing Gauhar Ayub. Finally, the Court

directed the CJM, Srinagar to monitor the investigation of the case and

see to it that the report of the enquiry conducted by the enquiry officer

is lodged with the concerned police station. The Court also granted

the army the option to file objections to inquiry report before the CJM.

It is not clear whether the Court ordered a fresh inquiry (and, if so, for

what reason) or, whether it had directed the CJM to monitor the police

investigation into the case. Gauhar Ayub's family told us that this order

was uniformly interpreted by the police (and the family's lawyer) to

mean that a fresh inquiry had been ordered.

The case of Ghulam Mohammad Ahangar (96/4) illustrates the injustice

of disposing of a habeas corpus petition in the absence of the petitioner,

or her counsel. By the time the inquiry was ordered by the High Court,

Ghulam Ahangar's wife had remarried.150 For this reason the Inquiry Judge

faced some difficulty in serving notice of the inquiry upon her, which he

communicated to the High Court. Ultimately though, the inquiry was

concluded, the report holding that Ghulam Ahangar had been disappeared

from the custody of the 30 Bn BSF. (Not only did we find the report in the

Court's file of the case, we also read a file noting by the registry stating

that the inquiry report had been received and, tagged with the file of the

case.) However, ignoring the report, and the file noting, the High Court

allowed itself to be misled by an erroneous submission by the counsel for

the respondents (the security forces) that the inquiry proceeding could

not be completed on account of the petitioner's failure to assist it and,

disposed of the case with the remark that LC for the respondent submitted

at the bar that … the petitioner has not been produced before the Ld.

Sessions Judge. Obviously it could not be possible for the Ld. Sessions

Judge to make any head-way in the inquiry. So much so, none appears

for the petitioner, has also opted for an oblivion (sic)."151

150 In this case, a good part of the delay was on the petitioner's account.

151 In a show of fairness, the order also stated that in case the Ld. Sessions

Judge concludes the inquiry and the inquiry report calls for any further

action, in such eventuality it shall be placed before the court and dismissal

of the petition shall not work as an impediment for further proceedings.

Needless to add, the remark was also consigned to the oblivion of the case.

58

The cases of Javaid Ahmad Bhat (96/5) and Tariq Ahmad Rather (96/6)

illustrate the capriciousness of the justice processes. Both boys were

disappeared in the same incident and, the inquiry report was common to

both. In detailed objections to the inquiry report, which held against

them, the army contended that the testimony of Altaf Hafiz, , co-detainee,

and hence, eyewitness to their arrest, should have been rejected as he

was an interested party. The High Court rejected these objections.

Tariq's petition was disposed of with a direction to the police to register

a case against the accused persons and, investigate the matter within

three months. No further action was taken pursuant to this order. In

Javaid's case the Court directed the Additional Chief Secretary (Home)

to get a case registered and, investigated by the concerned police station.

Ironically, though Javed Bhat's case was disposed of in the absence of

a representative on his behalf, the FIR resulted in a charge sheet being

filed before the competent Magistrate who, in accordance with section

549 of the State's Penal Code, and section 125 of the Army Act, offered

the CO of the accused officer the option to choose the forum for trying

the accused – whether via a court martial or by the ordinary criminal

court. According to Javaid's father, no reply had been received from the

army till July 2003.152

In Shabir Hussain Bhat's (96/7) case the High Court had ordered the

registration of an FIR while the petition was pending, and asked the

CJM, Srinagar to monitor the investigations. The petition was disposed

of on the basis of a submission by the police that the investigation had

been completed and the charge sheet against the accused was ready for

filing before the court. On this basis, the Court declared that there was

nothing further for it to do in the petition.153

In Mohammad Akbar Rather's (97/3) case, the inquiry report held that

he was arrested by the 8 Bn Raj Rifles Camp Palhalan … headed by

Major S.S. Sinah (sic) … code name … (Liakat Ali Khan). The wit-

152 The charge sheet covered the disappearance of both Javed and Tariq.

153 The order notes that counsel for petitioner stated that he wants to file legal

proceedings for recovery of compensation against UOI and the state government.

The Court, therefore disposed of the petition with the remark

that the petitioner is left to pursue the said remedy (for compensation) if

available to him under law.

59

nesses … have … stated that the (sic) saw … Akbar Rather in the Camp

… in the evening on 8th November 1996 … his whereabouts are not

known since then. Despite this clear finding, the High Court termed

Akbar Rather's disappearance a disputed question, and disposed it of

with the standard direction to the police to register a case and investigate

it.154

The inquiry report in Abdul Khaliq Pir's (97/5) case relied upon

eyewitness testimony and a police report to hold that he was arrested

by the 50 Bn CRPF. The High Court took note of the report but

disposed of the case with a direction to the police to expedite the

investigation in the case already registered. The Court rejected the

plea for grant of compensation holding that there is no evidence …

to arrive at a decision for payment of compensation … the petitioner

is at liberty to move before the appropriate court for that

purpose.155

The 20 Grenadiers participated fully in the inquiry into Mohammad

Shahban Khan's (97/6) disappearance. The Inquiry Judge disbelieved

their case and, based on the evidence led before him, held that

he had been arrested by the 20 Grenadiers and, had not been heard of

since. On receipt of the inquiry report, the High Court ordered service

of notice upon the respondents. According to the case record,

the case was listed before the Court for the first time, after service of

the notices upon the respondents, on 5 February 2002. On that date,

the counsel for the petitioner was absent, though he had been present

on earlier dates. They Court did not bother to even ask the counsel

for the respondents whether they would be filing objections to the

inquiry report. Instead, disparaging the absence of the petitioner's

counsel, the Court dismissed the case with the remark that (i)t seems

that the petitioner is not interested to pursue this matter. Disproving

the observation, Shahban Khan's family filed a fresh petition,

seeking action and compensation.156

154 The order was passed in the absence of representation on behalf of the

petitioner.

155 The order was passed in the absence of representation on behalf of the

petitioner.

156 This petition was still pending when we last heard from the family.

60

Nisar Ahmad Wani (98/1) was arrested by a combined force of the 20

Grenadiers and the 35 RR, in the course of a crackdown in his locality.

157 None of the respondents participated in the inquiry proceedings,

despite repeated service of notices upon them. On the basis of

eyewitness testimony the inquiry report held that Nisar Wani was

picked up by the RR on 30 March 1997 during a crackdown in

Batamaloo.158 Though the inquiry report held the RR responsible, it

was the 20 Grenadiers that filed objections to it. The objections

argued that as Batamaloo is located on the National Highway, where

a plethora of security forces operate, the identity of the forces involved

cannot be ascertained on the basis of these statements. (i.e.

The witness testimony before the Inquiry Judge.) The High Court

sidestepped a decision on whether or not to accept the objections

filed by the 20 Grenadiers, holding that the facts of the case needed

to be verified in the course of investigation. Further, it remarked that

the objections notwithstanding, the disappearance of Nissar Ahmed

Wani is a matter of concern. The petitioner must know how and in

what circumstances the boy has disappeared…. Who authorizes

such search or crackdown by the Army … because ordinarily the

Army does not on its own conduct such searches and such operations

as the law exists (sic). These are all questions which have to

be investigated by the police after registering a regular case.

The Court declined to consider grant of compensation, saying that compensation

has been awarded in only those cases where police excesses

were proved either by custodial death or otherwise. (This) .. is a case

where the facts are disputed and required to be investigated after

registering a case. So, no compensation … when the very basis of the

fact finding enquiry is challenged. The Court directed the SSP, Srinagar

to register a case and get it investigated by a senior officer within six

months. However, nearly four years later the police had only managed

157 The local police, including the SHO of PS Batamaloo, were present. However,

in its reply the state government merely denied all knowledge of the

incident.

158 The confusion about the identity of the accused unit arose because the 20

Grenadiers were based in the camp that is commonly known as the 'Bemina

Boat Colony RR Camp'. The 20 Grenadiers was one of several units stationed

in this camp, at that time.

61

to confirm that Nisar Wani was arrested during a crackdown. The 20

Grenadiers remained completely uncooperative, despite the intervention

of the IGP Kashmir.

B. Still Pending Disposal

There were 14 cases still pending before the High Court at the end of our

last field visit. Of these, in eight cases an inquiry had returned a finding

holding the security forces responsible for the enforced disappearance.

Three of these, the cases of Waheed Ahangar (90/4), Mohammad Afzal

Shah (97/12) and Ashiq Hussain Malik (97/9), have been discussed in

other sections/ chapters. The remaining cases are briefly discussed

below.

All the three persons to whose houses Javed Iqbal Kemu (97/4), resident

of district Doda, was taken after his arrest from Srinagar, deposed

before the inquiry ordered by the High Court.159 All of them confirmed

that Javed Kemu accompanied the raiding party, in its custody. Thus,

though the 20 Grenadiers denied his arrest the inquiry report dated

September 2001 held that Javed … has disappeared in the custody of

security forces and most probably in the custody of respondent No.5

Unit 20 R.R, Bemina, Srinagar.160 This conclusion … has been arrived

at in view of the evidence on record. The time between then and April

2004 was consumed in getting the respondents to file their objections to

the inquiry report.161

Scores of villagers accompanied Bashir Ahmad Bhat (97/7), resident of

Kuligam, Lolab, district Kupwara, when he was arrested from his house

and taken to the army camp at Kuligam (Panzgam). Before the inquiry,

the CO of the 12 MLI (Maratha Light Infantry) argued that there was no

question of arresting Bashir as he was a surrendered militant, working

for the army as a source.162 The Inquiry Judge preferred to accept the

159 The information in this case is based solely on the Court record.

160 The mention of 20 RR was probably a typographical error arising from the

confusion mentioned in FN 159 above.

161 By that date the state government had still not filed its objections.

162 He claimed that there was documentary proof of these assertions but since

he had been shifted from Panzgam in August 1999, he no longer had access

to the records. The Inquiry Judge issued several notices to the army authorities

to produce the relevant records but they did not do so.

62

testimony of the village Chowkidar, and of the village Headman, that

Bashir had been arrested by the 12 MLI, and had disappeared thereafter;

which testimony, he stated in his report, was given despite threats

and intimidation by the army. Immediately after reading the inquiry

report, in October 2003, the Court ordered the SSP, Kupwara to file a

status report about the investigation in the FIR regarding Bashir's arrest.

163 The case was pending in April 2004, waiting for the respondents

to file objections to the inquiry report.

Ghulam Qadir Pandith's (98/4) family learnt of his arrest the day after it

had taken place. Two days after his arrest Ghulam Qadir was brought

home for a search.164 Nothing was found during the search. Qadir's

arrest and torture by the 13 Garhwal was confirmed by the SHO of the

local police station in a report to his superiors.165

In its reply to the petition filed on behalf of Ghulam Qadir the army

claimed that two police constables from PS Bandipora were witness to

his escape from their custody during an arms recovery trip. The Inquiry

Judge went to some pains to ascertain the truth. Despite the army's

reluctance to summon these two constables he insisted, and summoned

them as court witnesses. One of them, Abdul Majid, testified before the

inquiry and categorically stated that neither he nor his colleague were

witness to Ghulam Qadir's alleged escape. He stated that they were

made to wait about two kilometres from the search area, while the soldiers

went into the forest with a civilian. After some time they heard the

sound of firing. Shortly thereafter the soldiers returned without the civilian,

claiming that he had escaped. The inquiry report stated that

Ghulam Qadir had disappeared from army custody.166

163 The report was not filed till April 2004. However, in July 1998 the SSP,

Kupwara had informed the Additional DGP, CID that the 12 MLI had denied

Bashir's arrest and, therefore the case regarding his disappearance had been

closed as untraced.

164 He was in a bad shape, unable to walk by himself.

165 Based on police investigations, it stated that Ghulam Qadir had been killed

in custody.

166 The Report was sent to the High Court in July 2003. The case was still

pending before the High Court in February 2004 as the army had not filed

their objections to it.

63

Manzoor Ahmad Ganai (98/7) was arrested by the 34 Bn BSF on 5 April

1995.167 A year later, in a report to the SSP of Srinagar, the local police

reported they had found an independent eyewitness who confirmed

Manzoor's arrest but could not identify the force/ unit responsible.168 In

response to the petition filed on his behalf, the Commandant of 34 Bn

BSF denied Manzoor's arrest. Based upon the eye witness testimony

and other evidence the inquiry report dated April 2002 held that Manzoor

had been arrested by the 34 Bn BSF and has not been seen since.

The BSF filed detailed objections to the inquiry report. Annexure 'G' to

the objections was a Confidential list of 24 names of persons handed

over or released by the 34 Bn BSF during the first week of April 1995,

when Manzoor was arrested. The BSF claimed that the list was a complete

record of all arrests by them and, as such, the witnesses who had

deposed against them in the inquiry were lying. As further proof of

their 'clean' record, the BSF also annexed copies of Clearance Certificates

issued to the 34 battalion by the police, before it left the valley.169

Lastly, the BSF levelled accusations against the Inquiry Judge, calling

him biased, prejudiced and ..(actuated by) .. writional (sic) considerations.

170

Based on the findings in the inquiry report, in February 2003 Manzoor's

family requested the Court to grant them interim compensation. The

Court asked the respondents for their stand on this request but nothing

happened thereafter. In November 2003 the Court again asked the respondents

to declare their stand on the issue of compensation. In

January 2004 Manzoor's family filed a formal request, by way of an

application, for grant of compensation. The extremely straitened finan-

167 Manzoor, a bus conductor was pulled out of his bus at one of the busiest

crossings in Srinagar, bundled into a BSF vehicle and driven away. The

driver of the bus chased the BSF vehicle for some distance but then lost

track of it.

168 The family's complaint was registered DD No. 4, PS Rajbagh, dated 6 April

1995. Later, on the orders of the High Court, the police registered an FIR

against the 34 Bn BSF.

169 See the case of Abdul Rashid Wani (97/8) for similar certificates produced by

the Army.

170 The High Court took umbrage at these remarks, calling them contumacious.

After an initial show of truculence, the BSF withdrew these remarks

and submitted an unconditional apology.

64

cial status of the family was pleaded as an additional ground. The case

was still pending in March 2004.

Mushtaq Ahmad Dar (99/9) was arrested from his house on 13 April

1997 by the 20 Grenadiers.171 Initially, the officers at the 20 Grenadiers

camp admitted that Mushtaq Dar was in their custody and assured that

he would be released soon. However, after some time the Army started

denying his detention. In response to the petition filed on his behalf the

20 Grenadiers denied that they had carried out any operation as alleged,

and denied that Mushtaq was arrested or tortured. The State government

denied his arrest and stated that he had not been received in any

JIC manned by the CID of the State. The 20 Grenadiers participated

intermittently in the inquiry proceedings. Based on the eyewitness

testimony produced on behalf of Mushtaq Dar, the Inquiry Judge held

that he had been lifted by the 20 Grenadiers.172 The petition was still

pending in December 2003.173

171 He was beaten in the presence of his family and, interrogated in one of the

rooms of the house while the family members were locked in another room.

Thereafter, he was taken away.

172 In a completely unnecessary foray, the inquiry report also declared that the

names of the personnel responsible could not be ascertained.

173 In objections to the inquiry report the 20 Grenadiers reiterated their reply

to the petition.

65

174 The army asserted that Home Department of J&K notification No. 90

dated 2.4.1990, issued in exercise of powers under section 39 of the J&K

CrPC, read with provisions of "Public Act, Samvat, 1983" (1927 AD),

vested a BSF officer, not below the rank of sub inspector and, a commissioned

officer or a non commissioned officer of the army in command of his

soldiers, with the powers of a police officer, while aiding the civil authorities

in the maintenance of law and order and internal security. The

notification stated that these powers shall be exercisable in the area of

jurisdiction of the competent authority who has called upon the services of

Border Security Force or the Army for aid of civil power. Interestingly,

despite searching high and low, we were not able to find any law known as

the "Public Act, Samvat, 1983", on the statute book of the State of Jammu

and Kashmir.

175 Section 7 of the J&K AFSPA stipulates that no prosecution, suit or other

legal proceeding shall be instituted except with the previous sanction of the

central government, against any person in respect of anything done or

purported to be done in the exercise of the powers conferred by this Act.

However, it is universally interpreted to exclude petitions for a writ of

habeas corpus from its purview.

The Impossibility of Justice - II

I. Where 'Guilt' Was Not Established

A. Inquiry Verdict of 'Not Guilty'

There are five cases in this category, of which the cases of Khizir Bhat

(95/2) and Alam Sher (95/9) have been discussed above. The remaining

cases are discussed below.

In response to the petition filed on behalf of 25 year old Abdul Rouf

Shah (90/2), a patwari (Land Records Officer), and his elder brother, a

secondary school teacher, the army asserted that its officers and soldiers

were protected by provisions of both, the J&K CrPC and the J&K

AFSPA.174 The Court was asked to appreciate that under the AFSPA the

Army enjoyed the power of pre-emptive arrest. Invoking section 7 of

the J&K AFSPA, the army claimed that the High Court did not have any

power or jurisdiction to entertain even a habeas corpus petition against

it, without ascertaining whether Rouf's family had obtained the government's

permission to institute it.175 It demanded that in case Rouf's

family was not able to show that they had obtained the prior sanction

of the central government before filing the habeas corpus petition on

66

his behalf, it should be dismissed: being against the spirit of the ibid

section of the said (Act).176

While admitting Rouf's arrest the reply claimed he was released two

days after his arrest as he had promised to help the army get information

about anti national elements. The reply admitted that his brother was

kept as security for Rouf's return but when it became clear that he had

fled, his brother was released. The inquiry report, dated November

1992, makes clear the discomfiture of the inquiry officer.177 Despite considerable

material on record, establishing gross illegalities by the army

and rendering their story of release highly suspect, the inquiry officer

felt compelled to couch his conclusion in ambiguity.178 Without stating

so, his report conveyed the impression that Rouf's family accepts that

he was released by the army.179

Even while denying complicity in his disappearance, the army stated

that it had ordered a Court of Inquiry (COI) into his disappearance. The

High Court waited for over eight years for the outcome of the COI before

suddenly dismissing the petition, in August 2001, on the ground that

the inquiry report had not found the army responsible for his disappearance.

180

Latief Khan (91/1) was an ex-serviceman. He had joined the army at the

age of 16, retiring after serving for more than 20 years. He was arrested

from his house on 14 July 1990 by men from the 46 Bn CRPF, led by

Assistant Commandant, Pandey and, the local police led by the DSP,

Uri, SM Sahai. Latief's cousin, Bashir Khan, and an 80 old employee

Abdul Samad Saraf, were also arrested along with him. Four days later

176 The reply ended by submitting that Rouf's father had lodged the petition to

malign and defame the defence forces in order to conceal true facts about

his son having gone underground or crossed over to Pakistan.

177 This inquiry was held by the DM, Kupwara.

178 Among other facts, he ignored the implication of an anonymous letter,

received about a year after Rouf's disappearance, stating that Rouf's body

had been thrown into the Jhelum by the police. The DM notes in his report

that he forwarded the letter to the SP, Kupwara for necessary action.

179 What the family had said was that the Army had told them about five days

after his arrest that Rouf had escaped.

180 The order was passed in absence of representation on behalf of Rouf Shah.

67

the body of Bashir was washed up along the banks of the Jhelum.181

Abdul Saraf was released after 17 days.182 Latief's family chased every

rumour about his whereabouts. On many occasions, they were issued

interview slips by the police and, other state government officials, allowing

a meeting with Latief, on the basis of information that he was

being held in a particular place. However, he could never be traced.183

The CRPF did not file any response to the petition on behalf of Latief.

Two years after the petition was filed the state government filed a reply

denying Latief's arrest and/ or custody.184 According to the Inquiry Judge

Latief's family could not establish their case despite being given number

of opportunities to adduce evidence. In view of this, the inquiry report,

which took nine years to write, stated that the allegations levelled in the

petition are not established. Latief's family's version of the inquiry proceedings

was completely different. His brother stated that in response to

summons he had appeared before the Inquiry Judge in December 2002, on

which date the judge was on leave. He was told by the staff that he would

be summoned again but never received a summons after that.185 The

petition was dismissed by the High Court on the basis of the inquiry

report, in the absence of a representative on behalf of Latief.

In Abdul Hamid Dar's (96/2) case the army (28 RR) admitted his arrest

but claimed that after he was found to be white (he) was handed over to

the police station Gantmulla, along with several others.186 The consta-

181 According to Umer Khan, Latief's brother, in those days about 10 to 15

bodies used to float down the river every day.

182 After his release Abdul Saraf narrated that Bashir Khan had died in his arms

as a result of brutal torture of. Latief was kept separate but Abdul Samad

heard his voice.

183 See the case of Farooq Bhat (99/4) above for a brief discussion about interview

slips.

184 In the reply, the Additional Chief Secretary, Jammu and Kashmir, Mehmoodur-

Rehman, stated on oath that orders (permission slips) allowing meetings

with detainees in custody were passed in routine without ascertaining whether

the accused was in custody or not.

185 See the cases of Ayub Bhat (94/1) and Abdul Ahad Malik (97/14) for similar

discrepancy between the version of the inquiry reports and of the families.

186 Hamid Dar was arrested from his village along with several others, who were all

released. His father, wife and, a friend from the village saw him in custody about

10 days after his arrest. His face was swollen and almost unrecognisable and,

they thought he was dead and, his body had been propped up by the soldiers.

However, they were assured he was alive and would recover in a few days.

68

ble who had, allegedly, 'received' Hamid's custody testified before the

Inquiry Judge that the army had handed over four persons but, in addition,

forcibly took his signature on Hamid Dar's release certificate.187

The inquiry report disbelieved the police version. It held that the constable

should have immediately complained about the army's duplicity

to his senior officers. In the face of his failure to do so it concluded that

Abdul Hamid was handed over by the 28 RR to the PS, Sheeri and that

he disappeared thereafter.188

The SP, Baramulla filed objections to the inquiry report, citing the testimony

before the Inquiry Judge that categorically established that Hamid

Dar was seriously injured (or worse) in the custody of the 28 RR, camp

Sheeri; and that he was taken back by the army while the other detainees

were released. The High Court held that it was a disputed fact whether

Hamid Dar was released with proper receipt.189 Noting that the police

investigation in the FIR pertaining to Hamid's disappearance was still

pending it directed the SSP, Baramulla to appoint an investigating officer,

not below the rank of a DSP, to complete the inquiry within four

months, and file the final report before the CJM of the district. Needless

to say, nothing was done.

B. Where Inquiry Was Ordered But Not Held

Of the four cases in this category, two have been discussed above.190

The other two are briefly discussed below.

187 Hamid's co-detainees testified that he was subjected to severe torture in

custody, being beaten continuously for three days by a Naik called Dhanpat,

till he lost consciousness. They also testified that he was not handed over

to the police, as claimed.

188 A surrendered militant, Hamid had spent over two and a half years in jail, as

a PSA detainee. Upon his release he cut off all links with militancy and, also

refused to work for the army and the ikhwainis. His family believes that he

was arrested for this reason. Hamid's father was subjected to intense pressure

to persuade him to withdraw the petition, subjected to frequent illegal

arrests and, offered rupees one lakh.

189 Apart from being atrocious English the language that the Court's orders are

couched in is indicative of its mindset.

190 See cases of Nazir Sofi (93/3) and Yusuf Wani (94/3)

69

Twenty one year old Abdul Hamid Beig (90/5) was arrested by the

CRPF, and the BSF, posted at the bunker at Dal Gate, Srinagar on 2

December 1990. Since the family could not discover his whereabouts,

10 days later, a petition was filed on his behalf. Shortly after the petition

was filed, Abdul Hamid was released. He was subjected to severe torture

during his detention and, has been permanently incapacitated as a

result of it. Hamid's family lost interest in the petition once he was

released. However, in February 2004 the High Court was still waiting for

the report of inquiry ordered by it into Hamid's Beig's disappearance, in

August 1993.

Mohammad Amin Bhat (95/7) was arrested in May 1995 during a crackdown

on his village. Since his family could not learn of his whereabouts,

in August 1995 they filed a petition before the High Court.191

Meanwhile, his unacknowledged detention was legalised and Amin Bhat

was booked in a case under the TADA, and the Arms Act. An order of

preventive detention under the PSA was also passed against him. He

remained in jail till October 1996 when he was bailed out by the Court, in

the TADA case against him.

The State government's reply, filed in January 1996, when Amin

Bhat was still in jail, stated that as per report of all JIC's of CIK

Srinagar no such person stands arrested/ Booked and, prayed

that the petition be dismissed.192 In June 1996 the Court ordered the

DJ, Budgam to inquire into Amin Bhat's disappearance. For five

and a half years thereafter the Court continued to await the inquiry

report. Numerous orders were passed, directing that reminders to

be sent to the Inquiry Judge to expedite the inquiry.193 Finally, in

December 2001 the Inquiry Judge wrote back to say that no inquiry

was pending before him. In April 2002, the Court took note

of this communication and, in view of the fact that no one had appeared

on behalf of the petitioner for several years the disposed of

191 The petition was filed through someone they knew, who worked there.

They never went to the Court themselves.

192 The statement was technically correct, as he was never held in a JIC run by

the CIK. It illustrates the meaninglessness of such responses.

193 In July 1998, the Court asked for an explanation from its staff when it

learnt that reminders had not been sent despite orders to do so.

70

the case with the remark nothing remains to be done in this case by

this court.194

C. Where Inquiry Was 'Closed'

In as many as 13 cases the inquiry proceedings were prematurely terminated.

Nine of these cases were withdrawn by the petitioners. The remaining

four were closed by the Inquiry Judge. The reasons for withdrawing

the case varied from release of the detainee, to grant of exgratia

relief (and relief under SRO 43) by the state government, to the

fact that the detainee had been killed since his release. In as many as

five of the nine cases withdrawn by the petitioners, the detainees have

disappeared.195 Three of the four persons whose cases were closed by

the Inquiry Judge are still living; one has disappeared. Be that as it may,

the proceedings in all the cases are consistent in exposing the impossibility

of justice in Kashmir.

The cases of Mohammad Yusuf Wahloo (91/8), Mohammad Aslam Mir

(93/2), and Qazi Khurshid Ahmad Malkar (94/4) have been discussed

above. The remaining cases are discussed below.

Six weeks after notice was issued on Mohammad Ayub Dar's (91/5)

petition the state government was directed to file a reply within two

weeks. However, the only response was an oral statement, eight months

later, that the detenue is not traceable with the respondents. The Court

directed the state government to file an affidavit in support of this oral

statement within two weeks. This direction was never obeyed. In February

1995 the Court ordered an inquiry into Ayub Dar's disappearance.

During the course of the inquiry the state government corrected itself

and, informed the inquiry court that Ayub Dar was confined in Tihar

jail, Delhi. Needless to add, once Ayub Dar's family had learnt of his

194 According to his family, Amin Bhat was forced to resume arms because of

extreme harassment by the STF. He was killed in an encounter in January

2002, five years after his release.

195 Two of the remaining four were killed after their release. The remaining

two were still alive when we visited their homes.

71

whereabouts (from other sources) they stopped pursuing the case before

the Court.196

Two weeks after Syed Amjad Ali Byhaqi's (92/3) arrest, during a crackdown

by the Garhwal Regiment in November 1992, his family filed a

petition in the High Court. Since both the army and the state government

denied his arrest/ custody the High Court ordered an inquiry into

his disappearance. In the meanwhile Byhaqi had been released, after

some months of illegal custody. The case remained pending before the

High Court for nearly nine years.197

Eighteen year old Mohammad Ayub Bhat (94/1), a carpet weaver, was

arrested on 25 June 1992 by the 10 Garhwal during a crackdown on his

locality. Four other boys were also arrested, all of whom were released

after three days.198 The army did not file any response to the petition

filed on Ayub's behalf. The State government too denied his arrest and

stated that Ayub was un-traced in the police records of CIK as on

20.x.95. The inquiry ordered by the Court into his disappearance remained

pending till October 2003. In the meanwhile, due to their deteriorating

financial situation, the family applied to the state government for

relief. Once they had received the benefits applied for, they felt unjustified

in pursuing the case any further, and informed the Inquiry Judge

accordingly.199 On the basis of their statement, the inquiry proceedings

were closed. The High Court also disposed of the petition in terms of

the report.

196 Since Ayub Dar was charged with involvement in a high profile case in

Delhi, it is impossible that the state government did not become aware of

his arrest immediately after the event. Yet it took the state government

five years to ascertain his whereabouts. The High Court took another five

years after that to dispose of the petition.

197 After our visit to his home, he instructed his lawyer to appear in court on

the next date of hearing and withdraw the case.

198 After their release, the boys reported that they were all tortured during

interrogation. Ayub was subjected to more severe torture than the others.

After sometime, he was separated from them and taken away to an unknown

place.

199 The family received ex-gratia compensation of rupees one lakh, plus a job

for Ayub's younger brother, under SRO 43.

72

The 'gesture' of the family in withdrawing the petition is a poignant

pointer to the reality of justice in Kashmir. The average Kashmiri has no

hope whatsoever of redress, except for the ex-gratia compensation and

a job for a family member, which are both contingent upon the DLSC

certifying that the disappeared person had no connection with militancy.

Four months after Manzoor Ahmad Wani's (94/7) arrest his father filed

a petition before the High Court.200 The petition pleaded that though

Manzoor was being held in the BSF camp at Rajpora the officials there

had denied his custody. It prayed that Manzoor be shifted to the JIC at

Sonwar, or to a police lock up, under a proper order of remand from the

competent court. A couple of months after the petition was filed the BSF

(unofficially) acknowledged Manzoor's custody and allowed his family

to meet him. After this the family stopped pursuing the case before the

High Court. Manzoor's illegal detention was converted into detention

under the PSA. He was released from jail after the period of detention

was over, in November 1995.

Meanwhile, the State government filed a reply in December 1995. The

reply, asserted that no such person stands arrested with the State. The

BSF did not file any reply. Since his custody was disputed the Court

ordered the CJM, Budgam to conduct an inquiry. The inquiry report,

dated July 1996, contained the correct facts regarding Manzoor, based

on statements by Manzoor and his father.201 However, this report never

reached the High Court's case file and the Court continued to send reminders

to the CJM, Budgam asking him to expedite the inquiry.202 Finally,

in response to a telephonic request from the Court's registrar, in

March 2003 the CJM sent a copy of the report to the High Court. Without

inquiring into the reasons why the report took nearly seven years to

200 He was a militant. He and four others were cornered by the security forces

on 3 June 1994. Manzoor and two of the others, surrendered. The two who

did not surrender were killed in the ensuing encounter.

201 This is one of the rare cases – albeit an empty one – in which the inquiry was

completed within the time allotted to it.

202 Missing inquiry reports are a fairly frequent occurrence. See other cases,

including one where a bizarre exchange of letters between the High Court

and the office of the Inquiry Judge continued for several years for this

reason.

73

reach it, the Court dismissed the writ petition for non-prosecution, as

the petitioner has not come to prosecute this petition.203

By the time he died, 23 year old Ghulam Mustafa Khan (96/1) had

become a dreaded militant. He started his career of militancy by challenging

soldiers who made lewd remarks and comments about the local

women. This resulted in continuous harassment of his family, particularly

his mother and sisters. On one occasion Mustafa Khan was threatened

and, arrested. He was held at the RR camp nearby. Fearing for his

life the family filed a petition in the High Court. At the same time they

raised rupees one lakh fifty thousand to pay off his captors. Mustafa

was thus released. After his release the family forgot about the petition,

which continued in the High Court; carrying on till it was dismissed, a

year after Mustafa's death.204

Farooq Ahmad Shalla's (96/3) case is connected to the cases of Javaid

Ahmad Bhat (96/5) and, Tariq Ahmad Rather (96/6), which have been

discussed above. All three were part of a group of 27 boys arrested by

the 22 RR, from the Machil Sector, district Kupwara, on 26 June 1995,

while trying to cross over into the POK.205 The arrest was reported in the

press, and over the television and the radio, stating the numbers arrested.

Thereafter, 11 of these boys were disappeared: Farooq, Javed

and Tariq among them. The official version of arrest was changed accordingly.

The facts about the entire incident were revealed by one

Altaf Hafiz, one of the 27 boys who were arrested on that day.206

Meanwhile, on hearing the radio report the families thought that it pertained

to their children and rushed to Kupwara. At PS, Kupwara, they

were shown a list of 16 boys stated to having been arrested by the army.

Altaf's name was listed as an arrestee but Farooq, Javed and Tariq did

203 Either the Judge barely registered the contents of the report or, equally

likely, he did not care.

204 Mustafa Khan was a legend. Over 100,000 people gathered at his village for

his funeral ceremonies.

205 The story behind their attempted cross-over reveals some of the sordid

underbelly of militancy in Kashmir. Farooq and Javed helped in the family's

carpet weaving business while Tariq worked as a bus conductor.

206 That the security forces are willing to release co-detainees is more proof of

the extraordinary levels of impunity that prevail in Kashmir.

74

not figure in it. Javed and Tariq's fathers lodged a report regarding them

at the police station, saying that their sons were also part of the group of

boys who were arrested and, therefore, their names should have been

on that list. Farooq's father filed a report with the PS Soura.207

The army did not file any reply to the petition on behalf of Farooq. The

inquiry in his case was never completed as, disheartened by the pace of

the proceedings, his family stopped attending them. Based on a report

about the 'non-cooperation' of Farooq's family, the petition was dismissed

by the Court for non-prosecution.

Abdul Ahad Malik (97/14) was arrested during the night of 24 May 1997

by 8 Rajputana Rifles from his aunt's house. Many of the soldiers had

cloth masks on their face but Abdul Ahad's brother recognized some of

them, including their leader, Major Malik, since they were from the Camp

at Kriri, near their village. The next morning Major Malik denied Abdul

Ahad's custody. For the next 10 days he was seen inside the camp by

villagers whose houses were near it. Thereafter he disappeared.

Before the High Court, the army denied his arrest. The state government's

reply acknowledged that a report regarding Abdul Ahad's arrest

had been filed with the police but said that the army had refused to

cooperate with the police investigation, and consequently, the case was

closed as untraced.208 The inquiry report sent in January 2003 stated

that Abdul Ahad's wife had turned up before this court and submitted

an application in writing to the effect that since she is not aware … as

to which branch of the army had arrested her husband, she is not in a

position to adduce any evidence for establishment of facts or to depose

207 There was a history in Farooq's case. He had been arrested as a 13 year old

for possession of a single cartridge, which he had picked up from the street.

He was severely tortured in custody. Farooq had still not recovered fully

from this trauma when he was press-ganged into joining the group of young

recruits into the movement. Farooq's father attributes his release from the

earlier incarceration solely to the kindness of Mr. Wajahat Habibullah, then

Divisional Commissioner of Kashmir.

208 The reply stated that Major Malik and his unit had since been transferred to

Delhi and, the Additional Director General (Discipline and Vigilance) at the

Army Headquarters in Delhi had not responded to the SSP, Baramulla's request

to for access to the officer.

75

her statement. She has further expressed that she is not interested to

represent the enquiry or the writ petition … (and) has prayed to drop

the proceedings.209

The statement in the inquiry report was at direct variance with the reply

filed by the state government wherein it was stated that as per the report

lodged by the family with the police, and the subsequent investigation

by the police, Abdul Ahad was arrested by Major Malik of the 8 Raj

Rifle. The family also contradicted the inquiry report. They said that

they were summoned only once by the Inquiry Judge, in October 2002.

On that date the case was adjourned without any proceedings and they

were not summoned again. The family categorically stated that there

were several witnesses to Abdul Ahad's arrest, and all of them were

willing to testify. As such there was no question of withdrawing from

the proceedings.210 The High Court disposed of the petition, following

the inquiry report. It is evident that the Court did not peruse the file

before doing so. Nor did it care to hear the family before disposing of

the case.

Bashir Ahmad Wani (98/3) and Bashir Ahmad Bhat (98/8) were both

arrested by the SHO, PS Pampore, one Gindral, in November 1997. In

the petition filed on behalf of Bashir Bhat, the standing counsel for the

state government filed a reply stating that Bashir Bhat and Bashir Wani

were called to the SOG, Lethpora camp, through PS Pampore, on 23

November 1997 and, were released on the same day in front of two

witnesses from the locality. It was stated that these persons had witnessed

the bonds, allegedly also signed by the two Bashirs, at the time

of their, alleged, release. The reply said that the statements of the witnesses

were also recorded by the Judicial Magistrate, Pampore.211 Finally,

the reply alleged that it was likely that unknown to their families

the two men may have joined the militants or crossed over to POK or

209 We did not find any such document in the record of the inquiry proceedings.

210 See an identical contradiction between the inquiry report and the family's

version in the case of Latief Khan (91/1), which also pertained to the DJ,

Baramulla, for the same period (i.e. 2002).

211 The reply said nothing about why these statements were recorded. The

families of the two Bashirs informed us that these two supposed, witnesses

were, in fact, touts for SHO, Gindral.

76

fled to Nepal and the "forces" are being "unnecessarily" blamed for

their disappearance.212

In response to the petition filed on his behalf, the counsel for the state

government orally stated that Bashir Wani was released from custody

on 23 November 1997 and, was no longer in the custody of the State

and its officials. The Single Judge hearing this petition dismissed the

case on the basis of this statement. Bashir Wani's family appealed against

the dismissal, and a Division Bench of the Court accepted the appeal,

set aside the impugned order, and sent the case back to the Single Judge

for further hearing.

Meanwhile, the two families had filed complaints before the SHRC. By

the time (in August 2001) the High Court ordered an inquiry into Bashir

Wani's disappearance the SHRC had already recommended that a case

be registered regarding their disappearance and that compensation of

rupees one lakh each be paid to the next of kin of the two families.

Since the state government did not comply with this recommendation,

the families filed a writ petition before the High Court for its enforcement.

The High Court endorsed the decision of the SHRC in February

2002, and directed the State government to implement it.213

By then the proceedings in the inquiry ordered by the High Court had

commenced. Bashir Wani's family produced an eyewitness to the detention

and torture of both Bashir Wani and Bashir Bhat. On learning of

this testimony the SHO, Gindral, arrested the witness and tortured him;

as a punishment for daring to speak against him in court.214 Frightened

by this, the families of two Bashirs decided to withdraw the habeas corpus

petitions filed by them. Thus, despite there being eyewitness testi-

212 According to Bashir Bhat's family, apart from all other reasons for disbelieving

the State's version of events, it was impossible for Bashir to have

joined the militants or, otherwise fled home because of a severe physical

handicap, which allowed him to walk, only with difficulty. The unlikelihood

of Bashir Wani fleeing was established by the fact that he was due to be

married a few days after the date of his arrest.

213 Under the Protection of Human Rights Act 1993, and the J&K Protection

of Human Rights Act 1997, the NHRC and, the various SHRCs established

in the States are recommendatory bodies, unlike the High Court, whose

orders are binding and, enforceable.

214 The witness was released after nearly six weeks of illegal detention.

77

mony on record that contradicted the stand of the police, the families of

the two Bashirs told the Inquiry Judge that they did not want to pursue

the case any further. The report submitted by the Inquiry Judge to the

High Court makes it obvious that he thought their decision to withdraw

the case was in their best interests.

Abdul Majid Guroo (99/2) was arrested from his house by the STF on 22

December 1998.215 His friend Mohammad Ashraf Pir, a shopkeeper from

Sopore, who was visiting him at that time, was also arrested.216 Failing to

secure his release Majid's family filed a habeas corpus petition on his

behalf. In response to this petition the SSP, Baramulla filed a reply

stating that the matter of his arrest by the police had been enquired into,

and investigation was underway in the FIR registered thereafter. The

High Court ordered an independent inquiry into Abdul Majid's disappearance.

The inquiry report stated that the petitioners filed an application

praying that the proceedings be dropped. In view of this fact the

inquiry was closed. The case was disposed of by the High Court on the

basis of this report.217

D. Where Inquiry Was 'Pending'

There are four cases in this category. Three cases, Farooq Ahmad Najar

(92/4), Dr. Ghulam Hasan Sofi (94/5), and Bashir Ahmad Lone (94/2),

have been discussed above. The fourth case falls in this category as

well as the next one.

Ghulam Qadir Sheikh (2000/172) was arrested from his house on 8

March 2000 by the 14 Rajput, based at Panzgam, Kupwara.218 The 14

Rajput denied his arrest.219 It was stated that the 14 Rajput had not

215 The arresting party was accompanied by Nazir Ahmed Dar @ Kundru and Fateh

Mohammad Gazi. Both persons were SPOs, attached to the STF at Kralhar.

216 He was released after one week.

217 The family informed us that they could not pursue the petition due to

severe financial constraints.

218 For the first few days after his arrest his family saw Ghulam Qadir almost

everyday at the Army camp. Thereafter he was moved to some other place

and, was never seen again.

219 Two petitions were filed in this case, both on the same day. One was filed by

Ghulam Qadir's wife and the other by his mother. The arrest was denied in

reply to both petitions. We will first discuss the petition filed by his wife.

78

conducted any operation in Ghulam Qadir's village on the date of his

alleged arrest. It was also claimed that the family had no idea who had

arrested Ghulam Qadir and, the accusation against the 14 Rajput was

malafide, with the intention of maligning the image of the unit and of the

army.220

The High Court disposed of the petition on the basis of this reply. While

doing so it directed the SSP Kupwara to ensure that the concerned SHO

should complete the investigation in the complaint already lodged by

the family within four months. Since the police failed to complete the

investigation within the time stipulated by the High Court Ghulam Qadir's

family filed a contempt petition against the SSP Kupwara, alleging noncompliance

with the Court's direction in this regard. In response, in a

detailed report on its investigation, the police stated that during a crackdown

on 9 March 2000 the 14 Rajput took some documents and photos

from the house of Ghulam Qadir, leading the people of the locality to

think that he had been arrested.221 However, the army had denied his

arrest. Further, the records of the 1/4 GR did not show their involvement

in this crackdown or in the arrest of Ghulam Qadir. It was also stated that

the persons who had arrested Ghulam Qadir could not be identified as

they were masked and wearing army type clothing, which is also used

by the militants to conceal their identity. Thus, it was stated that the

SHO, PS, Trehgam, found he was unable to fix the liability for Ghulam

Qadir's disappearance on the 14 RR (Rajput Regiment) and, the police

had closed the case as untraced.

The final order of the Court in the contempt petition is an example of

the propensity to shift the blame/ responsibility for a lapse on to the

most hapless of the parties before it. The SSP, Kupwara, who was the

220 In a complaint before the SHRC, Ghulam Qadir's brother had stated that the

4 GR, under the 14 Rajput had arrested Ghulam Qadir. The 14 Rajput reply

before the High Court denied that the 4 GR was under the 14 Rajput in any

manner. It stated that 14 Rajput was one of the six units based in the

Panzgam Garrison, all of whom had a separate chain of command. Further,

that the Garrison commander exercised command over the units stationed

there only for the purposes of the Garrison's security. He did not exercise

any operational control over the units stationed there. (See the section in

the next chapter re the 'Problem of Identification' for more on this issue.)

221 A patently absurd statement.

79

alleged contemnor, filed an affidavit stating that the Court's order (directing

him to complete the investigation within four months) was not

served upon him. Since the order in question stated that this petition is

disposed of with the direction to the SSP Kupwara to … it is patent that

a letter should have been issued to the SSP, Kupwara from the Court's

registry, informing him of the order. However, this was not done. Instead

of pulling up, or calling for an explanation from, the Court's staff

the Judge thought it fit to say the order has not been communicated to

him by the registry because there was no such direction from the court

to that effect, obviously it was incumbent upon the petitioner to bring

the judgement to the notice of the SSP. Moreso (sic), the S.S.P. was not

a party to the writ petition. …Contempt petition is dismissed.

The second petition followed a parallel trajectory for some time but

then the Court (presided over by the same judge who had disposed of

the other petition) directed an inquiry into Ghulam Qadir's disappearance.

In February 2004 the Court extended the time for completion of the

inquiry till July 2004.

II. Where Inquiry Was Not Ordered

No inquiry was ordered in 23 cases (over 27%), with as many as 13 of

these being dismissed by the Court. Of the remaining, five were disposed

of, one was withdrawn, two were pending and, in one case we

could not ascertain the facts. Six cases from this category, Farooq Ahmad

Bhat (91/11), Nazir Ahmad Malik and Mohammad Shafi Shah (97/1),

Mohammad Shafi Dar (97/10), Bashir Ahmad Bhat (98/8), Farooq

Ahmad Bhat (99/4), and Ghulam Qadir Sheikh (2000/172) have been discussed

elsewhere in this paper. The remaining cases are discussed

below.

Unlike in the cases discussed above, most of the cases discussed here

lasted in court for relatively short periods. Patently, the less time a case

remains pending before the Court the less scope for errors and absurdities.

In such cases, I have used the opportunity presented by the paucity

of court records to discuss other aspects of the impossibility of

justice in Kashmir, drawing upon the stories of arrest and the personal

circumstances of the arrested/ disappeared for this purpose. However,

80

there are also a few exceptions to this rule. Some cases lasted a decade

or more before being disposed of/ dismissed. The first case discussed

below, from 1990, was still pending in June 2004.

Gauhar Amin Bahadur (90/1) was a militant belonging to JKLF.222 Initially

he was kept in unacknowledged detention. Subsequently, he was

booked under TADA and, also, detained under the PSA. He was released

in 1992, after completion of his detention period under the PSA.223

After his release Gauhar married and settled down, starting a business

in ready made garments.

A petition was filed by his mother at a point of time when his whereabouts

were not known.224 At the inception, the Court asked the state government

to disclose the law and authority justifying the arrests, within 10

days. Since the state government did not file a response, a month later the

court ordered the detainees to be produced in court. They were not

produced. Another month later the government lawyer explained the noncompliance

of the order for production of the detainees by stating that he

was not present in court when the order was passed.225

Thereafter, the state government filed objections but they pertained to a

detainee who was not concerned with this case.226 The Court, again,

ordered that the detainees be produced before it, within one week. Since

this order was also not complied with the Court sent a communication

to the Chief Secretary/ Law Secretary, J&K for implementation of its

order. Two months later, since this order was also not complied with, the

Court sent a copy of its order to the Additional Chief Secretary (Home),

222 He was a close associate of Hamid Sheikh, Ishfaq Majid Wani, Iqbal Gundroo

and other notables of the JKLF.

223 His father used his contacts to persuade the Governor to release Gauhar

Amin in 1992. After his release, his family lost interest in the petition.

Thus, this is also one of the 'empty' cases.

2 2 4 The petition was filed on behalf of Gauhar Amin and nine others, arrested

on different dates in 1989 and 1990, alleging that the detainees

had been tortured in custody and had been denied medical treatment. It

sought information about their whereabouts, their production in court

and, various other reliefs.

225 The government lawyer was absent but he had sent a proxy to represent

him and, the Court's order was passed in the proxy's presence.

226 On it being pointed out to him, the AAG accepted his mistake.

81

to take necessary steps. Yet another month later, without complying

with the direction to produce the detainees, the State government filed

a reply, 'justifying' the detention of three of the 10 detainees for whom

the petition had been moved.

Not satisfied with this paltry response the Court continued to issue letters

and directions to the state government, asking for implementation of its

orders. A little over a year after the petition was filed two detainees were

produced in court.227 However, the Court was still not informed of the

offence for which they were arrested. Nor were the records produced.

Finally, 14 months after it was ordered to do so, the state government filed

a response regarding some of the detainees in their custody.228 Thereafter,

the case went into a limbo because of an appeal (Letters Patent Appeal)

filed by the state government against some of the orders passed by the

Single Judge in the habeas corpus petition.229 The petition was still pending

in December 2003, over thirteen years after it was filed.230

Zafarullah Beig (91/7), a gazetted state government employee, was

arrested by the army from his office, in August 1991. A petition was filed

on his behalf within a few days of his arrest. It was claimed therein that

Beig was arrested because he had complained against the CO of the 6/8

Unit, Bandi, Colonel WJB Sturgeon.231 Beig was released 27 days after

his arrest.232 The petition, however, remained pending because Beig

227 Some of the others had been released, while the custody of some was denied.

228 The reply challenged the locus standi of Gauhar Amin's mother to file a

petition on behalf of all the detainees.

229 The Division Bench hearing the appeal stayed the impugned orders, pending

disposal of the appeal.

230 Gauhar Amin was re-arrested on 8 April 1993, from his wife's parents'

house, during a crackdown. After being identified as a former militant, he

was taken away by 108 Bn of BSF along with one other person. Both were

killed on the same day. The BSF claimed that he was killed in cross firing.

231 The complaint alleged that Colonel Sturgeon was terrorizing villagers and

extorting money from them by implicating them in false cases. Copies of

the complaint were sent to various authorities, including the Army Chief

and the Prime Minister of India.

232 Admitting his arrest, the army replied alleging that Beig was working as a

guide for the militants, active in inciting local people against the army,

recruiting people for being sent for training as militants, collecting money

in support of militancy and, getting army informers killed. The army's

reply also stated that an inquiry had found the charges laid by Beig against

Colonel Sturgeon, baseless.

82

sought compensation for his illegal detention for 27 days by the army.

The army took 10 years to explain the delay in handing over Beig to the

police. Ultimately, they filed a reply stating that Beig was arrested in an

area close to the border, and he could not be transported to the police

station at Uri because of heavy shelling from across the border. The

High Court accepted the explanation of the army and disposed of the

case in 2001, dismissing Beig's claim for compensation.233 This reply

said nothing more than what had been stated by the army in its original

reply, filed several years earlier.

Hamidullah Mir (97/2) was arrested on 4 September 1994 by the security

forces and held in illegal detention for over a year. In December

1995 an order under the PSA was passed against him, detaining him for

two years. In February 1997, his father filed a petition in the High Court

on the assumption that the period of detention had expired in December

1996 and that despite this he had not been released.234 Thus, the petition

erroneously argued that Hamidullah was being held in custody despite

the expiry of his period of detention. No reply was filed to the petition

till November 2000, when the petition was disposed of on the ground

that it had been pending for longer than the maximum period of detention

permissible under the PSA.235

Twenty three year old Manzoor Ahmad Dar (98/2) and 20 year old Bilal

Ahmed Sheikh (2003/9), neighbours and friends, were arrested together

on 30 March 1997 by the 20 Grenadiers.236 They were picked up at the

Tengpora by-pass crossing, near a picket manned by the 179 Bn BSF.

Their arrest was witnessed by Manzoor's father and aunt, who were also

233 This is an exceptional case for the apparent fearlessness of the detainee,

and the fact that the army has allowed him to get away with it for so long.

Not only did Beig challenge his illegal detention by the army, he forced

them to explain why they took more than the maximum permissible time

of twenty four hours to hand him over to the police. While this petition was

pending, Beig was again arrested in August 1995. A second petition was filed,

which was withdrawn after he was released.

234 In fact, the detention period was to expire in December 1997.

235 The counsel for the petitioner did not appear during the hearings of the

case; probably because Hamidullah Mir's family lost interest in the case

once he was released.

236 They were walking home together after finishing the day's work.

83

walking home, from a distance. They reached the spot of arrest just as

the army vehicles were driving off with the two boys.237

After all efforts to trace the whereabouts of Manzoor and Bilal had failed,

Manzoor's family filed a petition on his behalf. Bilal's father chose not

to file a petition as he feared that it would jeopardize the chances of his

son being released by the army. Neither the state government nor the

army filed a reply. However, in a letter to the IGP (CID), Lt. Colonel

Narendra Singh, General Staff Officer 1 (Human Rights Violation), writing

on behalf of the GOC 15 Corps, stated that Manzoor… and Bilal …

have not been apprehended by the army.

In February 1999, the petition was dismissed for non prosecution because

the petitioner's counsel was absent on one date.238 It took nine

months for the petition to be restored to hearing. Nothing happened in

the case even thereafter and in November 2000, the Court disposed of

the petition with the remark that The case amounts to one of missing

person and a report should have been lodged in the police station

concerned. In case whereabouts are still unknown petitioners are advised

to approach the police station and get a regular case registered

and investigation held into the disappearance.239

Manzoor's family had also filed a petition before the SHRC, which held

an inquiry into his disappearance. The eye witnesses to Manzoor's

arrest deposed before this inquiry. However, since the army denied his

arrest the SHRC was powerless to proceed further in the case.240 The

Chairperson of the SHRC offered to arrange for compensation but

Manzoor's father rejected this offer. The police too expressed their

helplessness in initiating action against 20 Grenadiers without evidence.

237 The arrest of these two boys is connected with the arrest of Nisar Wani (98/

1), who was arrested during a crackdown in Batamaloo. Manzoor's father

was informed by the BSF picket on the spot that Manzoor and Bilal were

arrested by the 20 Grenadiers, on their way back after the crackdown.

238 For several months prior to that date there had been no progress in the case

because of the failure of the respondents to file replies.

239 The order was passed by Justice OP Sharma, who seemed to have a preference

for such orders. He passed a virtually identical order in another petition

in our records.

240 The armed forces of the Union have been kept outside the purview of the

NHRC and the SHRCs.

84

The SHRC sent the case to the NHRC but the family had not received

any news or response from the NHRC till June 2004.

Abdul Aziz Tantray (99/1) was arrested late in the night of 10 June 1998

by a combined force of 21 RR and the CRPF, aided by the local BSF,

145 Bn, from Ahrabal, Nishat, Srinagar.241 His wife's attempts to lodge a

report regarding his arrest were rebuffed by the police.242 Of the three

forces involved in his arrest, the petition filed on his behalf only made

the 145 Bn BSF a party. In its reply, this unit denied Abdul Aziz's arrest.

243 The state government did not file any reply but an oral submission

was made on behalf of the DGP that Abdul Aziz had not been arrested

by the police. In November 2000 the High Court disposed of the

petition with a direction that the complaint regarding Abdul Aziz's arrest,

pending with the PS, Nishat be investigated.

Abdul Aziz's wife searched everywhere for him. One day she spotted

him at the Watain camp of the 21 RR, in Handwara. However, they did

not allow her to meet him. About 10 months after his arrest she and her

brother received letters from him. The letters said that he was in a very

precarious condition and pleaded with them to do something to get him

released. The letters also stated that he was being detained in the camp

of the 21 RR at Watain, Handwara.

Mushtaq Ahmad Khan (99/3) was arrested from his house around

midnight on 13 April 1997 by the 20 Grenadiers stationed at the Bemina

Boat Colony. Soldiers broke open the door of the house and, after

ascertaining the identity of all the men present, pounced upon

Mushtaq Khan and his wife. The faces of the soldiers were masked

with black cloth. Mushtaq and his wife were beaten and given elec-

241 He was a militant, initially with the JKLF, later with the Hizbul Mujahiddin

(HM). Growing increasingly disenchanted, two years before his arrest he

quit militancy to take care of his wife and six children. Though belonging

to Handwara, they lived in Srinagar, changing houses frequently, to avoid

detection. They had shifted to a new house a week before his arrest.

242 The SHO refused to register the report saying that she should lodge it in

their native place, since Abdul Aziz had been arrested by the 21 RR stationed

at Handwara.

243 The failure to make the 21 RR a respondent party to the petition is inexplicable.

Perhaps it was done out of ignorance or, on the advice of the

lawyer.

85

tric shocks. Thereafter, Mushtaq was taken away. Apart from the

family, his arrest was witnessed by the neighbours, who had gathered

at the commotion.

Initially, the officers at the 20 Grenadiers camp admitted Mushtaq's arrest

and promised that he would be released. Subsequently, they denied

his arrest. Through some middlemen the family met Naib Subedar Nazar

Mohammad of the 20 Grenadiers, who assured them that he could arrange

for Mushtaq's release. The family paid him rupees ten thousand

for this. However, neither Mushtaq was released nor the money returned.

244

Failing to secure his release, the family filed a petition on Mushtaq's

behalf. The army did not file a reply to the petition though they were

repeatedly granted time to do so, over a period of about 20 months.

The state government's reply stated that Mushtaq had not been received

in any JIC manned by the CID, and asked that the petition be

dismissed in the interests of justice. In November 2000 the High Court

disposed of the petition with a direction to the SSP Srinagar to register

a case, complete the investigation within six months and to prosecute

those if found involved in such illegal action (sic).

Abdul Rashid Ganai (99/6) was arrested from his house on 6 January

1999 by a combined force of the 131 Bn, BSF and the STF. The SHO

Handwara, Mohammad Yousuf Banda accompanied the arresting party.

Abdul Rashid was a militant who had surrendered a few months prior to

this arrest, in October 1998. He was bailed out after about three weeks

in custody.245 At the time of his release, the 21 RR also issued him an

identification certificate declaring his status as a surrendered militant

and as a source for the army.246

244 Nazar Mohammad's name as a tout also came up in other interviews with

families whose kin had been disappeared by the 20 Grenadiers.

245 Upon his surrender, he was booked in two cases under the Indian Arms Act.

246 According to his family and friends, Abdul Rashid's arrest was engineered by

the SHO, who had sworn to revenge himself upon him for the death of his

(SHO's) nephew, a policeman, who was killed in an encounter. After his

arrest, SHO Yusuf Banda put out the story that Abdul Rashid had run away

from home to rejoin the militants.

86

Failing to secure Abdul Rashid's release, his wife filed a petition on his

behalf. In response to the petition before the High Court the state

government's initial response stated that he had been released and was

no longer in custody.247 The BSF also filed an affidavit denying Abdul

Rashid's arrest. On the basis of these denials, the High Court disposed

the writ petition, with a direction to the SHO Handwara who, according

to the family, had taken part in Abdul Rashid's illegal arrest, to investigate

his disappearance.248

Some months before the High Court petition, Abdul Rashid's wife had

also filed a complaint before the SHRC. In response to the SHRC's

queries the police repeated their allegation, saying that Abdul Rashid

had rejoined the militants. The SHRC dismissed the case on the basis

of this response. Abdul Rashid's mother challenged this allegation. Reopening

the case the SHRC ordered a fresh inquiry in the matter, which

ruled out the possibility that Abdul Rashid had rejoined militancy.259

Accepting this report, the SHRC recommended that Abdul Rashid's family

be granted ex-gratia compensation of rupees one lakh.250

Sixteen year old Mohammad Qasim Khoja (99/7) was arrested by the

CRPF, accompanied by some STF policemen in civilian clothes, in November

1997.251 After about one year of illegal detention, during which

he was subjected to severe torture, an order under the PSA was passed

against him, detaining him for a further period of two years. At the end

of one year of his PSA detention, the PSA review board quashed his

detention. However, he was not released.

247 This pertained to his previous arrest, at the time of his surrender.

248 No doubt the Court was not aware of the macabre irony of its order.

249 The earlier reply to the SHRC was submitted on the basis of information

provided by SHO, Yusuf Banda. Subsequently, the SHRC ordered the DIG,

Baramulla to conduct a fresh inquiry. The DIG's report contradicted the

earlier report.

250 This case makes it clear that though the scheme for ex-gratia relief is titled

as being for 'victims of terrorist violence', the victims of state terrorism

are considered eligible for relief under it, even if they, admittedly, have a

link with militancy/ non-state terrorism.

251 According to Qasim Khoja, he joined the militants at the age of 15, enticed

by the romance of azadi and of militancy. Since he was too young to take up

arms so, they used him to deliver messages for them.

87

Aggrieved by the government's failure to release him, his family filed a

petition on his behalf. In July 2000, nearly one year later, the state

government had still not filed any response to this petition. At this, the

Court directed the state government and, the Superintendent Udhampur

Jail, Qasim's last known place of detention, to produce him in Court.

This, too, was not done. Instead, in October 2000, the counsel for the

state government stated that he had been released on bail. Qasim Khoja's

lawyer did not have any information to the contrary and so accepted this

statement at its face value. At this, the Court disposed of the petition.

However, this statement was not correct and Qasim Khoja was actually

released only in December 2001, more than two years after his detention

was quashed by the PSA review board.252

Qasim Khoja stated that about one and a half years after his arrest the

then SP, Kupwara gave a press release in an English paper that four

militants had been killed in an encounter. Qasim was named as one of

those killed. Each of them was given a fancy title. Qasim was called the

launching chief of his outfit. The others were, similarly called, a district

commander, the J&K chief and, the launching chief of the HM. Of the

four persons named only one had actually been killed. Qasim said that

he never discovered the identities of the persons whose bodies were

touted as being his and those of the other two killed with him. Qasim

claimed that it was only after he showed a copy of the newspaper carrying

this report to a judge in Udhampur that he was released.

Mehrajuddin Dar (99/19), a former militant, was arrested from his house

on 20 April 1997, by the 20 Grenadiers. The arresting unit was headed

by Major Vishwajit Singh.253 Mehrajuddin was tortured in the presence

of his wife and child and then, taken away. In their attempts to secure

his release, Mehrajuddin's family paid one Nazar Mohammad of the 20

Grenadiers rupees ten thousand for Mehrajuddin's release. However,

neither Mehrajuddin was released nor the money returned.254

252 Qasim gave us a copy of the certificate issued to him by the local SHO upon

his release. The certificate mentioned the date of his release.

253 This officer has been named in more than one case. He was awarded the

'Ati Vishisht Sewa' medal by the Government of India in 1998.

254 See the case of Mushtaq Khan (99/3) above, for mention of Nazar

Mohammad in identical circumstances. The two families did not know each

other.

88

Failing to secure his release by other means, the family filed a petition

before the High Court in 1999. In their reply to this petition, the 20

Grenadiers denied Mehrajuddin's arrest and, denied that they had carried

out any operation in his locality on the date of his alleged arrest. In

November 2000 the Court disposed of the petition with a direction to

the police to register a case regarding Mehrajuddin's disappearance and,

to file a report regarding the progress in the investigation after six months.

This order was not complied with.

In Mushtaq Ahmad Shagoo's (2000/169) case the High Court seems to

have been in a tearing hurry to dispose of the petition. It was disposed

of within three months of issuance of the notice. The Court did not even

wait for the state government to file a reply. It took on record a copy of

a letter from the IG, Police to the state government's lawyer, which stated

that Mushtaq Shagoo was called to the police station for questioning

and subsequently released in the presence of a relative and one other

witness, on the same day. Based on this letter, in the absence of the

counsel for the petitioner, the Court dismissed the petition in February

2000.255

In Mohammad Yasin Bhat's (2000/171) case, as in many others, the

court proceedings give a distinct impression of the judges acting as if

they believe that the situation in the State is "normal" and, that the police

and the security forces routinely say the whole, unvarnished truth

before the Court. The petition before the High Court had a very short

life. One year after it was filed both the respondents – the Director

General Police and the army – submitted one set of objections.256 The

one page objections stated that Yasin was untraced by the JIC's (sic) of

Srinagar / Jammu manned by the CID organisation. However, it added,

as per the report of the SSP Srinagar the subject has been lifted by the

(sic) unknown uniformed gunmen on 02.03.2000 from his residence

and till date could not be traced out. A case … stands registered …

under FIR No. 98/2000 … (and) efforts are on to trace … (him) and the

persons responsible for this criminal act.

255 We could not trace the address of this family. Therefore, we could not

confirm whether Mushtaq Shagoo was actually released, or not.

256 This is highly unusual. We have not come across any other case where this

was done as the controlling authorities (the governments) are different for

the two agencies.

89

On 27 March 2001, in the absence of the petitioner's lawyer, the High

Court disposed of the petition on the basis of the objections filed, with

the direction that the investigation be expedited and the Registrar

General of the High Court be informed about its result, at the earliest.

Needless to add, the police did nothing to investigate the case.

Yasin's family also wrote to the Colonel of the Human Rights Wing, Kilo

Force, at Sharifabad, to Lieutenant Colonel B.S. Bansal of Badami Bagh

and, to the PRO of the Badami Bagh cantonment. None of them responded

to their appeals. However, responding to an article about

Yasin's disappearance in the Greater Kashmir, Brigadier (Staff) Ranbir

Chabra, HQ 15 Corps, wrote to the family saying that the army had

investigated the incident and, asserted that Yasin had not been arrested

by them.

His family also filed a complaint before the SHRC. The CRPF and, the

army denied picking up Yasin. Then, the SHRC sent the case to the NHRC.

They received a copy of a notice dated 3 October 2002 from the NHRC

asking the Defence Secretary, Ministry of Defence, New Delhi, to file a

response within four weeks. They heard nothing further thereafter.

In Mushtaq Ahmad Wani's (2000/173) case the 29 RR denied Mushtaq's

arrest, claiming that 'F Company' of the 29 RR, which was accused of

having effected his arrest from Baramulla town, was stationed in

Waddipora, Pattan and, not in Baramulla.257 The reply also denied that

Mushtaq had been arrested by any other unit of the 29 RR. In September

2001, the state government filed its usual reply, stating that Mushtaq

had not been arrested or received by any state government agency.258

The petition was disposed of in September 2001, within one year of its

filing, on the basis of these replies. The Court did not order an inquiry.

Nor did it find it necessary to ensure the presence of a representative on

behalf of the petitioner. However, in a show of fairness, the final order of

the Court stated that in case petitioner/ detenue is in possession of any

257 Waddipora is just a few kilometers away from Baramulla.

258 He had become a militant as a young boy, and remained with the Al-Jehad till

1992, when he surrendered before the Rajputana Rifles. He was booked under

the PSA, and remained in detention for about two and a half years. After his

release in 1995 he set up a tailoring shop in Baramulla. In 1997 he was married.

90

material /document/ evidence/ information/ proof regarding any custodial

dis-appearance of Mushtaq Ahmad Wani, the concerned individual

shall be at liberty to pursue his remedy under law thereto.

The story does not end here. Three months later, in December 2001,

the IG Police, Kashmir filed a reply to a query from the SHRC (before

which also Mushtaq's family had filed a complaint) stating that during

verification … (conducted by the concerned police station, it was revealed

that) On 19-8-2000259 troops of 29 RR picked (Mushtaq Wani)

up. He was brought for search of his house at Peth Seer by concerned

but nothing was recovered from his house. His brother Mohammad

Maqbool Wani was also lifted by said Army, who was later on released

after three days. Since the SHRC has no jurisdiction over the army,

nothing came of this petition.

Seventeen year old Abid Hussain Dar (2000/174) was arrested while

crossing over into Indian Kashmir, in the Mandial Sector-I, Chindial,

Kathua (Jammu region), along with two other persons.260 The news of

their arrest was published in two daily newspapers on 26 July 2000.261

The Police Headquarters Bulletin dated 25 July 2000 also stated that

three militants were arrested on 24 July from village Mandial with arms

and ammunition. However, after this there was no further news about

him. Seemingly he had disappeared though the CIK (Border section)

confirmed Abid's arrest, on the basis of the report in the Police Bulletin.

Unable to trace Abid's whereabouts his family filed a petition on his

behalf.262 In response to the petition, the 15 JKLI filed a reply denying

259 The date was, probably, an error. Both, the petition before the High Court

and, an application by Mushtaq Wani's wife to the SHRC state the date of

arrest to be 9 August 2000.

260 As a 12 year old, in 1996, Abid came under the influence of an older boy,

who took him along with him across the LOC. Abid wrote to his parents

after reaching Lahore, where he had joined a hostel and, was studying to

finish his High School.

261 The daily Aftab reported that one Abdul Hussain of Narwara, Srinagar and

two others were arrested by the 15 JKLI on 24 July 2000. According to

Abid's family Abdul Hussain was none other than their son, Abid, whose

name had been misprinted. The report in Greater Kashmir merely reported

the arrest of three suspected militants without naming them and, without

mentioning the date of their arrest.

262 They also filed a complaint before the SHRC.

91

they had arrested Abid Husain Dar. The reply stated that the 15 JKLI

has never been deployed in Kathua Sector or Jammu & Kashmir State

since its raising. On 24 Jul 2000 the unit of the answering respondent

no.2 (JKLI) was at Bathinda Mil (sic) station. The state government's

reply stated that it had no information beyond the fact that Abid had

gone across to POK in October 1996, along with an unknown Gujjar

boy. In February 2002 the High Court dismissed the petition, on the

basis of the replies filed, and on the ground that the newspaper cutting

relied upon to assert Abid's arrest did not reflect his name.

Ali Mohammad Dar (2000/175) was arrested on 7 March 1998 from his

house by the soldiers of the 23 RR, camp Waripora. A cousin who lived

in the neighbouring house was arrested at the same time. The next morning,

Major Shetty at the camp accepted that Ali Mohammed and his

cousin had been arrested but stated that they had already been released

and would return home shortly. Returning home, the family discovered

that his cousin had indeed returned home but there was no sign of Ali

Mohammed. After some days the army officers denied that they had

ever taken him into custody.263

In response to the petition filed on behalf of Ali Mohammed, Major P.D.

Kumar of the 30 RR filed a reply stating that no civilian was arrested by

the Unit of the answering respondents 1 and 2 on 7-3-1998.264 The state

government's reply stated that Ali Mohammed had not been arrested by

any JIC of Srinagar/ Jammu, manned by the CID. The reply also stated

that as per the SDPO, Handwara there was no report from village Waripora,

of Ali Mohammed's arrest by the 23 RR. On the basis of these replies, the

High Court dismissed the petition without ordering any inquiry. The

Court observed that in view of the replies filed no direction for production

of Ali Mohammed Dar can be issued to the respondents … However,

the petitioner is at liberty to seek redressal by filing appropriate proceedings.

263 The family twice filed a report with the PS Handwara, but the police just

made pretence of registering their complaint. The third time they openly

refused to register their complaint. The SHO told them they must produce

Ali Mohammed's body before a FIR could be registered.

264 It was absurd for the reply to be filed by the 30 RR, when the allegations

were against the 23 RR. However, no one questioned this anomaly.

92

Narrating the events after their arrest, Ali Mohammad's cousin, Ghulam

Mohiuddin Dar said: After our arrest the soldiers took us to the nearby

ITI, where they have their camp. We were tortured all night. The officer,

Shetty, pierced our nails with needles and accused us of knowing militant

hideouts. Very early morning on the next day we were taken out

into the jungle. Ali Mohammad was taken ahead by an officer in his jeep.

I heard the sound of firing but I could not see anything. I noticed that the

soldiers with me were focused on the sound of the firing. So I took the

opportunity to slip away. Fearing for my safety, I stayed away from home

for a whole month. When I finally came home, I was summoned to the

army camp. The officer, Shetty, told me that the army had released me as

I was innocent. Since then, I have been taken into custody twice by the

army and, questioned as to whether militants come to my house. They,

also, ask me if I have seen Ali Mohammad but I have not seen him since

that day. Neither I nor Ali Mohammad had ever been arrested by the

security forces before this incident.

Shabir Ahmad Ghasi (2000/179) was arrested from his house on 22

January 2000 by the 6 RR, accompanied by the STF. Despite searching

everywhere his family could not find any trace of Shabir. They therefore

filed a petition on behalf of Shabir, seeking his production before the

Court.265 Later, they learnt that he had been detained in the RR camp at

Taratpora and that he had been killed, along with his co-detainee, Abdul

Hamid Badiyari. It was reported that their bodies were buried in the

village (Taratpora, Kupwara) graveyard. The family filed an application

before the High Court, seeking directions for the exhumation of the

bodies and, for tests to determine their identity.

The reply by the army denied Shabir's arrest, and stated that the 2 RR

had never been stationed at Taratpora. It asserted that the facts about

the Battalion's involvement were incorrect and that, perhaps, some other

security force was involved in his arrest. The application for exhumation

of the bodies and for DNA testing was opposed.

The State government did not file a reply. However, it produced a letter

from the SSP Srinagar to the Deputy IGP, stating that the matter was

265 Perhaps in an inadvertent error, the petition mentions the accused unit as

the 2 RR.

93

inquired into by SP City (North) and that the bodies buried in Taratpora

was not of the Ghasi or Badiyari. However, the letter confirmed that

investigations had revealed that Badiyari was arrested from his house

by the 6 RR, camp Hafrada-Taratpora. Taking note only of the denial

contained in the letter, the Court noted that in view of the contents of

this letter, the petition was rendered un-workable and infructuous. It

therefore rejected both, the habeas corpus petition and the application

for exhumation and DNA testing of the bodies buried at Taratpora, and

dismissed the petition. While doing so, it granted the petitioner liberty

to file proper proceedings for seeking proper relief.266

Abdul Hamid Badiyari267 (2000/180) was arrested by the 6 RR, on 21

January 2000, from the Ghantaghar Auto Stand at Lal Chowk, Srinagar,

in the presence of his father and, Shabir Ghasi's brother.268 On learning

of his arrest from her father-in-law Badiyari's wife rushed to his auto

stand and, after enquiring from his colleagues, lodged a report regarding

his arrest with the PS Maisuma.

After a futile search for Badiyari's whereabouts, his family filed a petition

on his behalf praying for his release, if alive, and also for exhumation

of the bodies buried in Taratpora, for determining their identity

through DNA testing.269 The 6 RR's reply denied the arrest of Badiyari

and Ghasi, stating that Srinagar was not within the area of operation

of the unit and that counter insurgency operations outside the area of

responsibility are executed on explicit orders of "higher headquarters".

270

In a similar order, as in Shabir Ghasi's case, the High Court rejected the

plea for exhuming the bodies, relying upon the report of the SSP Kupwara,

which stated that the bodies buried in Taratpora were not of Shabir

266 The family appealed against this order but we do not have information with

respect to proceedings in the appeal.

267 He was a former militant, who had received training in Pakistan.

268 Badiyari's father and Shabir Ghasi's brother had been arrested earlier and,

were brought along by the RR, at the time of the arrest. Badiyari's father

was released after his arrest.

269 Evidently, by the time Badiyari's family filed their petition they had learnt

of the bodies buried in Taratpora.

270 Note that there was no clarification on whether such orders had been issued

for the arrest of Ghasi and Badiyari.

94

Ghasi and Hamid Badiyari and, holding that the petition was rendered

unworkable and infructuous, dismissed it.271

During one of her trips to search for her husband, Badiyari's wife met a

Hawaldar (Head Constable) from PS Vilgam, Kupwara, whom she had

met earlier also. Saying that he would have lost his job if he had told her

the truth at that time, he told her that the 6 RR held Badiyari and Ghasi

for about 10 days in the Taratpora camp and, thereafter, they were killed.

Since no one came to claim their bodies the villagers buried them outside

the police station.272

III. The 'Sanction' Cases

The operations of the security forces in Kashmir (except the police) are

governed by the Armed Forces (Jammu and Kashmir) Special Powers

Act 1990 (AFSPA). Section 7 of the Act makes it mandatory that before

any proceedings are launched again any member of the armed

forces covered by the Act, the central government must sanction the

prosecution. For this purpose, the central government is required to

examine all the material, and evidence gathered by the police during its

investigations.

The police completed their investigation and prepared a charge sheet in

four of the 85 petitions discussed in this report. These were the cases of

Basharat Shah, Shabir Bhat, Sajad Bazaz, and Nazir Gojar. In two of

these cases, those of Basharat Shah and Shabir Bhat, we have no information

other than the fact that the charge sheets were ready. In the

other two cases the High Court, willy nilly, got involved in the process

of obtaining sanction from the central government, which is the appropriate

government under the AFSPA, for prosecution of the accused

officers of the armed forces. The central government rejected the request

for grant of sanction to prosecute in both these cases. An account

of the proceedings in these two cases is given below.

271 This order, too, was appealed against.

272 A woman of extraordinary good looks, Badiyari's wife had attempted suicide

twice. She told us Many people want to marry me but I don't want to marry

again as I am afraid for my children. However, she ultimately did remarry

in late 2004.

95

Twenty two year old Sajad Ahmad Bazaz (92/2) was arrested from his

home on 12 February 1992, by 30 Bn BSF. The arresting party was led by

Deputy Commandant DS Rathore, accompanied by a 'Cat', code named

Asgar.273 Sajad ran a small shop selling daily use items, cigarettes, etc,

and had no connection with militancy. His arrest was the fall out of an

altercation he had with the 'Cat', Asgar, who owed him over rupees one

thousand and had refused to pay.

The habeas corpus petition filed by Sajad Bazaz's family was disposed

of in September 1992, within six months of its filing, with a direction to

the respondents to release Sajad, forthwith.274 Sajad was not released

and, his father filed a 'contempt' petition against the respondents in

mid-September 1992. The farce of this case was played out in this

petition. This petition was dismissed in July 2004.

The police completed their investigation in the case in September 1993,

finding a prima facie case against Deputy Commandant DS Rathore of

the 30 Bn BSF and, the 'Cat', Asgar. Accordingly, a charge sheet was

prepared against these two persons. Since the 'contempt' case was pending

before the High Court, the police reported this fact to it. They also

informed the Court that further action in the prosecution of the two accused

was possible only after sanction had been obtained from the

central government. To this end, the police stated, the state government

had been requested to apply for the requisite sanction.

In January 1994, the state government wrote to the central government

for sanction to prosecute Deputy Commandant DS Rathore. Under pressure

from the High Court the police also continued to search for the

whereabouts of Sajad Bazaz. In November 1996 the police informed the

Court that their investigations revealed that DS Rathore and Asgar had

conspired to kill Sajad and dispose of his body. Based on this finding,

the police prepared a supplementary charge sheet against the two accused,

adding the charge of murder.

273 'Cat' is a euphemism for an informer, a mukhbir who is attached to a unit

(or an officer) of the security forces. These people are often former militants

but not always.

274 Since the respondents did not file a response to the petition despite being

afforded several opportunities, the High Court deemed his continued incarceration

illegal and, directed his release.

96

The sequence of events in the Court proceedings, including the stand

of the respondents, both state and central, over the years is sufficient,

without further comment, to once again confirm the impossibility of

justice in Kashmir.

On 3 December 1992 the IG, BSF, Kashmir Frontier said that Troops

in my command had not been connected with apprehension,

detention or custody of Sajad Bazaz.

On 17 February 1993 the Additional Chief Secretary (Home) J&K

filed an affidavit denying that Sajad had been arrested by the

state agencies or that he was in their custody. The affidavit added

that many youths had crossed the border for training and families

had been pressurised by militants to allege that they had

been picked up by State.

On 22 September 1993 the IG, BSF filed another affidavit, denying

that Sajad had been apprehended by the BSF.

Over the next four years the proceedings continued a purposeless

course. In October 1993 the Court ordered a judicial inquiry

into Sajad Bazaz's disappearance.275 The inquiry report dated

July 1994, confirmed that Sajad Bazaz had been arrested by the 30

Bn BSF. The BSF did not participate in the inquiry proceedings.

In October 1994 the Court posed the following two questions:

1. Why had sanction not been accorded for the prosecution of

the accused, despite the lapse of one year from the date of

preparation of the charge sheet/ request by the police to the

state government for obtaining sanction?

2. What had happened to the detenue? Whether he was still

alive, or not?

275 The object of ordering such an inquiry, when the police had already prepared

a charge sheet, was not very clear. In the specific circumstances

obtaining in Kashmir, such an inquiry was merely a means of delaying the

course of events. It was patent that all concerned that the High Court

should focus on the task of obtaining sanction to prosecute the accused

officer rather than in unnecessary displacement activity.

97

In November 1994, the Court asked the counsel for the BSF to

furnish the whereabouts of Deputy Commandant DS Rathore.

This order was passed in response to the statement by the police

that they were not in a position to arrest DS Rathore as the BSF

were not cooperating. This order was not complied with.

In September 1995, during the course of a hearing, the state government's

counsel informed the Court that the police had done

their job by investigating the crime and preparing a charge sheet

against the accused persons. He claimed that it was not the duty

of the police to search out the whereabouts of the disappeared

person.276

For the next one year the Court continued to monitor this aspect

of the police investigations. The police reported failure in their

attempts to interrogate Deputy Commandant DS Rathore, on

account of non cooperation by the BSF. They also reported failure

in their attempts to arrest/ interrogate Asgar, the 'Cat', despite

sending a team of officers to Bihar and other places in India

where he might, reportedly, be found. Sometime towards the end

of 1996 the counsel for the BSF orally informed the Court that the

central government had refused sanction to prosecute Deputy

Commandant DS Rathore. However, he did not produce a copy

of the order of refusal.

In April 1997 the Court expressed exasperation at the interminable

delays in the case. It pointed out that sanction was not

required to arrest an officer who had committed an offence and

questioned why the Investigating Officer (IO) of the case, who

was of the rank of a gazetted officer in the State Police, had not

arrested the accused officer of the BSF. The IO was asked to file

an affidavit stating his reasons for not arresting the accused.

In May 1997 a 'Law Officer' of the BSF appeared before the

Court and informed it that Deputy Commandant DS Rathore was

to face a Court Martial for the offences alleged to have been

276 The Court over ruled this submission and directed the police to search for

Sajad's whereabouts.

98

committed by him. Counsel for the petitioner protested that it

would be illegal to permit such a Court Martial to proceed. The

Court, however, ignored the threat that the proposed Court Martial

posed to the proceedings for obtaining sanction, and directed

the police to seek custody of the accused officer from the

BSF.277

In July-August 1997 the petitioner filed an application before

the Court complaining of harassment by the BSF, who were trying

to force him to testify before the GSFC (General Security

Forces Court)278 and, to produce his other witnesses and evidence

before the said GSFC. The application prayed that the

Court stay the GSFC, pending the decision in the proceedings

before the High Court. Instead of granting this request the Court

directed the petitioner to cooperate with the BSF, even as it directed

the BSF to file a reply to the petitioner's application. As

subsequent events show, this display of prevarication by the

High Court rang the fini for all possibility of obtaining sanction

to prosecute the accused BSF officer.

In September 1997 the BSF filed its reply, arguing that the GSFC

proceedings were not parallel proceedings (as argued by the

petitioner). The BSF claimed that the bar against parallel proceedings

could have been invoked only if at that time a civil

court had been conducting proceedings in the case.279 They also,

submitted that on the basis of the High Court's direction of August

1997 all the civil witnesses had deposed before the GSFC.

Lastly, the reply submitted that the proceedings under the BSF

rules were impartial and that they had already been concluded.

277 The direction was meaningless since the police had already made it very

clear to the Court that they were not in a position to compel the BSF to

hand over custody of DS Rathore to them. Ironically, in July 1997 the BSF

offered to produce DS Rathore before the police but on that date the police

was not represented before the Court.

278 The BSF's equivalent of a Court Martial.

279 An absurdly technical and hair splitting argument, which ought to have been

rejected outright.

99

For the next two years the Court continued to pursue the issue of

sanction though it ought to have known that there was no possibility,

in law, of sanction being granted once the GSFC trial had

been concluded. All it needed to do was to read the BSF Act.

In April 1999 the counsel for the central government informed

the Court that the central government had refused sanction to

prosecute DS Rathore. The counsel for the state government

had no clue despite the fact that a fax dated 16 December 1996

from the central government to the state government had specifically

communicated this refusal. The state government did not

produce this fax before the High Court despite being instructed

to do so, several times. Ultimately, the counsel for the BSF produced

a copy of this order in December 1999.

In July 1999 the Union of India and the BSF submitted a statement

of facts to the Court. Referring to the disciplinary action/

trial against DS Rathore by the GSFC, it was stated that the

GSFC had found him not guilty of all the charges laid against him

by the police in the charge sheet, including the charge of murder.

It was argued that in view of this fact DS Rathore could not be

tried again for the same offences, or on the same facts. Section

75 of the BSF Act, which specifically bars a subsequent trial,

was cited. Finally, it was argued that the proceedings before the

GSFC were valid and lawful.

In August 2000 the BSF (in response to the petitioner's application

praying that the refusal of sanction by the central government

be quashed) filed an affidavit stating that DS Rathore had

already been tried for murder and a second trial was prohibited

under the BSF Act.

In October 2000 the DIG, BSF submitted before the Court that the

finding of the GSFC, which held DS Rathore not guilty of offences

u/s 302, 344, 364 RPC read with section 46 of the BSF Act,

was confirmed u/s 107 of the BSF Act on 15 September 1997.

Under pressure from Sajad Bazaz's father the Court tried to find a

way around the impasse by asking the state government to ex100

amine whether a fresh request for sanction could be made, since

the charge of murder had been added to the charge sheet after

the first request was made in January 1994.280 The state government

jumped to acquiesce and made a fresh request for grant of

sanction to prosecute DS Rathore in August 2001, citing the

addition of the charge of murder upon him as the reason for this

renewed request.

Meanwhile the High Court failed to decide the petitioner's application

that the GSFC proceedings, which were undertaken while

the writ petition was pending before the Court, be quashed and

declared non est.281 In May 2002 the central government again

rejected the renewed request for grant of sanction to prosecute

DS Rathore, again citing the bar to a second trial contained in

section 75 of the BSF Act and stating that he had already been

tried by the court martial for the offence of murder.

The Contempt petition was finally disposed of, as infructuous, in July

2004, when the Court was informed that a charge sheet had been filed

against the second accused, Azad Mir alias Asghar.

Fourteen year old Nazir Ahmad Gojar (93/4) was arrested on 26 January

1992 by soldiers of 5 Dogra Regiment, led by Major R.P. Singh and

Major R.D. Singh. Two neighbours, Majid and Mohammad Ayub Gojar,

who were also picked up at the same time, were released about five

months later but Nazir was disappeared.282

280 The remark sidestepped the real issues. The Court, itself, acknowledged

this fact in an order dated 13.6.01, where is said that, the matter is not as

simple as is sought to be made out by the state government's (oral) stand

that it has no objection if Central Government is approached for fresh

sanction. Before that can be done it is necessary to answer the question

whether DS Rathore can be tried again, having already faced trial by a

GSFC for the same offences. It is also important to clarify on the legality of

the GSFC as it is contended that such a procedure could have been adopted

only after the charge sheet was produced in court and the option was

offered to the Commandant of the accused by the court. None of these

issues was actually addressed and the matter was allowed to slide further.

281 This is something that was well within the Court's powers.

282 Majid died shortly after his release, allegedly because of the torture suffered

by him in custody.

101

Since the respondents did not file a reply to the petition for more than a

year, the Court closed their right to file a reply. Thereafter, in November

1994, the High Court ordered an inquiry into Nazir's disappearance. The

army initially participated in the inquiry proceedings but later stopped

attending the hearings. Based upon the testimony of Nazir's co-detainee,

and eye-witness testimony regarding his arrest, in May 1996 the

Inquiry Judge held that there was no doubt that Nazir had been arrested

by the 5 Dogra, and must be presumed to have been killed in

custody.

Under pressure from the High Court the police registered an FIR, completed

its investigations and prepared a charge sheet against the CO of

the 5 Dogra and, the two officers who led the arrest party: Major R.P.

Singh and Major R.D. Singh. However, the police expressed an inability

to arrest the accused officers. In mid 1997 the SHO, Bandipora informed

the High Court that attempts to persuade 5 Dogra to produce the

three accused officers had failed. He also stated that the 5 Dogra had

been transferred out of the Bandipora area, and their current place of

posting was not known. In September 1998, in response to queries from

the High Court, the SSP, Baramulla stated that steps to arrest the three

accused officers could only be initiated after grant of sanction by the

central government.

In October 1998, the High Court disposed of the case on the basis of the

police report that the concerned department of the state government had

been requested to obtain the sanction necessary to prosecute the three

army officers. In March 1999 Nazir's family had the case reopened by

filing an application, alleging that the state government had failed to comply

with the Court's directions. In May 2000 the state government finally

wrote to the central government (Ministry of Home Affairs) for sanction

to prosecute the accused officers. In October 2000 the central government's

lawyers informed the Court that the state government had wrongly

addressed its request for sanction to the Union Home Ministry rather

than to the Defence Ministry; hence the delay. In April 2002 the central

government passed an order rejecting the request for sanction, citing

reasons. A copy of this order was supplied to the petitioner in October

2002, and with that the case was disposed of once again. On both occasions,

while disposing of the petition, the High Court failed to pass orders

on the petitioner's prayer for grant of interim compensation.

102

The reasons for which sanction was refused by the central government

in this case, are reproduced below.

1. That out of four witnesses before the District and Sessions Judge,

Baramulla only one, Mohammad Yousuf Gujjar, has named Major

RD Singh and Major RP Singh, and so prosecution case is not

convincing.283

2. That there are contradictions in the statement of the two witnesses

about the arrest and release. Ayub Khan deposed that his

brothers were released the same evening but Mohammad Yousuf

Gujar said that he and his brother were released after a month

from Jammu jail.284

3. No witnesses blamed Colonel (now Brigadier) VK Sharma. He

was named being the C.O of unit and on presumption of involvement,

otherwise there was no evidence against him.285

4. The Army officers denied on oath the arrest of individuals on 26

January 1992 or any other day and that they were not present in

the unit during that period. In fact Major RD Singh was on annual

leave for thirty days from 7 January 1992 to 5 February 1992

and Major RP Singh on casual leave of fourteen days from 22

January 1992 to 4 February 1992.286

5. It is on record that the Numberdar/ Sarpanch of Malangam village

certified on 25 February.2000 (witnessed by four prominent

residents of the village) that the personnel of Dogra Regiment

had not harassed or ill treated any person of the village. Nor was

any man/ woman killed.

283 It is settled law that reliable testimony of even one witness is sufficient to

secure a conviction.

284 This has no bearing on the issue of Nazir Gojar's arrest and disappearance.

285 The concept of Command Responsibility is too well settled to permit such

quibbling.

286 This was a matter for trial; not a ground for refusing trial

103

6. With regard to observation made by the Supreme Court in the

Naga People's Movement for Human Rights v UOI {AIR 1998 SC

431 (Para 52)}, grant of sanction to prosecute of the Army officers

is not justified based on available records and nor would it be

in public interest. The prosecution of officers will undermine the

morale, discipline, confidence and motivation of troops deployed

in the sector. Hence sanction under section 7 of the above Act is

declined.

-sd-

(Ajay Prasad – Additional Secretary)

104

IV. Where A Petition Was Not Filed

Of the 11 cases in this category, one has been discussed above, along

with the case of Manzoor Dar (98/2). The remaining cases are discussed

below. As in the previous section, many of the narratives here highlight

the every day, non-legal aspects of the panoptic regime of injustice and

impunity that has been thrust upon Kashmiris; a regime within which

the impossibility of justice is an unwavering stipulation in all circumstances.

The cases of 18 year old Ejaz Ahmad Sheikh (2003/2) and 19 year old

Firdous Ahmad Khan (2003/3) are connected by more than just the

fact that they were probably together when they disappeared.287 The

narratives in these two cases suggest the real possibility that these

boys left home to join the militants. However, given the absolute

uncertainty that pervades everything in Kashmir, it is equally likely

that they were picked up by the security forces and disappeared so

efficiently that their families could get no clue whatsoever to their

whereabouts. Ejaz Sheikh was an apprentice in an automobile repair

workshop. Arrested three times before his disappearance for just a

day or two, he was under constant pressure to become an informer

(mukhbir).288 On 20 August 1999 he left home, ostensibly to go to

work with his neighbour Firdous Ahmad Khan who worked in the same

workshop. Both boys disappeared.

According to Ejaz's father, the neighbourhood where they lived used to

be a hotbed of militancy.289 Later, most of the militants and their supporters

who survived the onslaught of the security forces started working

for the security forces as informers. After he grew up, Ejaz was fre-

287 We visited this family because we learnt that the STF had arrested Ejaz's

two younger brothers, one of them a little boy of about 12 years, just a

couple of days before. However, they had been released by the time of our

visit.

288 Twice his father secured Ejaz's release with the help of one of the informers

living in their locality. A few days before he disappeared some soldiers led by

a Captain Sharma from the BSF broke down the door of their house at 4

a.m., asking for Ejaz. This time his father took the help of the SP of their

area to get him released.

289 He works as a ward boy in one of Srinagar's oldest public hospitals

105

quently pressured to join these informers but he was never tempted. He

told his father that he did not want to become a militant or a mukhbir.290

The security forces used to also harass the family.

After searching for him everywhere Ejaz's father filed a report at PS

Rajbagh. He and the family of Firdous Khan also inserted an advertisement

in the paper, seeking information from the public at large about

their boys.291 He said that the security forces had raided their house at

least 30 times since Ejaz's disappearance, often taking him (Ejaz's father)

into custody. Each time they would question him about Ejaz's

whereabouts. Once, when he was still searching for Ejaz's whereabouts,

the policemen at the STF, Cargo complex interrogation centre detained

him for several days. He was tortured by DSP, Ghansham and his men,

who said that he was lying, and that Ejaz had not disappeared.292 Ejaz's

father suspected that the repeated raids were the result of lies fed to the

security forces by the STF and BSF mukhbirs who surround their

home.293 He wondered why the security forces did not raid his house at

the time when they thought Ejaz was in it, instead of harassing them and

torturing them.

Unable to bear the harassment, Ejaz's father once complained to the

SHRC. He said that their procedures are such that they cannot do very

much.294 A few days before our visit, the security forces arrested Ejaz's

two younger brothers. Frantic, Ejaz's father again complained to the

SHRC. They gave him a date of hearing in his complaint after one month.

Ejaz's father told them that there would be no point left in his complaint

after a month but the SHRC did not have any free dates before that. On

this occasion, Ejaz's father succeeded in getting his sons released after

a few days of detention.295 He withdrew his complaint to the SHRC after

290 He just wanted to learn his trade properly and, do his work.

291 He also met the then State Home Minister, Mushtaq Lone, for help but to

no avail.

292 Ejaz's father asked them to put a 24 hour watch on his house and, catch Ejaz

if he came home.

293 According to him, these informers would regularly lie to the security forces

that Ejaz had been home for a meal, or for the night.

294 Justice Kuchai (then Chairperson of the SHRC), personally spoke to the

DIG, Srinagar and, asked him to ensure that Ejaz's family was not harassed.

But the raids continued.

295 The boys told him they were interrogated about Ejaz's whereabouts.

106

their release, as his job and his family responsibilities leave him with

very little time to pursue futile litigation.

Firdous Khan's life ran on a somewhat parallel track. At the age of 14 he

had been arrested by the BSF during a crackdown. He was subjected to

intense torture and one arm was permanently damaged. Later, he was

booked under the PSA and jailed for two years. After his release, Firdous

used to go into a panic every time he was near the BSF. His family

acknowledges that everyone thinks Firdous ran away to became a militant.

But they say that he had no problems. Nor did he have a fight

with the security forces or anyone else. So, there was no reason for him

to have become a militant.

Since his disappearance along with Ejaz Sheikh, his family has been

constantly harassed by the security forces, who raid their house repeatedly.

His brother, Shabir, was taken into custody, and asked to produce

Firdous.296 Another brother, Javed, who is a police constable, was subjected

to a departmental inquiry on the ground that his brother was a

militant. Firdous's father, who is a permanent class-IV employee of the

state government, is frequently beaten up. In 2001 a new battalion of

the BSF came from Rajbagh and asked for photos but by then they had

no photos left. They (the BSF) told the family that Firdous had been

killed near the border but Ejaz was alive.297

His mother said, our family has no connection with militancy. We don't

know if he became a militant. Some say he is alive, others say he is

dead. We have no money and no contacts, so we did not file a case. Nor

have we made an application for compensation.

The story of Imtiaz Ahmad Wani (2003/4) raises echoes from other

narratives that we heard during our travels in the Kashmir valley. The

lack of a body, or knowledge of what has happened to him, can have

296 On another occasion, the 34 Bn BSF searched their house and took away

every photograph of Firdous that they found. Now the family does not

have any photograph of him.

297 Firdous's mother said that they did not tell us where his body was or anything

else and we were afraid to ask for details.

107

serious, unforeseeable consequences.298 Imtiaz's sister claimed to have

seen him in magazine photos and TV programs. She appeared to us to

be a sensible, hard headed young woman, who single handedly took

care of her aged parents.

Imtiaz was an orderly (peon) in the office of the Chief Conservator of

Forests. On the night of 15 – 16 May 1996, the family was at home. It was

raining heavily. Imtiaz was busy with his hobby of repairing electrical

appliances. Some BSF soldiers, accompanied by mukhbirs, came to the

house and took him away. The next day the family learnt that he had

been taken to the BSF camp at Gogji Bagh. Although they were unable

to meet him there, they saw him at a distance on several occasions. The

BSF repeatedly promised to release Imtiaz but after two weeks he was

moved from there and never seen again.

However, his family claims they had seen his picture several times. The

first time they saw him in a photograph published in India Today. He

was wearing a sweater, standing in a line for casting his vote, in Pahalgam.

After seeing this picture they went to Pahalgam and searched for him

but could not find him. Since 2001 they claim to have seen him several

times on TV, during various rallies. In 2002 they saw his face in a TV

programme on Kashmir Doordarshan, at about three or four p.m. in the

afternoon, during an interview with a minister from Gujarat.299 He was

one of three boys standing behind the minister. They also claim to have

seen him in another program in 2003, during the Assembly elections. He

was standing near Omar Abdullah during a political rally.300

298 Riyaz Gilkar's brother (95/4) claimed he saw Riyaz in several military camps,

over a period of many years. He admitted that his insistence that it was

Riyaz that he saw seemed unhinged behaviour to most persons. However, he

insisted that he had actually seen Riyaz on each of the occasions. Our

conversation with him, spread over several hours, left us most impressed

with his demeanour, which was serious, responsible and earthily healthy.

399 They did not know the name of the minister but described him as thin faced,

clean shaven, with white hair and wore glasses.

300 Imtiaz's sister agreed that these sightings did not make sense. Each time, she

said, we asked ourselves - how can it be Imtiaz ? But on none of these

occasions did they have any doubt. She said that they did not go to the TV

station to make inquiries because it would have been of no use.

108

Imtiaz's sister earns about rupees 20 to 30 per day making Pashmina

thread. This is necessary because the only other income of the

family is her father's tiny pension. They did not file a case in the

High Court but did file a complaint with the SHRC. Only dates are

given there, she said. Once, Justice Parray, the then Chairperson,

offered to arrange for compensation but they rejected the offer. We

don't want compensation for Imtiaz; we just want him back, she

said.

Mohammad Akbar Sheikh (2003/5), a daily wage labourer, left home

on 19 April 1990 and never returned. About eight or nine months later,

his family was told by neighbours and friends, that according to newspaper

reports, and the news on television, he had been arrested at the

border. However, they could not get any information of his whereabouts.

301 In July 2001 Akbar's family was stunned to see a photograph

in a newspaper called Chattan, published from Srinagar, which showed

Akbar in custody.302 The caption did not mention the location where

the persons shown in the photograph were being held. However, it

was stated that they had been held in detention for ten years. Shortly

after the photograph was published they also received a letter from

him, stating that he was being detained by the BSF in a camp in

Palampur (Himachal Pradesh). The family went to Palampur and made

inquiries from the shawl sellers nearby. They were told that 3 or 4

Kashmiris were detained in the camp there. The shawl sellers named

the Kashmiris who were in custody. On hearing the names Abdul Rashid

(brother) thought that one of them may be Akbar Sheikh but he was

not allowed into the camp.

After his return from Palampur the family went to the Chattan office.

The newspaper told them that they did not have any information other

than what had been published. They stated that they information published

had been released by the security forces. In 2002 the family filed

a case in court. They had also lodged a FIR. Abdul Rashid, Akbar Sheikh's

brother, said that his father stopped going to attend the case hearings

301 Around the same time, the security forces had raided their house and, searched

it.

302 Chattan dated 19 – 29 July 2001; Vol.17 No.26. The photograph shows a

few men standing under guard in an open field or ground.

109

saying that he is just a labourer and that he is afraid of being assaulted

for making allegations against the security forces.303

The family said that their home has been raided countless number of

times (at least 60-70 times) but nothing has ever been recovered. The

first raid happened the day after Akbar disappeared. However, the search

party did not say anything about Akbar having been arrested. Akbar

Sheikh's disappearance has unbalanced his mother.

Bashir Ahmad Sofi (2003/6) spent most of the year travelling outside

Kashmir, selling shawls. While in Kashmir he made utensils of copper

and other metals. On the night of 16 -17 July 2003 the BSF and the STF

raided Bashir's house.304 The house was searched and the family members

locked in a room. Neighbours reported seeing Bashir being taken

away. A picket of the local police, and the keepers of Naqshband

Sahab,305 also witnessed his arrest. However, the police picket did not

file a report even when personnel of the local police station came to

them making inquiries about Bashir's whereabouts. Despite extensive

efforts to trace him, Bashir was never seen again.

The family met every imaginable authority: bureaucrats and politicians.

They even submitted a representation to the Chief Minister, Mufti

Mohammad Sayeed, in the presence of the entire cabinet and his daughter,

Mehbooba Mufti, on 13 July, the day of the martyrs. They met Ali

Mohammad Sagar of the NC and, the secretary of PDP, Mr Karra and,

Maulvi Omar Farooq. Everyone promised to help but did not do anything.

They met with all the police officers – from the SP of the area,

the IGP, Mr. Rajendra, to the DGP. They also met the Divisional Commissioner,

Kashmir, Gopal Sharma, who told them that he had tried to

get information about Bashir over the phone from the army, the BSF, and

the police but none of them had cooperated.

303 The family did not have any papers pertaining to the case. Nor did they

have any reference that might have enabled us to trace the records in the

High Court. As such, we have treated this as a case where a petition was not

filed.

304 The family recognized the BSF uniform since there was a BSF bunker near

their house.

305 A major shrine.

110

The SP (North), Mr Jhalla, sent them in his jeep, with a constable, to

Bandipora, Ganderbal, Beerwah and the Srinagar military camps. They

could not go inside the camps but the constable made inquiries. Everywhere

the soldiers denied Bashir's custody. Ever since his disappearance

the police and BSF make inquiries from them. A BSF officer, a Sikh

with three stars on his epaulets had visited them several times since

Bashir was arrested. He told them that the BSF is searching for Bashir.

About one and a half months after Bashir's arrest a man was released

from the STF detention centre in the old Air Cargo complex. He sent the

family a message that Bashir was in detention there. A couple of people

from Bashir's mohalla (locality) went to meet him. They showed him four

photographs, from which he recognized Bashir.306 They also held a dharna

(a sit in protest) against his arrest. The entire mohalla, and people from

nearby areas, participated in it. Bashir's family did not file a petition

before the High Court. They said that they did not have witnesses

willing to testify. Nor do they have the money to litigate. We are

nanwais.307 There is no point in going to court.

Ali Mohammad War (2003/7) was in the carpet business. One day he

left for work and never returned. Soon afterwards, on 7 August 2000, the

family lodged an FIR at PS Pattan. They also filed a complaint before

the SHRC. About 11 months later the family learnt that Ali Mohammad's

body had been fished out by the personnel of PS Nishat Bagh from the

Dal Lake, three months after his disappearance. It was in a gunny bag

and bore signs of violence.

Mohammad Syed Tambakoo (2003/8) was a hawker selling electrical

goods outside a Gurdwara in Lal Chowk, Srinagar. His wife was pregnant

and was expecting their first child. On 24 May 1992, Syed Tambakoo

had gone to watch a cricket match at the Polo Ground in Srinagar. According

to witnesses, he was lifted by the BSF from there.

The family searched for him everywhere, meeting those in authority,

like Shafi Bhat of the National Conference and General Zaki. They also

306 This is another pattern that is repeated. The family of Ashiq Hussain Malik

(97/9) had an identical story to tell.

307 Traditional Kashmiri bakers

111

filed a report at the PS, Maisuma the same day. At the Hari Niwas

detention centre, on seeing his photograph, the soldiers on duty acknowledged

his presence and told the family to bring fresh clothes and toiletries

the next day. However when they went there the next day, his custody

was denied.

Mohammad Shafi Rah (2004/1) had been in the leather goods business

for several years and lived in Kathmandu, Nepal. After he had established

himself there his family sent his 26 year old younger brother

Mushtaq Ahmad Rah (2004/1) to join him.308 In August 2000 the family

received a phone call from Nepal, informing them of the arrest of both

brothers.309 Since many Kashmiris were arrested in Nepal that year, the

arrests were widely covered by the Nepal media. Most of those arrested

were eventually released. The others were handed over to the Indian

police and intelligence agencies. An extensive search in both Nepal and

India and appeals to numerous people in authority yielded no information.

The arrests were denied by the Indian authorities.310

Shafi's older brother, Mohammad Yasin, immediately left for Nepal.

He learnt that the Nepal police, accompanied by Indian police in plain

clothes, came when Mushtaq was in the workshop. Shafi had gone to

visit a friend, Farooq Ahmad Wani.311 The police first arrested Shafi,

brought him back to the workshop and then arrested Mushtaq. The

Indian Embassy in Kathmandu denied all knowledge of Shafi and

308 Shafi Rah was a member of the Al-Jihad in the early 1990's. However, when

infighting broke out among the militant groups and the family home was

attacked and destroyed in 1994, his family persuaded Shafi to give up militancy

and settle down. He moved to Nepal and settled down in business.

309 According to newspaper reports, 27 Kashmiri men were arrested by the

Nepali police within a space of a few months. These arrests were said to be

a joint operation with Indian police and intelligence authorities. All but

three were released. Apart from the Rah brothers, the third Kashmiri who

has been disappeared from Nepal is Ghulam Mohammad Sofi (2004/2).

310 Prior to Shafi and Mushtaq's arrest the Rah home in Srinagar used to be

raided regularly by the security forces, asking about Shafi's whereabouts; but

no one was ever arrested. Shafi's father was arrested in a raid in July 2000,

and kept in the old, Air Cargo, Aluchibagh detention centre for several days.

Shafi and Mushtaq were arrested in Nepal about a month after this incident.

311 Shafi was arrested from Farooq Wani's house. The police also arrested

Farooq Wani, one Shakil Ahmad, and one other person. Farooq and Shakil,

who were both married to Nepali women, were released after two or three

days.

112

Mushtaq's whereabouts and threw Yasin out of the Embassy compound

when he tried to insist for information.

The Nepal police told Yasin to go away, saying that the police from

Delhi had taken them away. Some sympathetic police men told him that

an SP and a DSP of the Indian police had come to coordinate the arrests.

Yasin also met some of those who had been arrested and released. All of

them were scared. They had been warned by the local police to keep

their mouths shut or they would be arrested again. Of the six people

who were not released the custody of three was admitted, and it was

revealed that they were held in a jail on the Bihar – Nepal border. But

the arrest of Shafi and Mushtaq Rah, and of one Ghulam Sofi was not

acknowledged.

Yasin was unable to persuade any lawyer in Nepal to take up the case

that he wanted to file against the Nepal police, asking that they disclose

the whereabouts of his brothers. He was told that the police vehicle in

which they were taken away was from Patna. So, he returned to India

via Patna, where he hired a lawyer to accompany him to the jail, to

search for his brothers. The jail authorities detained Yasin.312 During

interrogation Yasin was accused of being a spy. He was released after

three days and, came to Delhi. He made enquires from the Delhi police

about Shafi and Mushtaq. There he met a CID police man from Jaisalmer,

who told him that his brothers were being held in Jodhpur.313

The Rah family requested human rights activists in Delhi for help. Their

inquiries seemed to confirm that both the Rah brothers were indeed in

Jodhpur. With the help of friends the family telephonically hired two

lawyers in Jodhpur. They were asked to go to the jail and check if Shafi

and Mushtaq were being detained there. After checking with the jail

authorities they called back to congratulate the family, saying that there

were two Kashmiri boys in the jail. At Jodhpur, the jail authorities told

the Rah family that they needed proper documentation from Srinagar to

establish their identity as Indians before an interview could be allowed.314

312 The lawyer left, promising to try and secure his release as soon as possible.

313 Both places are situated in Rajasthan

314 The identification papers carried by the Rah patriarch were not accepted.

They asked for an affidavit attested by the court of the DJ, Srinagar, to

establish their place of residence.

113

They returned to Jodhpur two months later with the necessary documentation

but the jail authorities then said that they were under instructions

to refuse all requests for a meeting.315

In Delhi the family filed a petition in the High Court but the case was

rejected by the Court, saying that they could not act on the basis of

information contained in the newspapers. Their lawyer also wrote

letters to the IB (Intelligence Bureau), the NHRC and the government

but got no reply. Letters to the Prime Minister, through Yusuf

Tarigami, MLA J&K Legislative Assembly, and another to the Principal

Secretary (Home), Government of India also went unanswered.316

After the arrests the raids on the Rah house have stopped completely.

Ghulam Mohammad Sofi (2004/2) and his nephew, Wazir, were arrested

by a joint force of the Nepali and Indian police on 16 August

2000.317 The Nepali friends with whom Ghulam Mohammad was dining

that night were also arrested.318 Wazir was released after about 10

days. An extensive search and numerous appeals by Ghulam Sofi's

family in both countries yielded no result. His arrest was denied by

the Indian authorities.

According to the family, Wazir's release was fortuitous. One night a

drunk was brought into his cell. He asked the drunk to phone his brother

upon his release. The drunk kept his promise and phoned, telling the

family that Wazir was at PS, Singh Durbar. Wazir's brother rushed to

the police station and demanded to meet with his brother and uncle.

Wazir heard his raised voice and called out in Kashmiri. After some

parleys Sub Inspector Rupak Gurung (who also spoke with his superi-

315 The CID questioned them several times in Jodhpur. They were threatened

with arrest. Frightened, the family left Jodhpur.

316 They also lodged an FIR at PS Mehrajgunj, in Srinagar, and met many

authorities and ministers. They also filed a complaint with the SHRC.

317 The police party was headed by one Birendra Shrestha and, SI Rupak Gurung,

both of whom were from Nepali intelligence. They were accompanied by

five or six others, probably from India. Birendra Shrestha was a frequent

visitor to the Sofi shops. Over a cup of tea he would seek their cooperation

in identifying people from pictures that he showed them.

318 He had lived in Kathmandu for 28 years. His older brother had been there

even longer. They owned several shops in the city, selling Kashmiri handicrafts.

114

ors over the phone) prepared a release document in Nepali, which Wazir's

brother signed. On asking about their uncle Gurung said forget about

him if you want to live here.319

The family met everyone imaginable, in Nepal and India: the DIG Police

and the IG Police in Nepal, the Union Home Minister, LK Advani in

Delhi, Mangatram Sharma, the deputy Chief Minister, in Srinagar, the

president of the Congress party, Sonia Gandhi, Omar Abdullah and,

many others. They also met people from the ICRC.320 Once the ICRC

informed them that the men arrested from Nepal were to be shifted to

Tihar jail, Delhi but Ghulam Sofi was not among them.

The Sofi family says that the Nepali intelligence officer, Birendra

Shrestha, knows everything about the case. It was his job to catch and

arrest people and hand them over to the Indian authorities. They say

that we are not even claiming that our uncle is innocent. Let the court

decide. But even if he is guilty, we are entitled to meet him. We should

be told of his whereabouts so that we are released from agony of not

knowing and, from our endless search for him. After all, even the killers

of Indira Gandhi and Rajiv Gandhi were tried and punished. What

is it, so bad, that my uncle did that he is not, even, shown to us?

319 After nine days of detention Wazir, his uncle, and one Habibullah Malik

were taken somewhere in a vehicle. They were not allowed to see where

they were going. After some time, Wazir was dropped back at the PS Singh

Durbar but his uncle was taken away.

320 International Committee for the Red Cross

115

321 Article 21 states- "No person shall be deprived of his life or personal liberty

except according to procedure established by law."

322 AK Gopalan V. The State of Madras (AIR 1950 SC 27), in which the Court

held that the word law, as used in Article 21 meant State-made law and, was

not an equivalent of law in the abstract or general sense embodying the

principles of natural justice.

323 Maneka Gandhi V. Union of India (AIR 1978 SC 597). In a series of judgements

starting from the early 1970s, the Supreme Court transformed the

meaning of the expression procedure established by law in Article 21 to

mean procedure that is just, fair and proper; in accord with the objects

underlying the establishment of the Indian republic and, not just procedure

prescribed by the parliament. Thus, for a law to be valid it had to also pass

the test of being in consonance with the basic structure of the Constitution.

The whole of the chapter of the, Constitution containing the Fundamental

Rights guaranteed under it, was held to be part of this basic structure.

Brooding Omnipresence:

Notional Powers and Actual Impotence

The powers vested in the Supreme Court: to do justice, to protect the

fundamental rights, of people in general and citizens in particular, are

sweeping. Under Article 32 any person whose fundamental rights (including

the right to life) have been violated can move the Supreme Court

directly, and as a matter of right, for an appropriate writ. Similarly,

Article 226 of the Constitution empowers the High Courts of the country

to issue writs. Thus, the remedy is symbiotically linked with the

guarantees of life and personal liberty under Article 21 of the Constitution.

321

The crux of the guarantee of the right to life, which forms part of Article

21, is contained in the expression except according to procedure established

by law. By the time of the insurgency in Kashmir, the judicial

interpretation of this expression had evolved from a narrow, pedantic

view in the AK Gopalan322 case to the position articulated in the Maneka

Gandhi case.323 This case also overturned the notion that the Fundamental

Rights under the Constitution were contained in separate, watertight

compartments. Thus, in order to satisfy itself about the constitutional

validity of a law (or order) that was impugned as violating a citizen's

fundamental rights, the Court would not only examine the direct

impact of that law (or order) upon the specific right (corresponding to a

particular Article of the Fundamental Rights Chapter) whose violation

116

was complained about; it would also examine the indirect impact of the

law (or order) upon the fundamental rights of the complainant, taken in

their totality.324 The Court declared that if the inevitable consequence of

the operation of the impugned law (or order) was the violation of the

fundamental rights, such law (or order) would be declared unconstitutional

and struck down.325

Based upon what it called the brooding omnipresence of Article 14 in

the Constitution, the Supreme Court derived a doctrine of the courts'

obligation to do justice in exercise of its public law jurisdiction, as

distinct from the remedies available to aggrieved persons under normal

legal processes, called private law remedies. The Nilabati Behara326

decision and the DK Basu327 decision, two cases that have become part

of the global human rights jurisprudence, emerged out of this process.

In the Nilabati Behara case the Court declared that the wide powers

given to it by Article 32 impose upon it a corresponding constitutional

obligation to forge such new tools for doing complete justice and enforcing

the fundamental rights guaranteed in the Constitution. It said

that it was no longer enough to relegate those aggrieved by a violation

of their fundamental rights to the normal civil law remedies. Further,

making it clear that the powers of the High Courts were co-extensive

with its own, the Court held that This Court and the High Courts, …

have not only the power and jurisdiction but also an obligation to

grant relief in exercise of its jurisdiction under Articles 32 and 226 of

the Constitution to the victim or the heir of the victim whose fundamental

rights under Article 21 of the Constitution of India are established

to have been flagrantly infringed by calling upon the State to repair

the damage done by its officers.328

324 Article 13 stipulates that all laws inconsistent with or in derogation of the

fundamental rights guaranteed in the Constitution shall be void to the

extent of such inconsistency.

325 The Court relied upon Article 14 of the Constitution to develop this view:

The State shall not deny to any person equality before the law or the equal

protection of the laws within the territory of India.

326 Nilabati Behera V. State of Orissa and others; AIR 1993 SC 1960.

327 AIR 1997 SC 3047.

328 It added that the State has the right to be indemnified by and take such action

as may be available to it against the wrongdoer in accordance with law through

appropriate proceedings.

117

A few years later, in the DK Basu decision, it laid down binding and

enforceable guidelines to prevent violation of the fundamental rights of

the citizens of India by the law enforcement agencies. The Court declared

that a failure to comply with the guidelines laid down by it would

tantamount to contempt of court and, would be punishable as such.329

Apart from the larger position enunciated above, the specific case of enforced

disappearances at the hands of the security forces operating under

the AFSPA is also fully covered by the decision of the Supreme Court in

the Sebastian Hongray case, which pertained to the enforced disappearance

of two people from a village in Ukhrul district of Manipur.330 Despite

its severe shortcomings, there is no gainsaying that this decision established

the nature of the inquiry to be conducted in a case of enforced

disappearance. The Court declared that in a petition for a writ of habeas

corpus The normal practice is that …the Court would direct a notice to

be served upon the respondents with a view to affording (them an opportunity)

to file evidence in reply. If the facts alleged in the petition are

controverted …the Court would proceed to investigate (them) to determine

whether there is substance in the petition.331 … If on investigation

of facts, the Court … is satisfied that the respondent was responsible for

unauthorised and illegal detention of the person or persons in respect of

whom the writ is sought, (it) would issue a writ of habeas corpus which

would make it obligatory for the respondents to file a return.332

Thus, by the time the insurgency started in Kashmir, it was an established

proposition that under Article 32 of the Constitution the court

had an obligation to act in defence of the guaranteed rights of the citizens.

Further, it was also settled law that in such cases, the court's

powers were of the widest amplitude and, were not hamstrung by rules

329 The experience of lawyers who filed contempt petitions, instead of petitions

for a writ of habeas corpus, shows that in Kashmir this additional,

remedy created by the Supreme Court was as bereft of substance as the

original writ. See case of Nazir Malik and Shafi Shah (97/1) above.

330 Sebastian Hongray v. Union of India and others; AIR 1984 SC 571

331 By the date of this judgement it was also a settled position that when acting

under Article 32, or Article 226, the Supreme Court and the High Courts had the

power to delegate the inquiry to some other person or agency, which would report

its findings to the court.

332 Consequences would flow if the detaining authority failed to produce the

person concerned, in compliance with the court's order, or provided sufficient

explanation for its failure to do so.

118

and procedure. In fact, the Supreme Court had held that it was free to

fashion the remedy to suit the need.333

Given such a plenitude of powers, it should have been possible for the

Jammu and Kashmir High Court to make its presence felt and, to provide

at least a modicum of protection and relief to those complaining of

a violation of the right to life of their kin. However, as we have seen,

the High Court's failure in Kashmir was absolute. Leave alone a display

of its enormous powers in exercise of its writ jurisdiction, the Court

failed to display even the far lesser powers that an ordinary civil court

routinely exercises. In this section we shall examine the functioning of

the High Court from the perspective of a list of attributes of a court,

derived from the Code of Civil Procedure 1908.334

In order to be recognised as a court, a body constituted as one must

have the following attributes or powers:

The power to summon, including the power to summon witnesses.335

The power to order discovery (of documents, evidence, etc) including,

the power to ensure the filing of proper replies/ responses

by the parties and, the power to impose a penalty for disobedience

of its orders (costs, forfeiture of the right to file a reply or,

of the right to lead evidence, contempt of court, etc).

The power to hold an inquiry itself or to appoint some other

person or authority to do so.336

The power to pass judgement and decree, including the power to

enforce its judgements and decrees – by way of execution or

contempt proceedings, including the power to attach property,

imprison, etc.

333 Bandhua Mukti Morcha v. Union of India; AIR 1984 SC 802

334 The J&K Civil Procedure Code is based upon an earlier version of the Indian

code. Since there are no significant differences between the two from the

perspective of this paper, I have used the Indian code as a point of reference.

335 A connected aspect, namely the problem of identification of the accused

unit, will also be discussed since, before it can summon the Court must be

able to identify who (or what) to summon.

336 A civil court has the power to appoint commissioners to record evidence on its

behalf and to, even, give reports on issues in contention between the parties.

119

I. The Power to Summon

Since it must invariably summon the other party (or parties) to a dispute,

it is reasonable to assume that a court would devise a quick and

efficient method for ensuring their presence before it. The High Court

fails this test in the cases examined by us. This failure must be deemed

culpable since the respondents were invariably the state and the central

government and their constitutive elements such as the Army, the BSF,

the CRPF, the police, etc. Service of notice upon these respondents

ought to have been no problem at all, happening almost

instantaneously.337 Nevertheless, it took as much as 22 months to serve

notice/ summon the respondents in one case. And, this case was not an

exception. In as many 13 cases it took more than one year to serve the

respondents. In 28 cases it took three months or more to serve notices

upon the respondents. That this delay in effecting service was

completely unnecessary is proved by the fact that in six cases service of

notices was effected on the same day as it was ordered; in 25 cases

service was effected in one month or less, from the date on which it was

ordered. A couple of examples to illustrate the point are given below.

There were three respondents to the petition filed on behalf of Farooq

Ahmad Shalla (96/3).338 On 31 October 1996 the Court ordered notice of

the petition to be served upon the respondents. Ten months later, on 30

August 1997, the process server (the official whose job it is to serve

court notices and orders) reported that after carrying out an extensive

search for the 22 RR he had discovered that they were currently stationed

in Anantnag district. Despite this information being available on

record, on 20 January 1998 the Court ordered the petitioner to file fresh

particulars of the 22 RR.339 Ultimately, on 27 March 1998, the Court

337 Both the central and the state governments maintain a sizable permanent

establishment in the High Court. In addition, various departments and agencies

of the two governments often appoint 'standing counsel' of their own,

to act as their permanent representative before the court.

338 UOI through the Ministry of Defence (MOD), New Delhi; State of J&K

through, the Additional Chief Secretary (Home); CO Rashtriya Rifles 22

Bn, through RS Raina.

339 The absurdity of the Court demanding fresh or better particulars of the

respondents in a habeas corpus petition, where the petitioners often know

nothing about the agency that has effected the arrest, is patent.

120

directed that notice of the petition be served on the 22 RR through the

standing counsel for the central government; something that could have

been done in the first place.340 Time taken to serve all the respondents:

21 months.

Two of the four respondents to the petition filed on behalf of Bashir

Ahmad Bhat (97/7) were served within two months. However, 10 months

after the petition was filed the respondent nos. 3 and 4, Commandant 12

MLI (Maratha Light Infantry), c/o 56, APO (Army Post Office) and, the

Union of India, through the Secretary, Defence, New Delhi had not been

served. By way of explanation, a court official noted that notices had

been sent to the wrong address.341 Three weeks later the file noting

states that fresh notices, as ordered, could not be issued due to non

availability of copies.342 Once copies of the petition were received from

the petitioner, the registry chose to re-serve them on the state government

respondents, who had been served more than a year earlier. Ultimately,

the registry decided to serve notice of the petition on the unserved

respondents through the standing counsel for the Union of India.

Total time taken to complete service upon the respondents: 20

months.

II. A Connected Issue: The Problem of Identification

In normal cases it is reasonable to assume that a petitioner will take steps

to ensure that a complete address is furnished to the Court. However, in

cases of enforced disappearance, the identity (and address) of the arresting

party is often concealed as a matter of policy and special measures are

required to ensure accurate identification of the arresting unit. Despite

this the existing process casts the onus of identifying the offending agency

340 Another aspect of the farce was the fact that in two connected cases,

service on the 22 RR was completed within a few months and, they filed a

reply within weeks thereafter.

341 The respondent no. 3 was to be served c/o 56 APO and, the respondent no.

4 was the Union of India, through the Secretary, MOD, whose address one

would expect was well known to the Court's registry.

342 In such cases it is the practice of the Court to issue notice to the petitioner

or his counsel, asking them to provide copies of the petition. Months can

be wasted in this exercise whereas there is no dearth of photocopiers in the

High Court.

121

of the security forces and/ or the actual unit involved, entirely upon the

petitioner. No agency of the State is required (or asked) to assist in this or

to take responsibility for ascertaining the facts despite the knowledge

that the central security forces rotate the units that are posted in Kashmir

every two years or so.343 This anomaly is rendered even more absurd by

the fact that the place of posting of the units of the armed forces is always

treated as secret, on grounds of military security.

Further, it is absurd to expect that a member of the arrestee's family, or the

general public, would be able to decipher the maze of security agencies

and units and identify the particular unit responsible for the arrest.344 The

difficulties of identification were compounded by the fact that the security

forces in Kashmir operate among an overwhelmingly rural and semiliterate

population. The problems with identification are similar in the case

of the para-military troops stationed in the valley, although their set up –

battalions and companies – is relatively simpler. In the case of both kinds

of security forces, our research shows a conscious design to conceal

identities and to avoid judicial scrutiny. Thus, in as many as 34 cases

there was a problem about the identity of the arresting unit.

Irrespective of the difficulties that the security forces created however,

it was entirely within the realms of authority and capability of the High

Court to demand that the security forces cooperate in devising a system

for identifying the force/ unit/ officers/ soldiers involved in cases of

illegal arrest and detention. For example, the security forces in Kashmir

function under a Unified Command for operational purposes. There

is no reason why it could not have been treated as unified for habeas

corpus purposes, also. This could have been done without compromising

security considerations. By pinning responsibility on the superior/

commanding officers, such a measure would have acted as a disincentive

to conceal the identity of the actual culprits. Instead, a lax and

343 Thus, it was almost invariably the case that the unit against whom the

allegation of enforced disappearance was made had been transferred out of

Kashmir by the time the Court got around to serving notices upon it.

344 The Indian Army is divided into regiments, battalions and companies but

this is not the only categorisation. Divisions, Independent Brigades and,

other formations abound. Further, the Army has a system of attaching

battalions from various regiments to larger formations. To top it all, unit

identities are usually abbreviated.

122

indifferent High Court allowed the security forces to get away with

every shenanigan and subterfuge.345

The problem varied from complete lack of information about the identity

of the arresting unit to slight confusion about specifics. Not so ironically,

considering the chaotic and inefficient level at which the system

functions, the identity of the arresting unit was fixed with a fair degree

of certainty by virtue of subsequent events in some cases where there

was very little information initially. On the other hand, in several cases

where there was only a very slight doubt (if at all) about the identity of

the arresting unit, the case floundered on the ground that the identity of

the arresting unit could not be ascertained with certainty.

The resultant delay in service of notices was the least of the problems

posed by the difficulty in identifying the arresting unit. This difficulty

went to the root of the litigation, rendering years of perseverance by

survivor families meaningless and, destroying what little faith they might

have retained in the system's capacity to deliver justice. To illustrate

the point, four examples are given below. A fifth case is discussed to

illustrate a possible, meaningful approach to the problem.

In Abdul Rashid Sheikh's (91/3) case the identity of the arresting unit

could not be ascertained at the time of arrest. However, three others arrested

along with him were released by the 24 Bn BSF after varying periods

of illegal custody. The Inquiry Judge recorded this fact as a finding in

his report. Yet, on the basis of clever cross examination of these codetainees,

the counsel for the BSF was able to persuade the Inquiry Judge

to hold that even the identity of the security force (i.e. whether it was the

BSF, CRPF, army or the RR) could not be fixed with any certainty.346

345 The most that can be said by way of exculpating the Court is to explain the

confusion and the delays in the initial cases, in the immediate aftermath of

the insurgency – when the problem of enforced disappearances surfaced in

the State – as arising out of inexperience. Where the Court has not cared to

resolve the problem, even after 15 years, one can not be faulted for thinking

that the failure to address this problem is part of a policy of indifference.

346 The culpable indifference of the system can be inferred from the fact that

even as the state government was pleading before the Inquiry Judge that it

was not in a position to identify the arresting unit, the DLSC Baramulla,

after perusing the reports submitted by the SSP, the local SHO, and the local

Tehsildar, came to the conclusion that Abdul Rashid was lifted by BSF 24 Bn

on 25.11.90, and was killed later on and is not alive.

123

The High Court unquestioningly accepted the findings in the inquiry

report and disposed of the petition in September 2003, leaving it open

for the police to proceed against the guilty parties as and when their

identity was established. This order was passed in the absence of the

counsel for petitioner, which must be presumed to have contributed in

the failure of the Court to notice the flaw in the inquiry report.347

Abdul Gani Najar (94/6) was arrested from his village home during a

crackdown by the army.348 After the crackdown, the villagers lodged a

report about the arrests with the police though they were not able to

identify the unit (or units) involved. The others arrested along with

Abdul Gani were released after a period of illegal detention from the

'Match Factory' JIC in Baramulla. Despite having this information, the

police declared that they could not identify the arresting unit of the army.

Since the family had no clue to the identity of the unit/s responsible, the

petition filed on Abdul Gani's behalf, named the Army Headquarters as

respondent no. 4. The army did not enter an appearance before the

High Court. In his report the Inquiry Judge recorded that respondent

no. 4 could not be served because no address was provided for it.349

Based upon the eyewitness testimony, the inquiry report concluded that

Abdul Gani had been abducted by the army during a crackdown on his

village but said that the unit involved could not be identified by either

the villagers or the police.350

In April 2003, the High Court mechanically accepted this report and,

relying upon the absence of a representative on behalf of the petitioner,

dismissed the petition for non-prosecution nearly nine years after it was

347 Even in the absence of the petitioner, had the Court applied its mind to the

facts of the case, it would have caught the flaw in the reasoning of the

Inquiry Judge and held that the identity of the arresting unit stood established

on the basis of the evidence led before the inquiry.

348 It was a major operation involving a very large number of troops and,

covering a vast area comprising six villages.

349 Patently, that an address was not provided for the Army Headquarters

cannot be made an excuse for not causing notices to be served upon them.

350 The Inquiry Judge specifically asked the police to help him identify the

accused unit but they expressed helplessness.

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filed.351 The High Court must be faulted on at least two counts. First, it

ought to have acted on the premise that the unit in charge of the JIC

from where the others were released should be held responsible. Second,

given that there was no doubt that the arrest was made by the army,

even though the unit could not be identified, it could have insisted on

pinning responsibility on the Army Headquarters, which was a respondent

or, even, on the headquarters of the army's operations in Kashmir.

Mohammad Shafi Dar (97/10) was stated to have been arrested from

his house in Srinagar by the JKLI (J&K Light Infantry), accompanied by

personnel from the STF. The GOC (General Officer in Command) Northern

Command and, the commander of the JKLI were both, respondents

in the petition filed on his behalf. However, the old address of the JKLI

was provided in the petition.352 The army filed two replies. The first

reply was filed by Colonel A Malik of the 20 Grenadiers, which was not

a respondent in the petition, denying that his unit had anything to do

with Shafi Dar's arrest.353 The second reply was filed by Colonel RK

Singh, Commandant JKLI Regimental Centre. It merely stated that since

the JKLI had permanently shifted from the Haft Chinar in December

1992, there was no unit of the JKLI at that site on 5-6 September 1997

when Shafi Dar was arrested.

Accepting this plea, the High Court held that it was not in a position to

resolve this disputed question (i.e. of the identity of the arresting unit)

and disposed of the case with the remark that the petitioner may lodge

a report with the police station from the jurisdiction of which his son

disappeared. The absurdity is obvious. Merely because the petitioner

had made the error of stating the old address of the accused unit it could

not be inferred that his identification of the unit was also erroneous.

351 Though the inquiry report was sent to the High Court in May 1997, it

continued to await it till December 2002, when the Inquiry Court sent it a

copy.

352 The camp at the old address – Haft Chinar – had since been taken over by

the 20 Grenadiers.

353 The only reason for the 20 Grenadiers to file a reply seems to be the fact

that the petition mentioned the JKLI's address as Haft Chinar.

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Fayaz Ahmad Khan (98/5) was arrested from his home in Srinagar by

soldiers of the 197 Field Regiment, led by an officer whose name the

family understood to be Major Yadav Prasad. In their reply to the petition

filed on behalf of Fayaz, Colonel A Deb of the 197 Field Regiment

denied Fayaz's arrest/ detention saying that he was a causal source for

the army and he was picked up from his home as per plan. Further,

according to the army, the nomenclature of both, respondent no. 2 (Commandant,

Romo Bn, Zakoora) and respondent no. 3 (Major Yadav

Prashad CO, 197-Bn, Army Camp, Nuner Kangan) was incorrect. They

stated that there was no unit called Romo Bn, Zakoora in the army and,

there was no officer named Yadav Prasad in the 197 Field Regiment.

However, the army did not inform the Court of the correct names for the

said respondents.

Claiming to base himself on the eyewitness testimony of the neighbours

who saw Fayaz being arrested, in a shocking display of ineptitude and

incompetence, the Inquiry Judge attributed his arrest to a Major Parshad

Yadov of the 197 Bn.354 The army filed objections to the inquiry report

before the High Court complaining that they had not been served notice

of the inquiry and could, therefore, not defend the allegations made

against them.355 They also, argued that there was no officer named Major

Yadav Prashad in the 197 Field Regiment. Instead of seeking clarification

for the confusions generated by the faulty inquiry report, the High

Court found it easier to accept the army's objections to it and, holding

that a non-existing entity could not have been served notice of the

inquiry, disposed of the case with an order for a fresh inquiry into Fayaz

Khan's disappearance.356

The case of Mohammad Afzal Shah (97/12) is the only case in our

database where the Inquiry Judge correctly applied the principles governing

the protection of the fundamental right to life to hold the State

354 Some witnesses had called him Major Yadav, while some had called him

Major Parshad. One of the witnesses stated that he knew the Major as he

had been posted at Khanmoh, prior to being shifted to Zakoora. This

witness had called him Major Yadav.

355 Factually incorrect since the army's counsel had entered appearance on its

behalf before Inquiry Judge, at the initial stage of the proceedings.

356 This was still pending when we last heard from the family, in June 2004.

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(both central and state governments) responsible. As of December 2003,

the case was still pending before the High Court, awaiting final disposal.

Afzal Shah was arrested from his house in Srinagar. The family was not

certain about the identity of the actual unit responsible for his arrest.

Therefore, the petition on his behalf named the GOC North, Brig Gen

(Staff) 15 Corps, the Chairman Unified Command Armed Forces, and

the BSF, as respondents, apart from officials of the state government.

The army respondents kept away from the proceedings, though the BSF

filed a brief reply denying their involvement in his arrest. The state

government also filed a brief reply denying custody, after costs were

imposed upon it for not responding to the petition within the time permitted.

357 Before the inquiry ordered into Afzal's disappearance, eyewitness

testimony amply established his arrest by the uniformed security

forces. However, the inquiry could not clarify the identity of the force

involved since the witnesses could only say that some persons in army

uniform arrested Afzal and took him away.358 Therefore, the inquiry

report held that the BSF and the police, both of whom had pickets near

Afzal's house, must be held responsible for his disappearance and should

be asked to account for his whereabouts.359

357 The costs were never paid.

358 The BSF personnel posted near their house told the family that the arrest

was made by the 9 RR, accompanied by some Ikhwainis. This seemed to be

confirmed by the fact that the day after his arrest, the 9 RR raided Afzal's

wife's parental home. Two months later the 9 RR arrested Afzal's militant

brother during a crackdown and, shot him dead. The killing was reported in

the press and the radio as an encounter. Thereafter, the RR raided Afzal's

family home, destroyed all the household goods and partially demolished

the house. However, since the family had no evidence to connect Afzal's

arrest with the 9RR, the petition did not name this unit in the petition.

359 In objections to the inquiry report the BSF reiterated that its units were not

responsible for Afzal Shah's arrest. It was stated that the BSF uniform of

that period was very distinct from the army uniform and therefore, it was

impossible to mistake one for the other. Covering all bases, the objections

also suggested that Afzal's disappearance may not be attributable to any of

the security forces since, very often, militants disguise themselves by wearing

army uniforms.

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III. The Power To Compel

Without the filing of proper replies, production of relevant documents

and records and ensuring that the parties, generally, disclose all facts

material to the lis, it is impossible to do justice. The cases discussed in

this monograph make it clear that neither the High Court nor its delegates,

the judges and officers appointed by it to hold inquiries into the

disappearances, had any coercive power in this regard. The Court could

not even ensure that the respondents paid the fine or cost imposed by it

upon them for failing to obey its orders in such matters.

Technically speaking, a court is entitled to proceed ex parte if a party

does not file its reply within the time permitted to it. But the filing of

replies is crucial in a habeas corpus petition. Both, the state government

and its agencies and, the central security forces have permanent

representatives before the High Court. Despite all this paraphernalia

and support, the respondents took their own time to file replies. The

maximum time taken by a respondent to file a reply was five years and

one month. In 33 petitions (out of the 85 examined), the accused agency/

unit of the security forces, took six months or more to file their response.

In as many as 38 cases the accused agency/ unit did not file any reply at

all.360 In many cases the record of the proceedings makes it clear that the

Court was reduced to, virtually, begging for replies to be filed. The

following cases illustrate the abject failure of the Court to enforce its

orders.361

After service of notice of the petition on behalf of Abdul Rouf Shah (90/

2), the state government's counsel was granted 10 days time to file a reply

showing law and authority for Rouf's arrest. Eight months later, the

Court granted one week, further, to the GA (government advocate), to file

objections. Since the reply was still not filed, two weeks later the Court

ordered fresh notice to the Additional Chief Secretary (Home), with a copy

of the petition. This, too, had no effect. A month later, the Court again

ordered notice to the Additional Chief Secretary (Home), with a request

360 Even the state government, did not file replies in 18 cases.

361 Most of these cases in this category are from the early years. In the later

years the Court displayed far less persistence and the farce became much

more cut and dried.

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that he look into the matter personally. Another three months later, the

government counsel submitted that he had not been able to get any

information from the respondents despite his best efforts and asked for

one week more to file objections, and to show authority. While criticising

the state authorities for being so negligent and callous about the fate of

the citizens, the Court granted a last opportunity to file a reply. However,

no response was filed by the state government or by the Additional Chief

Secretary who had been asked to personally look into the matter.

Fourteen months after notice was issued on the petition, the Court held

that since the allegations in the petition were not rebutted they must be

presumed to be correct. It asked the SP, Kupwara to register a case,

conduct an investigation and report its progress to the court. The SP

Kupwara did not comply with this order. Thereupon, the Additional

Chief Secretary (Home) and the Corps Commander (15 Corps) were

directed to produce Rouf before the Court within three weeks and, to

show authority for the arrest. Rouf Shah was not produced before the

Court. The army finally filed its response 19 months after it was asked

to do so, and after the Court had ordered an inquiry into Rouf's disappearance.

The state government never filed a reply.

In Waheed Ahmad Ahangar's (90/4) case, the Court first granted the

respondents 10 days time to file objections. Four months later the Court

said last opportunity of two weeks granted for filing objections.362 Two

months later it again granted two weeks for filing objections, imposing

a cost of rupees two hundred for non-compliance of its earlier order.363

Shortly thereafter objections were filed but without a supporting affidavit.

364 Nearly three months later the affidavit had still not been filed and

the Court again granted two weeks for this purpose. Another two months

later the Court granted a last and final opportunity of one week to file a

counter affidavit. Seven months later, the order sheet recorded that the

state government had filed an affidavit before the registry but it is not

on record.365 In all the state government took two years to file a two line,

362 Failing which, it directed that the detainee be produced before the Assistant

Registrar of the High Court. Neither part of the order was complied with.

363 There is nothing on record to show that the costs were paid.

364 A reply without a supporting affidavit has no probative value and, is treated

as no reply at all.

365 A fairly common occurrence, from what we have seen of the Court proceedings.

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bald denial of custody. The accused force, the BSF, never filed a response

before the High Court.

In Ashiq Hussain Malik's (97/9) case the Court granted the respondents

four weeks to file their replies. Two months later, this order was

repeated. The Court also recorded that copies of the petition had been

supplied to the counsel for the army respondents.366 More than two

months later, the Court directed the petitioner's counsel to again provide

a copy of the petition to the counsel for the respondents and granted

a further 10 days time to file a reply. One month later, the Court granted

two weeks last opportunity to the state government respondents to file

a reply. Yet another month later, the state government's counsel produced

a reply during the course of the hearing, stating that Ashiq Hussain

had been released. On this basis, without giving the petitioner's counsel

an opportunity to rebut this statement, the Court dismissed the petition

in September 1998, one year after it was filed.367

After the hiatus induced by the erroneous dismissal of the petition, the

saga resumed where it had left off but with a new twist. Now, the Court

recorded that the notice of the petition could not be served upon the

respondent no. 4, Commander, 20 Grenadiers, Camp Zainakoot for lack of

sufficient particulars (an euphemism for 'incomplete address').368 In a

parody of errors, the Court's registry issued notice to the petitioner to

supply better particulars of respondent no. 3, instead of respondent no.

4. It took another six weeks for the Registry to discover this error and to

issue fresh notices upon the respondent no. 4. Another two months later,

the notice for the said respondent was returned by the army with the

remark that the officer concerned had been transferred.369 Amazingly, on

366 Copies had already been supplied to all the respondents, several months

earlier. This fact is relevant since, in a second round of service the Court's

registry claimed it could not serve one of the army respondents, for want of

better particulars.

367 The State government's reply was erroneous. The release mentioned therein

pertained to an earlier arrest, several years prior to this. Because of this

hasty dismissal, Ashiq Hussain's family was forced to file a review petition.

It took 14 months for this order to be reversed and the case to be restored

to hearing.

368 The respondent no. 4 had been served, the first time around, as noted by the

Court's registry on 13 March 1998.

369 It is very likely that this officer deliberately got the first set of Court

notices returned because he was aware of his impending transfer.

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receipt of this report, instead of asking the army to furnish the new address

of the said respondent, the Court's registry once again directed the

petitioner to file fresh particulars for the respondent no. 4.370

No reply was forthcoming on behalf of the army for the next, nearly five

months, despite repeated opportunities being granted by the Court. Thereupon,

the Court directed the personal appearance of the army respondents.

Twenty days later, the army filed its reply.371 Shortly after the army

filed its reply the Court's registry received back the notices issued upon

these two officers with the remark that they could not be served for want

of better particulars. Thus, on the one hand a reply was filed by the army,

on behalf of these two officers and, on the other the army refused to accept

the Court's notice in their name, demanding better particulars. The

Court's registry, promptly issued notice to the petitioner for a third time to

file fresh particulars with respect to these respondents.

The Court took nine months to take notice of the army's reply.372 On

noticing that the reply denied the existence of two of the army respondents

named in the petition, the Court ordered the army to file an affidavit

specifically regarding the non existence of concerned officers in 20

Grenadier at relevant time while posted at District Budgam. Four

weeks time was granted to it for this purpose.373

370 How the petitionerwas expected to trace the then current posting of the

said officer, no one knows.

371 This reply was filed in September 2000, though it was dated August 1999. In

other words, even as the game of effecting service of notices upon the army was

being played out, the reply had been sitting ready for over a year.

372 The reply denied that Ashiq Hussain had been arrested by the 20 Grenadiers.

It also, denied the existence of two of the officers named as respondents in

the petition, Camp Officer Raj Pal and Commander A. A. Malik.

373 A pointless order. The army's reply already stated that these two officers had

never been part of the 20 Grenadiers. In adhering to the form, the Court over

looked the actual 'error' that the army had committed with regard to the

name of the Camp Commander, A. Malik, by misreading his name as Ab. A.

Malik (there was some overwriting in the petition/ summons) and, thereupon

denying his existence. The malafides of the 20 Grenadiers are seen from the

fact that around the same time as they denied his existence in Ashiq Hussain's

petition, the same officer, whose correct designation and name was Lt. Colonel

A. Malik, filed replies under his signatures in other cases in which the 20

Grenadiers was an accused. In Ashiq Hussain's case however, the unit took

care to ensure that this officer did not file any reply/ affidavit.

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Meanwhile, the state government had, once again, filed a reply describing

the story of Ashiq Hussain's earlier arrest and release.374 It took the

Court another two months after this to order an inquiry into Ashiq

Hussain's disappearance. Total time taken since the petition was filed:

nearly four years. The inquiry took a year to complete. The army did

not cooperate and, the Inquiry Judge attributed the delay in completing

the inquiry entirely to this account. Based on the testimony of the codetainee

and other eyewitnesses, the inquiry report held that Ashiq

Hussain had been arrested by the 20 Grenadiers and that his whereabouts

were since not known. Thereafter, the Court granted time to the

parties to file objections to the inquiry report. The Army filed their

objections within three months but the state government had not filed

its objections till February 2004, 17 months later. In March 2004, six and

a half years after it had been filed, the case was still pending.

IV. The Power to Order Inquiries

In the context of the overall abysmal showing, the inquiries appear as

the silver lining to the habeas corpus proceedings. Most of the inquiry

officers were judicial officers of the rank of a District and Sessions

judge. In a few cases the High Court ordered the administrative service

officers, such as the District Magistrate (later renamed the Deputy Commissioner) ,

to conduct the inquiries.375

The main thing for which one could fault the inquiry officers is the

inordinately long time that they took to complete the inquiries. In two

cases the inquiry took more than nine years to complete.376 In 52 of the

62 cases where an inquiry was ordered, it took more than one year to

374 Fortunately, this time the Court was not taken in by the reply and, asked the

counsel for the state government to file a relevant reply.

375 District level judicial officers lead relatively un-protected lives, compared

to the High Court judges, who are insulated from the reality of life in

Kashmir by their status as constitutional functionaries. On the other hand,

the District level judges work under severe pressure, risking their lives and

the lives of their families on a daily basis. These pressures are reflected in

many of the inquiry proceedings and must be factored in, while judging their

performance as Inquiry Officers.

376 In one of these two cases, the inquiry is still pending after nine years and

five months.

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complete. Many inquiry reports specifically record the non-cooperation

of the respondent security forces as the main reason for the delay in

completing the inquiry. However, this was not the only reason. Though

the Inquiry Judges were careful to exclude their own responsibility while

explaining the delays, the statements of the survivor families make it

clear that the course of proceedings in the courts of the inquiry officers

suffered from many of the same defects as the proceedings in the habeas

corpus petitions before the High Court.377 There were also several inquiries

where the judges bungled very badly, some examples of which

have been seen above.

Of the three cases discussed in this section, the first is an example of

an excellent inquiry. The second case illustrates how an inquiry

should not be conducted. The third inquiry is a mixed bag. On the

one hand it is, perhaps, the most thorough inquiry among the cases

examined by us. Because of this, the inquiry report reads like a

dissection of the design of impunity in Kashmir. On the other, the

Inquiry Judge succumbed to the temptation of overlooking the systemic

culpabilities exposed by his inquiry, being content to scapegoat

two officers of the state government, the DM Srinagar and the

SP (CID (CIK), on the basis of a gross misapplication of the principle

of command responsibility.378

In response to the petition filed on behalf of Basharat Shah (91/12),

both the state government and the CRPF denied his arrest.

However, the CRPF admitted the arrest of the four others

arrested along with him.379 Three of Basharat's co-detainees testified

before the inquiry ordered by the High Court into his disappear-

377 Sometimes the complainant is absent, sometimes the respondent. Sometimes

the judge is busy and, sometimes he is on leave. Sometimes there is a

strike and, sometimes nobody feels like working.

378 The High Court's final order in this case proves that it is familiar with the

concept of public law remedies, and the imperatives of such remedies.

Thus, the fact that it did not apply the principles of its public law jurisdiction

in other cases must be deemed to be a matter of active choice.

379 The CRPF showed the arrest of these four persons on the date on which

they were transferred to police custody. By that date Basharat had been

killed.

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ance.380 They identified him from his photograph, which was shown

to them in open court. All three were cross-examined by the then

Deputy Commandant of 50 Bn CRPF, Mr. ML Mina. Despite being

repeatedly ordered to do so, the CRPF refused to produce the then

Commandant and the Deputy Commandant of the 50 Bn. They also

refused to produce the officers of the patrol party, which had arrested

Basharat and the others. Initially, their excuse was that the

erstwhile commandant and his deputy had been posted somewhere

out of the Battalion. Later, they claimed that the whereabouts of the

then Commandant/ Deputy Commandant are not known to the

present officers. Finally, towards the end of the inquiry, the CRPF

informed the Inquiry Judge that the then Commandant and Deputy

Commandant of 50 Bn who were posted at Sopore at that time, have

proceeded on retirement/ are in the process of proceeding on retirement.

In another letter, the CRPF stated that higher ups had been

informed of the order to produce the two officials before him, while

reiterating that Sh. K.S. Pandey and Kewal Krishan, the then Commandant/

Dy. Comdt., respectively have already been retired from

CRPF service.

Nor did the CRPF cooperate in any other manner. They declined to

produce the Deployment/ Movement Register of their troops for the

month of October 1990, arguing that no such … registers are maintained

by the Battalion. However, in support of their contention that

they did not arrest Basharat, they filed a copy of a letter, addressed to

the Additional DIG, CID/ CIK, Srinagar, under cover of which they had

sent Basharat's co-detainees to JIC Srinagar, for further interrogation

and necessary action on 21.10.1990. The letter named the co-detainees

but made no mention of Basharat. The stand of the CRPF was that

50 Battalion personnel have not undertaken any patrolling/ operation

in area Sopore-Warpora road or any locality nearby on 12-10-

1990 and that they have not picked up on the said date or on any other

day the person named Syed Basharat Ahmad Shah.

380 Two inquiries were ordered by the High Court, one by the DM, Baramulla

and the other by the CJM, Sopore. The CRPF did not participate in the

inquiry by the CJM Sopore. The account given here is from the other

inquiry.

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The inquiry report, commenting upon the conduct of the CRPF, said that

it clearly indicates that they have applied dilly-dally tactics and did

not cooperate with me for finalisation of the findings. It held that,

nevertheless, there was sufficient material on record to conclude that

Syed Basharat Ahmad Shah … was picked up by CRPF 50th Bn on

12th October, 1990 along with four other persons mentioned above is

established, though his whereabouts are not known at the moment and

should be known to the said battalion itself.381

The case of Farooq Ahmad Khan (95/3) illustrates the failure of the

Inquiry Judge to draw a correct inference from the facts and the evidence

produced before him. In early 1995, Farooq Khan's family filed a petition

in the High Court with high hopes of justice. The 10 Bihar Regiment

filed a reply denying that they had carried out any operation in Farooq's

village on the date of his arrest.382 The State government filed a reply

stating that since the allegations in the petition are only against the

Central Government security forces, the State respondents were not

liable and were, therefore, entitled to be relieved of the burden of

defending the case.383

381 Back before the High Court, the police stated that they had completed the

investigation and, prepared a charge sheet against the officers accused of

disappearing him. In April 1997, six years after it was filed, the Court

disposed of the petition with a direction to the police to file the charge

sheet before the court of competent jurisdiction. The Court held that the

other reliefs (compensation) would be looked into after the trial. Basharat's

family appealed against this decision. It took another three years for this

appeal to be decided. Relying upon the Supreme Court's decision in the DK

Basu case, the Division Bench that heard the appeal rejected the vehement

objections of the respondents and directed them to pay Basharat's aged

parents rupees one lakh fifty thousand as compensation. Neither the Court

records nor Basharat's parents had information about the fate of the criminal

prosecution that it had ordered to be launched against the guilty officials.

382 The petition stated that Farooq was arrested from his native village. However,

he was actually arrested from his wife's home village, where he had

shifted after his marriage. His family was not aware of the error in the

petition. This error enabled the 10 Bihar Regiment to truthfully deny the

allegation that Farooq had been arrested from his native village on 1 December

1992. Not so truthfully, the reply also denied Farooq's arrest.

383 Around the same time, another lawyer for the State government also filed

objections stating that On the basis of information received … Farooq …

has not been arrested by any JICs of the state and is no longer in the custody

of respondents/ State. The petition therefore deserves to be dismissed.

135

Four witnesses deposed on behalf of Farooq in the inquiry. Since he

was arrested from his friend's house, his wife and father-in-law, though

living in the same village, were not eyewitnesses to his arrest. For the

same reason, his brother and brother-in-law were also not eyewitnesses

to his arrest. The counsel for the respondents used this factual situation

to elicit a response from all four witnesses to the effect that they

were not aware of the identity of the unit that had arrested Farooq.

Neither the lawyer on behalf of Farooq nor the Inquiry Judge had the

presence of mind to ask the witnesses appropriate questions that would

have elicited an answer that they had attributed the arrest/ custody to

the 10 Bihar on the basis of the two searches carried out by that unit in

Farooq's native village, in the presence of his brother and brother-inlaw,

and that Farooq was present in the village, in the custody of 10

Bihar, on both occasions. As a consequence, the inquiry report dated

22 January 2003 declared that the force/ unit that had arrested Farooq

could not be identified even as it acknowledged that He was brought (to

his village) under custody on 10.12.92. … He was in injured condition

and was not in a position to stand on his legs. … Since (then), he was

not seen by any one.384 The High Court did nothing to improve the

situation.385

Twenty five year old Mushtaq Ahmad Chacha (95/8) was arrested by

the soldiers posted at the BSF bunker/ post opposite his house on 9

July 1995.386 Neighbours who saw the arrest informed his family about it.

The family immediately went to the BSF post. In their presence, Mushtaq

was brought out of the bunker and put into an armoured vehicle and

taken away.387 The BSF told them that Mushtaq was being taken to the

384 A patent absurdity since if it was established that he was brought to his

village in custody, all that was needed was to ask the identity of the unit in

whose custody he was.

385 Observing that there is hardly any scope for pursuing the matter any further,

it disposed of the case with the remark that investigation needed to be

carried out and concluded in the report that had been lodged with the

police at the time of Farooq's arrest. The petitioner is at liberty to seek

remedy under the law if he has any better material or information on the

disappearance.

386 The incident actually took place on 8 July 1995 but Mushtaq's father told us

that the BSF claimed Mushtaq was arrested on 9 July 1995. For this reason,

he said, they too adopted the later date as the date of Mushtaq's arrest.

387 The friend was released.

136

Karan Nagar BSF camp and they should go there if they wanted to meet

him. The next day, at the Karan Nagar camp, the BSF admitted that

Mushtaq was in their custody and, showed him to his parents from a

distance. They were told to go to PAPA-II on 15 July, for a mulaqat

(meeting) with Mushtaq. In the meanwhile, they were permitted to leave

food and clothes for him.

On 15 July, the personnel at PAPA-II fobbed off Mushtaq's parents

saying that he had been taken on a mission. Later, they were told

that while being taken for arms recovery in the Kani Mazar (Srinagar)

area, the group was attacked by militants and, taking advantage of

the cross firing, Mushtaq had escaped. Over the next few weeks, his

mother went several times to PAPA–II but was not able to meet him.388

All other attempts to gain access to him, through senior officials of

the state government, also failed though she says that she and her

husband saw him at the Karan Nagar BSF camp in October 1995, a

few days before they filed a habeas corpus petition before the High

Court.

In their response to the petition the state government stated that

The subject Mushtaq Ahmad Chacha … was arrested in case FIR

No. 4/95 P/S CIK Srinagar on 12-7-95 … The subject escaped from

custody on 15-7-95. A case has been registered in P/S Baghyas

Srinagar vide FIR no. 92/95 … in this regard. This stand of the

state government was contradicted by the fact that on 27 September

1995, more than two months after his alleged escape, it had passed

an order detaining Mushtaq under the PSA for one year. The High

Court declared that it was highly regrettable to place on record

that the respondent/ State has filed palpably false affidavit regarding

the arrest and escape of Mushtaq Chacha and asked the State

government to show cause Why action should not be taken against

it for having committed perjury, by filing a false affidavit before the

court.

By way of explanation, Karnail Singh, ASP, CIK, Srinagar informed the

Court that after his arrest Mushtaq was remanded to BSF custody by

388 The family lodged a missing report at the local police station but the police

took no action to trace his whereabouts.

137

the police, as usual for a period of fifteen days.389 Simultaneously, according

to the police, they set in motion the process for booking Mushtaq

under the PSA, not knowing that he had escaped in the meanwhile. As

a result, it was stated, the PSA warrant remained unexecuted.390 Faced

with this gross contradiction, the High Court ordered an inquiry into

Mushtaq's disappearance.391

In a herculean effort, the Inquiry Judge examined numerous witnesses,

including several BSF personnel, in an attempt to unravel the truth.392 The

40 page long inquiry report discusses the respective stands of the parties

and, the testimony of the witnesses, in extenso, exposing the modus

operandi of the police and the security forces. The testimony of the BSF

witnesses about the operation during which Mushtaq is said to have

escaped only served to bring out the contradictions in the BSF's story.

Contradictions also emerged between the respective stands of the police

and the BSF. The police asserted that Mushtaq was arrested on 12 July

1995, on which date they registered an FIR against him, at the behest of

the BSF. Contradicting the record of the police, the BSF asserted that

Mushtaq was taken to Police Station CIK on 10th July 95 where FIR 4/

95 dt.10-7-95 was lodged and the said Mushtaq … was brought back to

TAC Headquarter 41 Bn. B.S.F.393 This contradiction was neither inquired

389 Remand has a clear meaning is law. It is 'taken' by the police or other

investigating agency and 'given' by a court, presided over by a judicial

officer. However, Mushtaq was never produced before any court. In a

perversion of meaning, the term was used to mean an informal arrangement

between the police and the BSF whereby the two agencies shared the illegal

custody of Mushtaq.

390 The explanation ended on a personal note by stating that the request for

the PSA warrant had been made by his predecessor in office and that he had

taken charge as ASP, CIK several months after the incident.

391 While all this was going on, a militant called Jajwaza (who was later killed),

resident of a neighbouring locality, told Mushtaq's family that he had been

in custody of the BSF at the same time as Mushtaq, and that Mushtaq had

died as a result of the torture inflicted upon him by the BSF personnel.

392 The case had become something of a cause celebre and, the Srinagar Bar

Association made special efforts to prosecute it.

393 Thus, based on their respective stands, the BSF asserted that Mushtaq was

remanded to their custody from 10 July to 25 July 1995, while the police

claimed his remand was from 13 July to 27 July 1995. When viewed in the

context of the family's statement that Mushtaq was actually arrested on 8

July, though the BSF showed his arrest as having been made on 9 July 1995,

it is obvious that no sanctity can be accorded to any assertion by the police/

state government, or the security forces.

138

into nor resolved. However, both the police and the BSF were agreed that

after his arrest, Mushtaq was kept in custody in JIC Fair View (PAPA-II),

which was stated to be an additional lock-up.394

The facts that emerged from the testimony of the BSF witnesses made it

seem as if Mushtaq's escape was part of the BSF operation:

Raj Kumar (rank not stated) asserted that Mushtaq was bound

with a rope and fetters, tied on the other side with the belt of

Nirmal Singh.

SI (Sub Inspector) Nirmal Singh, while admitting that Generally

they tie both hands of the person when they take him for conducting

a raid, said that only one of Mushtaq's hands was tied.

Contradicting Raj Kumar, he asserted that he was holding the

other end of the rope in his hand and, it was not tied to his belt.

He also asserted that Mushtaq was unmasked during the raid.

Constable P Selvaraj, however, said that they always mask the

"Cat" during a raid.

Some BSF witnesses said that the firing (under cover of which

Mushtaq was alleged to have escaped) took place on the main

road, while others denied this and said it happened in the lane off

that road.

Senior BSF officials claimed that the filing of the FIR regarding

Mushtaq's escape was delayed for several days because they

were searching for him but none of their witnesses supported

this stand. Deputy Commandant Raj Singh said that he was not

ordered to search for Mushtaq after the abortive raid.

Most of the BSF witnesses denied that a report was lodged with

the police and denied giving a statement to the police.

The testimony of the police and the State government witnesses was

equally revealing of the state of affairs:

The then Additional SP, CIK, AS Bali testified that Mushtaq remained

in BSF custody throughout while admitting that, in law,

custody of the accused is to be taken before the Magistrate.

The DM, Srinagar, who had signed the PSA warrant on 27 September1995

ordering Mushtaq's detention, admitted that he had

394 The State has the power to designate any place as a police lock up or a jail,

by notifying it as such.

139

signed the detention order on the assumption that the police

dossier submitted to him was based on facts. He stated that noone

brought to my notice that Mushtaq had escaped.

The witnesses on behalf of Mushtaq testified to his arrest by the BSF.

His parents stated that they had met him in the BSF camp at Karan Nagar

in October 1995, i.e. after the date on which the BSF claimed he had

escaped from their custody. Witnesses who either resided or worked in

the area where the encounter – in which Mushtaq allegedly escaped

supposedly took place, testified that there was no incident of firing or

encounter in that area on the date in question. They asserted that they

would have come to know if such an incident had taken place.

The inquiry report disbelieved the stand of the BSF, holding that the

version of B.S.F. seems to be a fabricated one. However, it castigated

the police, for its conduct in utter violation of the law and held the SP,

CID (CIK) mainly responsible for the custodial disappearance of

Mushtaq. It also held the BSF responsible for Mushtaq's disappearance,

finding their failure to take action against the officers responsible

for Mushtaq's alleged escape a suspicious circumstance.395 It also criticised

the DM, Srinagar for acting mechanically and for not caring to

ascertain whether Mushtaq was living at the time of passing of detention

order or not.

Back before the High Court, both the BSF and the police assailed the

inquiry report. The BSF's objections, on the one hand, challenged the

statement by Mushtaq's parents that they had met him in the Karan Nagar

camp in October 1995. On the other, using the PSA warrant issued by

the State government in September 1995 for a basis, they attempted to

argue that it appears that Mushtaq … was apprehended after his escape

from BSF and was lodged in Police Station C.I.K, Srinagar.396

395 He was not impressed by the BSF claim that a Departmental Staff Court of

Inquiry had not found anybody blame-worthy in the escape.

396 This argument held no water as the PSA warrant clearly stated that Mushtaq

was being held in the Addl. lock-up fair view, which was completely under

BSF control.

140

The focus of the state government's objections was on pointing out the

circumstances that shifted the blame on the BSF. They insisted that it

was only because of the failure of the BSF to inform them about

Mushtaq's escape that they committed the blunder of issuing a PSA

warrant against Mushtaq after he had escaped from the custody of the

BSF. They also emphasised the testimony which showed that Mushtaq

had remained in the BSF custody throughout, from the moment of his

arrest till his alleged escape. Lastly, they relied upon the testimony of

Mushtaq's parents to imply that the BSF was lying and that the Inquiry

Judge had erred in failing to appreciate this fact.397

The High Court termed the stands of the BSF and the Police self destructive

to reveal custodial disappearance of Mushtaq Ahmad Chacha …

Their conduct and actions have violated law … The attempt on the

part of State Police and the BSF to cover up or hush the matter is writ

large on record. The only conclusion to be drawn is that the Mushtaq

Ahmad Chacha has disappeared while in physical custody of the respondent

No. 3 [SP, CIK (CIK)], the main and chief culprit in the

matter. Conduct of the respondents is blame worthy and they cannot

escape the responsibility for custodial disappearance of the subject.

On the issue of compensation to Mushtaq's family for the wrong done,

the counsel for the State government and the BSF argued that they are

not liable to pay any compensation for violation of fundamental rights

guaranteed under article 21 and 22 of the Constitution. The remedy …

is under General Law in tort for damages in criminal law. The writ

jurisdiction of the court cannot be a substitute forum ….398

Quoting from various judgements of the Supreme Court, the Court held

that The case at hand is one of such cases where compensation … has

to be given under the public law jurisdiction for wrong of custodial

disappearance in breach of public duty by the Central or State Government

… having failed to protect the fundamental right of Mushtaq

Ahmad Chacha a … subject of the State and citizen of the (sic) India.

The Court also relied upon several judgements to arrive at a just quan-

397 A specious argument as the Inquiry Judge had definitely taken note of the

parents' testimony.

398 An untenable argument that was rejected by the judge.

141

tum of compensation and directed that rupees one lakh fifty thousand

be paid to Mushtaq's family by the respondents, within three months

from that date. The Court left it to the two governments concerned

whether to recover this amount … or part thereof from the officers or

personnel actually responsible for wrong done and in particular respondent

no. 3. Lastly, the Court directed that a criminal case be registered

at the concerned P/S, in case the … disappearance of Mushtaq …

is not covered by the FIRs lodged with the Police Station(s). The

investigation shall be taken to its logical conclusion … completed as

far as possible within a period of four months.399

V. The Power to Pass Judgement and Decree

In terms of classical habeas corpus jurisprudence, as laid down by the

Sebastian Hongray case, in every case where the inquiry held the security

forces responsible for the arrest, the very least that the Court was required

to do was to issue Rule.400 The failure of the security forces to produce

the body, after such further hearing as necessary, should then have resulted

in initiation of proceedings for civil contempt. This should have

been followed by appropriate punishment and/ or fine, etc. The Srinagar

Bench of the Jammu and Kashmir High Court did not follow this procedure

in even one case. Undoubtedly the fact that the Supreme Court,

itself, did not follow the procedure that it laid down in its judgement in the

Hongray case, choosing not to punish the guilty officers of the army,

without ascribing any reasons for showing such favour, must be treated

as a factor in the subsequent failure of the J&K High Court to enforce the

law.401

Most of the Court's failures have already been discussed above. To

conclude, I will briefly discuss one more aspect of the final orders of

the High Court, namely its propensity to dispose of cases (which in-

399 Needless to say, nothing was done in this regard.

400 A technical term entitling a case to an in-depth hearing.

401 That the Supreme Court continues to be soft on, even grave violations by

the security forces is seen from its recent judgement in the Masooda Parveen

case (AIR 2007 SC 1840), where it ignored grave lacunae in the defence put

up by the army and the state government to exonerate the army of the

charge of having killed him in custody.

142

cludes dismissing them) in the absence of the petitioners and/ or their

representative. As many as 29 cases were disposed of by the Court in

this manner. There can be no gainsaying that the Court's failure on this

count was, on the face of it, a grave miscarriage of justice.

For the Court to dismiss a habeas corpus petition where the inquiry

report returned a finding of guilt against an identified unit of the security

forces can never be justified. Even otherwise, it ought to have been

a rule of prudence that the Court should not dismiss a petition for habeas

corpus on the ground of absence of the petitioner's counsel, except

after verifying the reasons for such absence.402

It is also pertinent to recall that the High Court spent up to two years in

ensuring service upon the respondents, and the case records show that

the Court granted time repeatedly to the respondents for everything,

from filing of replies to addressing final arguments in the cases. On the

other hand, it displayed a marked intolerance for, even, the occasional

absence of the counsel for petitioner. In several cases the petition was

dismissed, or disposed of without any substantial order, on the ground

of non-prosecution or, with the remark that the petitioner did not seem

to be interested in pursuing the case.

To be fair, the outcome in these cases varied, and it may be that in some

cases the absence of representation on behalf of the petitioner did not

materially (or adversely) affect the decision. However, as we have seen

in the cases discussed above, in many cases one can make a direct correlation

between the absence of the petitioner's representative and the

incorrect final order passed by the Court. Be that as it may, there can be

no justification for such conduct, irrespective of the outcome. As the

High Court well knew, most of these cases had reverted to it after several

years before the inquiry court. During this interregnum, in many

cases the family had lost touch with the lawyer who had filed the petition

before the High Court since they had to engage a different lawyer to

conduct the case before the inquiry court.

402 Even in cases where the petitioner has been absent, consistently, over a

long period of time the court ought to have gone into the reasons for such

absence; to ensure that the withdrawal from the prosecution of the case is

not on account of undue pressure.

143

Since all the cases in this category have already been discussed above,

I will merely mention them here, with a one line reiteration of the consequences

of such disposal.

In Abdul Rouf Shah's (90/2) case, the Court abruptly dismissed the petition

after waiting for over eight years for the report of the COI which the

army had supposedly been holding to ascertain Rouf's disappearance.

In Manzoor Zargar's (90/6) case, the Court wrongly attributed lack of

interest to his family, while dismissing the petition. The case was actually

fixed for hearing the respondents' arguments on the question of

compensation.

In Latief Khan's (91/1) case, the inquiry report, on the basis of which

the Court dismissed the petition, wrongly stated (as per his family) that

they could not establish his disappearance despite being given several

opportunities.

In Abdul Rashid Sheikh's (91/3) case the inquiry report had wrongly

concluded that the identity of the arresting unit of the BSF could not be

fixed. The error might have been pointed out had there been representation

on his behalf.

Mohammad Ayub Dar (91/5) had been released by the time the petition

was disposed of by the High Court.

Had Syed Shariefuddin's (91/6) wife been represented, she might have

raised the issue of compensation, given the clear cut finding against the

BSF in the inquiry.

Parvez and Manzoor Shah (91/9) were released after one month of

illegal detention.

Aslam Mir (93/2) had been released by the time the Court disposed of

the petition

Bashir Ahmad Lone's (94/2) family had become completely disheartened

by the time their petition was dismissed by the Court.

144

As in Abdul Rashid's (91/3) case, Abdul Gani Najar's (94/6) case shows

the error of the Inquiry Judge in concluding that the accused unit remained

unidentified. It is reasonable to assume that this error would

have been pointed out had the petitioner been represented.

It is equally reasonable to assume that had Dr. Ghulam Hasan Sofi's

(94/5) family been represented, it would not have allowed the High Court

to ignore the inquiry report while disposing of their petition.

In Riyaz Gilkar's (95/4) case, the High Court ordered the registration of

an FIR 10 years after his disappearance when there existed a contemporaneous

police report of his arrest.

Ghulam Hassan Baba's (95/5) case was disposed of with a direction to

the police to register an FIR and to investigate it expeditiously.

Mohammad Amin Bhat (95/7) had been released by the time the High

Court came to dispose of the petition on his behalf.

Alam Sher's (95/9) case is a classic example of why a habeas corpus

petition should not be disposed of in the absence of representation on

behalf of the petitioner.

Once again, Ghulam Mohammad Ahangar's (96/4) case is proof, if

any was needed, of the culpability of disposal in the absence of the

petitioner.

The order in Javed Bhat's (96/5) case was similar to many others that

were passed in the presence of representation for the petitioner, i.e. registration

of an FIR. Ironically, in this case the police actually investigated

the case and prepared a charge sheet.

In Hamidullah Mir's (97/2) case, the Court assumed that he would

have been released since the maximum period of detention permitted

under the PSA had expired.

In Mohammad Akbar Rather's (97/3) case, the High Court termed his

enforced disappearance a disputed question though the inquiry had

clearly identified the officer (and the unit) responsible.

145

In Abdul Khaliq Pir's (97/5) case, the Court rejected the plea for compensation

(made in writing).

In Shahban Khan's (97/6) case, the Court wrongly jumped to the conclusion

that a chance absence of representation on behalf of the petitioner

was evidence of his lack of interest.

Manzoor Ahmed Dar's (98/2) case was dismissed twice in the absence

of representation on his behalf. The first time the family had it restored

by filing an appeal.

In Farooq Ahmad Bhat's (99/4) case, the Court suddenly changed tack,

ignoring its own previous order, while dismissing the petition.

As in Abdul Rashid's (91/3) case, Abdul Gani Najar's (94/6) case, and

Shahban Khan's (97/6), in a blatant display of its pro-state bias, the

Court wrongly concluded that Mohammad Rafiq Bhat's (99/5) family

was not interested in pursuing the matter.

Once again, the dismissal of Mushtaq Shagoo's (2000/169) petition

was a blatant display of pro-state bias.

Mohammad Yasin Bhat's (2000/171) case and Mushtaq Wani's (2000/

173) case illustrate the Court's growing penchant for unquestioned acceptance

of the State's word.

146

403 The questionnaire for recording the interview with the families contained a

section for noting the impact of the disappearance on the families. We

never became wholly comfortable with this section. On the one hand, the

rigour of the documentation required that we record only what was stated by

the families. On the other, it was acutely awkward to ask someone who was

hurting so patently to spell out their pain.

End Note

We have tried to portray the face of impunity through documented record.

For all the callous indifference that it shows, it does not fully convey the

agony of the survivors: the families of those who disappeared. It is

hard to describe the experience of interacting with the families. Their

emotions are something that we wanted to record; yet were not wholly

comfortable with. Whenever we came across a father or a mother or a

brother or a sister or a son or a daughter whose emotions were too intense

I recall being moved to tears and, then, pulling down my emotional

shutters. However, while we had the luxury of closing the window

and moving on, when the pain of raw wounds became too much to

bear, the families of the disappeared, who needed such space and ability,

had nothing. When one thinks of it, the thought of being the mother

of a disappeared son is unbearable.403

But interacting with those who have suffered a disappearance can change

one for ever. One is forced to participate in their emotional maelstrom:

the intensity of their anguish, the sense of complete helplessness, the

rage at it all. Many of those we met were visibly unbalanced: unable to

regain a rational perspective on life. But at the end of our field work we

marvelled that so many of them still retained their sanity.

The tragedy we have tried to document touches every one in Kashmir.

Each person's story is unique, yet typifying the state of things. The

"remedy", the writ of habeas corpus, is a complete failure in Kashmir.

It did not protect the right to life. Nor did it punish those who violated

it. What then was the purpose of these proceedings? They merely perpetrate

and perpetuate the myth of justice and, the myth of a functioning

judiciary. In a very large number of cases the identity of the unit was

duly established through the inquiry ordered by the Court. The Inquiry

Judge invariably proceeded on eye witness testimony and returned his

147

findings based upon the preponderance of possibilities that arose, on

the basis of evidence led before him. Yet, in not one case did the Court

succeed in bringing the criminals to book.

If the judicial remedy is a failure, the constitutional guarantee of the

right to life is suspect; since it subsists entirely at the mercy of the executive.

We are, then, faced with a conundrum: an executive that abides

by the rule of law does not violate the rights of the people. In such

States, the judiciary is not called upon to protect the rights of the people,

except occasionally. Where the executive does not respect these

rights, it becomes necessary for the judiciary to intervene and to restore

the balance of rights. In such States, however, more often than not, the

judicial remedy is ineffective.

Though the solution to the problem posed largely lies outside the realm

of judicial practice, it is obvious that there is much that ails the commitment

of the Indian judicial system to upholding the rights to life and, the

rule of law. It is patent that developing the necessary political resolve

to rid India of this lawless impunity will be a painful and a long drawn

out process. One can only hope that our justice system will support this

struggle in letter and spirit, dispensing justice upon offenders without

fear or favour. To quote Montesquieu—

Law should be like death, which spares no one.

2Part

150

Appendix – 1

Lahu Ka Suragh404

KaheeN naheeN hai, kaheeN bhi naheeN lahoo ka suraagh

Nah dast-o naakhun-e qaatil nah aasteeN peh nishaaN

Nah surkhi-e lab-e khanjar nah rang-e nok-e sinaaN

Nah khaak par koi dhabbha nah baam par koi daagh

KaheeN naheeN hai, kaheeN bhi naheeN lahoo ka suragh

Nah sarf-e khidmat-e shaahaaN keh khoonbahaa daytay

Nah deeN ki nazr keh baiaana-e jazaa daytay

Nah razm gaah mayN barsa keh mu'tabar hota

Kisi 'alam peh raqam ho kay mushtahar hota

Pukaarta raha, bay asra, yateem lahoo

Kisi ko behr-e samaa'at nah waqt tha nah damaagh

Nah mudda'ee, nah shahaadat, hisaab paak huwa

Yeh khoon-e khaak nasheenaaN tha rizq-e khaak huwa.

Faiz Ahmad Faiz

404 An excellent translation is given on the next page.

151

In Search of Vanished Blood

There is no sign of blood, not anywhere.

I've searched everywhere.

The executioner' s hands are clean, his nails transparent.

The sleeves of each assassin are spotless.

No sign of blood: no trace of red,

not on the edge of the knife, none on the point of the sword.

The ground is without stains, the ceiling white.

This blood which has disappeared without leaving a trace

isn't part of written history: who will guide me to it?

It wasn't spilled in service of emperors -

it earned no honour, had no wish granted.

It wasn't offered in rituals of sacrifice -

no cup of absolution holds it in a temple.

It wasn't shed in any battle -

no one calligraphed it on banners of victory.

But, unheard, it still kept crying out to be heard.

no one had the time to listen , no one the desire.

It kept crying out, this orphan blood,

but there was no witness. No case filed.

From the beginning this blood was nourished only by dust.

Then it turned to ashes, left no trace, became food for dust

Faiz Ahmad Faiz405

405 Translated by Agha Shahid Ali.

152 Appendix –

2

Table: Personal and Detention Details

Note: Information tabulated states circumstances at time of the arrest connected with the petition filed before the High Court (where such a petition

was filed), except in cases of those persons who were released subsequent to the filing of the petition. For those who were subsequently killed, in another

incident, some of the information – in parenthesis – pertains to their (changed) circumstances at the time they were killed. For those who are still alive,

the information in parenthesis pertains to their (changed) situation on the date they were interviewed (2003-2004)

1990/ Gowhar Amin, s/o Mohd. (25) Matric; Single (1) 07.05.90 Not filed Released/ Not known Petn. filed by mother on behalf

0001 Amin, r/o Sidiqabad, Shopkeeper (at time [Targeted] Killed (State govt & of 10 people including Gauhar.

Lachmanpora, Magarmal of petn.) police, resp. 1 to 5) Released in '92. Killed on 8.4.93.

Bagh, Srinagar

1990/ Abdul Rouf Shah; s/o 25 MA in Arabic Single NA 21.05.90 FIR dt. Disappeared 6 Rajput Reg. – 68 Army claimed Rouf released;

0002 Ghulam Quadir Shah, r/o & English; [Home- 20.8.91, u/s Mountain Brigade. admitted keeping brother

Chak Drugmulla, Kupwara Patwari Targeted] 364, 365 RPC (Not a resp. though hostage for over 2 weeks

UOI through MOD to ensure Rouf returned to

is resp.2) their custody.

1990/ Mohd Maqbool Bhat; s/o 18 Student Single NA 21.07.90 DD dt. 29.10.90. Disappeared CRPF Picked up from bus stop, along

0003 Habibullah Bhat, r/o – 12th class [Street- FIR dt. 21.7.92 (Tortured) (resp. 4) with class mate, who was

Gangbugh, Batmaloo, Random] u/s 365/ 264 released. Father spent last 13 years

Srinagar (364?) RPC of his life fighting for justice.

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

153

1990/ Waheed Ahmed Ahangar;s/o 14 Student - Single NA 26.05.90 FIR dt. Disappeared BSF 141 Bn Family met him in custody

0004 Mohd Maqbool Ahangar; r/o 8th class [Home- 1.5.98, u/s (Tortured) (resp. 3) several times; arranged by

Lal Bazar, Botshah Mohalla, Targeted] 364 RPC DGP, IB officer and, others.

Bakshi Bagh, Srinagar Was subjected to severe torture.

1990/ Abdul Hamd Beig; s/o (35) Non literate; Single NA 02.12.90 Not filed Released. BSF/ CRPF Psychologically affected

0005 (late) Ghulam Mohd Beig;r/o Welder at [Street- (Tortured) (resp. 4 & 5) by torture. Not "normal"

Khanyar, Srinagar family shop Random] even after 13 years.

1990/ Manzoor Ahmad Zarger; s/o 22 9th pass; Daily Single NA 15.07.90 FIR 50/99 Disappeared BSF Co-detainee reported

0006 Mohd. Sidiq Zarger; r/o wager with Dept [Street- dt. 10.6.99 (Tortured) (resp. 5) Manzoor was severely

Mohalla Akhoon Sahib, of city drainage Identified by tortured. Father died 2

Gojwara, Srinagar and papier CAT(?)] months after disappearance.

mache artisan

1991/ Latief Khan; s/o 45 4th pass; Married 10 14.07.90 FIR dt. Disappeared CRPF 46 Bn An ex-serviceman, retired

0001 Yakub Khan; r/o Fruit business [Home- 16.7.90 and local police after 24 years in the army.

Chandanwari, block and shop owner Targeted] (CRPF resp. 6)

Boniyar, Uri; Baramulla

1991/ Mohd Ramzan Wani; s/o 25 Non-literate; Married 5 04 (05).09.90 DD dt. 26.7.92; Disappeared BSF 132 & 76 Bn Infant son beaten up. House

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

154

0002 Lassa Wani (Gh Rasool);r/o Tailor, with [Crackdown- converted to (Tortured) (76 Bn BSF resp. 2) and shop looted/ destroyed.

Mohalla Asthan, Tikkipora his own shop. Home-Targeted] FIR u/s 365 RPC Wife lives alone with small children.

village, Lolab, Kupwara

1991/ Abdul Rashid Sheikh; s/o 25 9th class; Married 2 25.11.90 DD dt. 1.2.95 Disappeared BSF 24 Bn Firing on BSF from village. All

0003 Abdul Khaliq Sheikh; r/o Carpet business [Home-Retaliatory (resp. 5) villagers fled as retaliation was

Kirpal Gard, Singhpora crackdown] certain. Rashid one of few who

(Matipora?), Pattan, stayed back as mother was

Baramulla ill (cancer). Arrested.

1991/ Malik Nissar Ahmad Shah;s/o 38 Matric; Married 1 20.07.90 FIR dt. Disappeared CRPF 53 Bn CRPF admitted arrest and custody

0004 Ghulam Rasool Shah; r/o Watchmaker [Home- 22.11.90 u/s Verinag, CRPF before Gen Zaki, who was visiting

Verinagh, Anantnag & proprieter of Targeted] 451, 365 RPC 19 Bn 'C', SICOP, Verinag, about two years after

watch shop (Filed by wife) Bijbehara. (resp. 3) arrest. Family searched every

where, visiting all major

jails in India.

1991/ Mohd Ayub Dar; s/o (25) Not known; Single NA 05.05.91 Not filed Released Delhi police Arrested in a TADA case in

0005 Haji Abdul Ahad Dar; r/o Family [Delhi- (Not a resp.) Delhi. Sentenced. Released

Rawalpora, Budgam (construction) Regular arrest] in Nov 2002 on bail.

business

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

155

1991/ Syed, s/o 30 BA Arabic, Single NA 17.06.91 Not filed Disappeared BSF (resp. 1) Co-detainee reported

0006 Syed, r/o Kashmir Univ.; [Crackdown- (Tortured) Shariefuddin was severely tortured.

Ziarat, Batamaloo, Srinagar Also did Imamat Random]

1991/ Zafarullah Beig; s/o (54) Govt. Treasury Married Not known 16.08.91 Not filed Released 6/8 Unit Bandi Rare case of a person who

0007 Ahmad Beig; r/o Uri, Teh. Uri, Accountant [Office- (resp. 2) took on the army and survived.

Baramulla Targeted]

1991/ Mohd Yousuf Wahloo; s/o (25) Non-literate; Single NA 20.07.91 Not filed Released/ Not known Detained under PSA. After

0008 Abdul Aziz Wahloo; r/o Carpet weaver [Village- Killed (State and release in 94-95 resumed

Kripalpora, Wahyal, Tehsil - crackdown- police are resps.) work as a carpet weaver.

Pattan, Baramulla Random] Killed in an encounter in 1997.

1991/ 1. Parvez Maqbool Shah s/o (25) Not known; Married No 19.12.90 Not filed Released Army – unit not Arrested by nearby army

0009 Shams-ud-din Shah; r/o Accountant, (2 arrestees) (Tortured) known. (Resps. unit which carried out a

Mathan By Pass, J&K Public [Home- are State, police, crackdown on their locality

Budgam Sector Crackdown- BSF and CRPF). after being fired upon from

2. Manzoor Ahmad Shah; s/o (22) Corp. Single NA Retaliatory] that direction. Released

Shams-ud-din Shah; r/o Not known; after a month.

Mathan By Pass, Wholesale cloth

Budgam merchant.

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

156

1991/ Farooq Ahmad Bhat; s/o 18 10th class Single NA 22.06.91 Not filed Disappeared BSF 102 Bn Was tending his shop (inside the

0011 Abdul Ahad Bhat; r/o student; Also [Shop-Retaliatory (resp. 3) colony) when arrested during

Hyderpora, Waza-bagh; helped in his crackdown] a retaliatory crackdown after

City & Distt.; Srinagar father's shop. a grenade attack on the

BSF on the main road.

1991/ SyedBasharatAhmedSh ah; s/o 26 Doing PhD Single NA 12.10.90 DD dt. 11.1.91; Disappeared CRPF 50 Bn Co-detainees reported Basharat

0012 Syed Mohd Amin Shah; r/o at AMU [Highway- FIR (dt. not (Tortured) (resp. 3 & 4) was tortured to death.

Ziarat, Batmaloo; City & Random] known) u/s 364,

Distt. Srinagar 365 RPC

1992/ Mohd Abdullah Bhat (Tari); s/o (68) MA Urdu, Married 5 26.09.92 Details not known Released BSF 19 Bn President of Jamiat E' Ahle

0001 Molvi Abdul Hamid; r/o B.Ed; High [Work place- (resp. 4 & 6) Hadis J&K, chairperson

Alyalpora, Shopian; Tehsil- school teacher Targeted] Tehrik e Hurriyat. Now with

Shopian; Distt. - Pulwama (since retired) Democratic Freedom Party.

1992/ Sajad Ahmad Bazaz; s/o 22 Matric; Single NA 12.02.92 DD dt. Disappeared BSF 30 Bn Sanction case. Arrested at

0002 Ghulam Ahmad Bazaz; r/o Shop keeper [Shop-Targeted] 12.2.92; FIR (resp. 2 & 3) behest of CAT attached to

Hazratbal; City & Distt. dt. 27.6.92 u/s the BSF, who owed Sajad money.

Srinagar 344, 365 RPC

Remarks

Detaining

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Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

157

1992/ Syed Amjad Ali Byhaqi; s/o (29) Student: Single NA 30.11.92 Not filed Released Garhwal Reg. Released.

0003 Syed Abdul Rashid Byhaqi; r/o Ist year [Crackdown] (resp. 4)

Khanwari, Zaldagar, Engineering

Srinagar course

1992/ Farooq Ahmad Najar; s/o (30) Non-literate; Single NA 02.04.92 Not filed Released BSF (resp. 5) Surrendered militant. Has spent

0004 Abdul Razak Najar; r/o Shop keeper [Street-Targeted] time in jail under PSA. Subjected

Safa Kadal, Srinagar to repeated arrests around 15

August, every year.

1992/ Riyaz Ahmad Khan; s/o 17 11th class Single NA 21.01.92 DD dt. 22.1.92 Disappeared 5 Guards CO of 5 Guards rebuked

0005 Wali Mohd.; r/o student [Home- FIR (not party, though family saying - you have

Danger Mohalla, Crackdown] dt. 23.3.99 u/s Chief of Army Staff sent him to Pakistan and are

Peth Seer, Tehsil - 302, 342, 201 and UOI (Home) falsely accusing us.

Sopore; Baramulla RPC are resp. 3 & 4)

1993/ Mohd. Aslam Mir; s/o (22) Car Single NA 27.08.93 Not known Released 10 Garhwal as Was 12 years old at time of

0002 Jali Mir; r/o mechanic [Crackdown- (Tortured) per family arrest. Unable to work

Bemina; City & Targeted] but not made because of torture.

Distt. Srinagar resp. (BSF resp. 6)

1993/ Nazir Ahmad Sofi; s/o 19 BSc 1st year Single NA 15.10.93 FIR dt Disappeared BSF & RR 1, Had gone to the market in

Remarks

Detaining

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Arrested/

Disappeared

Dt. & Place

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of Arrest

Released/

Killed/

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FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

158

0003 Ghulam Qadir Sofi; r/o student [Retaliatory 3.11.93 u/s (Tortured) RR 2 & RR 3 connection with family business

Mohind; Tehsil- Bijbehara, crackdown] 302, 376 & (resp. 3 BSF) (fruit trade). Soldier killed

Anantnag 354 RPC. in IED explosion. Police

Another FIR report mentions over 60

in 2002 injured/ raped/ arrested in

retaliatory crackdown.

1993/ Nazir Ahmad Gojar; s/o 14 Non-literate; Single NA 26.01.92 FIR dt. Disappeared 5 Dogra Regiment Sanction case. Village

0004 Isril Khan Gojar; r/o Worked as a [Village- 7.5.96 u/s 302, (not a party though approachable only through

Gojar Pathi, Malangam, goatherd. Retaliatory 342, 109 RPC Corps Commander, army camp. Mother has

Tehsil - Bandipora, crackdown] Northern Command extraordinary courage and

Baramulla and UOI are persistence.

resp. 3 & 4)

1994/ Mohd Ayoub Bhat; s/o 18 Non-literate; Single NA 25.06.92 Complaint Disappeared 10 Garhwal Family withdrew petn.

0001 Abdul Rehman Bhat; r/o Carpet weaver [Mohalla- dt 6.8.92; (Tortured) (resp. 5) from court once they were

Anchar, Soura, Srinagar Crackdown] DD no. 20 granted ex-gratia and

dt 29.1.94 SRO 43-benefits.

1994/ Bashir Ahmad Lone; s/o 20 9th pass; Single NA 14.07.92 Not filed Disappeared 4 Grenadiers Victim of a renegade

0002 Ghulam Mohd Lone; r/o Employee of [Street- (resp. 5) militant's ire, as he refused

Mohalla Kandozab, PHE Dept. Targeted] to pay him protection

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

159

village Warson (kashmiri), money.

Kupwara

1994/ Mohd Yousuf Wani; s/o 31 Graduate; Married 1 25.05.93 Not known Released Security forces Arrested when house where he

0003 Abdul Rehman; r/o Electrical [Street- (Only State & its was lodging temporarily

Zoowora, Khanmoh, fitter Random] agencies are resps.) was raided. Unacknowledged

Srinagar arrest converted to detention

under PSA after some months.

1994/ Qazi Khurshid Ahmad (29) Matric; Single (2) 05.06.94 Details not Released 3 Grenadiers, Surrendered militant.

0004 Malkar; s/o (Now Maulvi (at time of [Village- known (Tortured) Panzgam (resp. 5) He was 19 at time of arrest

Mufti Mohd. Israil; r/o Fazil; arrest) Crackdown] & unmarried. Father was

Gojar Patti, Zurhama, contractor) murdered by militants.

Kupwara Ex-gratia relief was granted for

this. (Now Block president (NC)

Trehgam.)

1994/ Ghulam Hassan Sofi; s/o 45 RMP; Married 4 02.07.94 DD dt. 2.7.94 Disappeared 9 PARA & 3 RR About 1 year

0005 Ghulam Mohd. r/o Also Medical [Home- (9 PARA is resp. 5) before arrest he was

Seer Hamadan, shop owner Targeted] investigated by army

Aishmuqam, Anantnag and, certified as

innocent.

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

160

1994/ Abdul Gani Najar; s/o 22 Non-literate; Married 2 21.11.90 DD dt. Disappeared Army from Severely ill, unable to

0006 Lassi Najar (Gh Rasool Carpenter [Home- 22.11.90 (Tortured) Baramulla. move, when arrested.

Najar); r/o Crackdown] (resp. 4 – Thrown down from FF

Fidarpora, PS Panzla, PO Army Hqs.) room. Sister traumatised

Dangiwacha (Rafiabad), by his disappearance,

Tehsil - Sopore, Baramulla died of a heart attack

within 6 months.

1994/ Manzoor Ahmad Wani; s/o (38) 11th class; (Married) (4) 03.06.94 Not filed Released BSF (not a party) Surrendered militant. Wwas

0007 Ghulam Mohd (Ahmad?) Shopkeeper [Surrendered kept in illegal detention for

Wani; r/o Pakharpora, during encounter] 6 months, and then held

Bon mohalla, Tehsil - under PSA for 1 year.

Chadoora, Budgam

1995/ Khizir Mohd Bhat; s/o 32 9th pass; Married 6 29.10.94 [Village Not known Disappeared Garhwal Rifles, Army denied custody till

0002 Abdul Samad Bhat r/o Shopkeeper & -Crackdown] (Tortured) 2 Bn (resp. 3) released co-detainees

Ali Bagh, Tehsil - Sopore, carpet weaver informed family of his

Baramulla place of detention. Family

saw him in custody. Had

been severely tortured.

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

161

1995/ Farooq Ahmad Khan; s/o 32 Not known; Married 2 01.12.92 DD? FIR Disappeared 10 Bihar (Wrongly The pleadings of this case

0003 Ghulam Ahmad Khan; r/o Nanwai [Village- dt. 1.12.92 (Tortured) written as 'Behara' illustrate the inadequacy of the

Lawayapora, Tehsil - (Kashmiri Targeted] in petn.) adversarial format of litigation

Bandipora, Baramulla baker) (resps. 6 & 7) in habeas corpus matters.

1995/ Riyaz Ahmad Gilkar; s/o 22 Student- BSc Single NA 25.04.94 DD dt. Disappeared 2 RR (resp. 5) Brother says Riaz is

0004 Mohd. Subhan; r/o 2nd year; [Village- 25.4.94 still alive. Claims he

Dabruna, Anantnag Part time Crackdown] has seen him in

mechanic several army camps over

the years.

1995/ Ghulam Hassan Baba; s/o 34 Non-literate; Married 7 07.07.94 FIR dt. 8.7.94. Disappeared 9 PARA (resp. 2) Abjectly poor family.

0005 Abdul Ahad Baba; r/o Farmer [Street- Ex-gratia and SRO

Amad - Wagad, Tehsil - Targeted] benefits given.

Pahalgam, Anantnag

1995/ Fayaz Ahmad Bhat; s/o 22 5th pass; Single NA 18.12.93 DD dt Disappeared 33 Mountain Brig Resembled a militant

0006 Abdul Rehman Bhat; r/o Tailor [Home- 19.12.93; and 39 Div. Not of nearby village whom

Kilamgund; Tehsil - Crackdown] FIR, dt. 17.3.95 a party though the army was seeking.

Kulgam; Distt. Anantnag u/s 302 RPC UOI (Home) is Brigadier personally assured

resp. 4 DM he would be released.

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

162

1995/ Mohd Amin Bhat; s/o (27) Not known; Single NA May 1995 Not filed Released/ Jat Regiment First arrested on "return" from POK

0007 Lassi Bhat; r/o Auto driver [Village- Killed (Not a party since in '92. Became inactive on

Durbugh; Tehsil - Crackdown] (Tortured) after arrest was release. Arrested again during

Chadoora, Budgam transferred to JIC crackdown. (Petn. pertains

run by BSF) to this arrest.) Released in

Sept '96. Left home in July

'01. Killed in encounter

(genuine) on 6.1.02

1995/ Mushtaq Ahmad Chacha; s/o 25 7th pass; Single NA 08.07.95 Missing Disappeared BSF 41 Bn BSF claimed he had

0008 Ghulam Mohd. Chacha; r/o Kabari wallah [Street- report (resp. 4 & 5) escaped from their

Mehraj Gunj, Srinagar (dealer in scrap/ Targeted] dt. 20.7.95 custody.

old utensils)

1995/ Alam Sher; s/o (late) Mohd Not Not known Not -- 11.10.94 DD dt. 6.5.95 Disappeared Gorkha Case of gross negligence

0009 Yaqoob alias Solen; r/o known known [Not known] Regiment/ Rifles by army/ inquiry judge/ HC

Bhadurkote, Tehsil - (7/8 GR is resp. 2)

Karnah, Kupwara

1995/ Sheikh Gowhar Ayub; s/o 19 Student - Single NA 04.08.95 DD dt. 12.9.95 Disappeared Jat Regiment Picked up because the CO of the

0010 Ghulam Mohd. Sheikh; r/o 1st year BSc [Home-Random] 7 Bn (resp. 4) army patrol did not like his beard/

Batamaloo, Srinagar dress. (Another case-99/4)

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

163

1996/ Ghulam Mustafa Khan; s/o (23) Student Single NA 24.02.96 Not filed Released/ RR 34 Bn (resp. 3) One of Kashmir's most famous

0001 Abdul Razak; R/o (when arrested). [Home- Killed militants. When this petn. was filed

Goigam, Tehsil - Pattan, Later- militant. Targeted] he was in early teens. Family

Baramulla paid Rs 1.50 lakh towards

his release on that occasion.

1996/ Abdul Hamid Dar; s/o 26 4th pass; Married 3 29.12.95 DD dt. 1.4.96. Disappeared RR 28 Bn (resp. 4) Family met him in custody.

0002 Ghulam Mohd. Dar, r/o Tailor [Home-Targeted] FIR dt. 10.5.96 (Tortured) Condition was so bad they

Puliharan, Gulistan, u/s 346 RPC thought he was dead but soldiers

Baramulla assured he would recover.

1996/ Farooq Ahmad Shalla; s/o 18 Student - Single NA 26.06.95 Details Disappeared RR 22 Bn One of 27 boys arrested at the

0003 Ghulam Ahmed Shalla, r/o 9th class; [Border-Targeted] not known. (resp. 3) border, 11 disappeared. (Related to

17 Upper Soura, near Also helped in 96/5 & 96/6) Family has an army

Soura petrol pump, family carpet list (stamped and signed) of

Srinagar business detainees, which contains Farooq's

name. Cases expose ugly

underbelly of militancy in the valley.

1996/ Ghulam Mohd Ahangar; s/o 23 Mill worker/ Married 1 10.06.92 [Street- FIR dt Disappeared BSF 30 Bn Mother died of trauma 3 months after

0004 Ali Mohd Ahangar; r/o Carpenter Random–Retaliatory 28.4.97 u/s (Tortured) (resp. 4) his disappearance. Wife has remarried

Yek Bug, Budgam crackdown] 302, 201 RPC torture.Co-detainee s testified to severe.

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

164

1996/ Javaid Ahmad Bhat; s/o 17 Student- Single NA 26.06.95 Details Disappeared RR 22 Bn Related to 96/3 and 96/6. Family

0005 Bashir Ahmed Bhat; r/o 10th pass; [Border- not known (resp. 3) has an army list (stamped

H. No. 160, New Colony, Also, carpet Targeted] and signed) of detainees, which

Soura, Srinagar cleaningbusiness contains Javaid's name.

1996/ Tariq Ahmad Rather; s/o 14 5th pass; Single NA 26.06.95 DD dt. Disappeared RR 22 Bn Related to 96/3 and 96/5. Family

0006 Ghulam Nabi Rather; r/o Bus [Border- 5.12.95 FIR u/s (resp. 3) has an army list (stamped and

H. No 167, New Colony, conductor Targeted] 361, 302 RPC signed)of detainees, which

Soura, Srinagar contains Tariq's name.

1996/ Shabir Hussain Bhat; s/o 19 5th pass; Single NA 26.04.96 FIR dt. Disappeared Garhwal Rifles Mother abducted by militants, who

0007 Ghulam Mohd. Bhat; r/o Carpet weaver [Street-Random- 27.4.96 u/s (not known if accused her of being an informer.

Patlipora, Sajadabad, Crackdown] 364, 342, 464, made a party) Family said he developed

Chattebal, Srinagar 302, 201 RPC links with the militants to

counter this threat.

1997/ 1. Nazir Ahmad Malik; s/o 1. 34 1. BA, . 1. Married (1) 3 04.04.97 Details 1. Body found SOG-STF, Greater Kashmir & TOI reported

0001 (late) Abdul Gani Malik, r/o teacher (2 arrestees) not known in the Jhelum, Srinagar Nazir as "military advisor" of JUM.

Bragam, Tehsil - Dooru, [Street- Uri (resp. 3 to 9) From facts it seems that one of the

Anantnag; Targeted/ arrests (several persons were

2. Mohd Shafi Shah; s/o 2. 18 2. Student 2. Single (2) NA Random] 2. Disappeared arrested) was targeted while

Ali Mohd Shah r/o Meernag BSc 1st year others were arrested randomly.

(Hyhama), Kupwara

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

165

1997/ Hamid Ullah Mir; s/o Not Not Not -- 04.09.94 Not filed Not known Security forces Address not traced. As per petn.

0002 Sonaullah Mir; r/o known known known [Not known] (Not made party. unacknowledged arrest converted

Chanapora, Tehsil - Only State & to detention under PSA. Petn. filed

Chadoora, Budgam agencies are resps.) under mistake of fact re date of release.

1997/ Mohd. Akbar Rather; s/o 24 Graduate; Married 1 28.11.96 DD dt. Disappeared RR 8 Bn Family said army was looking for a

0003 Mohd Subhan Rather; r/o Teacher [Home 14.12.96 (Tortured) (resp. 3) neighbour with the same name

Tantray Mohalla, Palhalan, -Targeted] but different surname (member

Tehsil - Pattan, Baramulla of Jamiat I' Islami) , when they

arrested Akbar Rather.

1997/ Javed Iqbal Kemu; s/o Not Not Not not 02.12.96 Not filed Disappeared 20 RR [Not a party, Custody proved by evidence

0004 Abdul Hafiz Kemu; r/o known known known known [Street] but 20 Grenadiers, of those whose houses were

Haripora, Tehsil - RR(camp) Bemina, raided, with Kemu

Bhaderwah, Doda Srinagar is resp. 5] accompanying the raiding party.

1997/ Abdul Khaliq Pir, s/o 35 8th pass; Married 3 03.09.90 FIR dt. Disappeared CRPF 50 Bn Brother-in-law a militant.

0005 Mohd Syed Peer; r/o Imam & [Home-Targeted 5.4.92 and (Tortured) (resp. 6 & 7) Picked up from in-laws

Haerpora, Guroora, Tehsil- teacher in /Random] dt. 26.3.02 u/s home, probably as a hostage.

Bandipora, Baramulla a private 346 RPC Wife had just had a baby.

school. Sister Naseema died of trauma

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

166

1997/ Mohd Shabhan Khan; s/o 45 Matric, Married 7 16.04.97 Details Disappeared 20 Grenadiers Shahban Khan and his son

0006 Mohi-ud-din Khan; r/o with Islamic [Home-Targeted/ not known (resp. 3) Yehya were both arrested and

Pattanpora, Naslapora education; Sand Random] disappeared. Yehya was a

(Nasrulla Pora?), Budgam seller and part militant and had spent 2 years

time Imam in jail under PSA.

1997/ Bashir Ahmad Bhat; s/o 26 9th pass; Married 3 25.11.95 FIR dt Disappeared 12 MLI - (Two petns.) Surrendered militant.

0007 Nabir Bhat (Gh Nabi Bhat);r/o Family [Home-Targeted] 12.3.96 u/s Mirgund, Code name "Lal Budha". Army

VPO Kuligam, Lolab, business of 346 RPC Kuligam. claimed he was working for them.

Kupwara rice husking. (resp. 3) Traumatised by disappearance,

Also owned land. mother died in 1997 of a heart attack.

1997/ Abdul Rashid Wani; s/o 35 Non-literate; Married 3 07.07.97 Details Disappeared 2/8 Gorkha Police refused to register case.

0008 Abdul Samad Wani; r/o Truck driver Street-Random] not known Rifles (resp. 5) Army produced Clearance

87, Gousia Colony, Certificate given by police as

Bemina, Srinagar proof of its "innocence".

1997/ Ashiq Hussain Malik; s/o 16 Student - Single NA 23.05.97 Details Disappeared 20 Grenadiers Had spent 18 months in jail

0009 Mohd Subhan Malik; r/o 12th class. [Home-Targeted] not known. (Tortured) (resp. 3 & 4) under PSA as a 13 year old; grenade

Peer Bagh, Hyderpora, Dt. 24.5.97 found in his room. Family said

Srinagar guns and grenades as freely

available as vegetables then. This

arrest attributed to a CAT with whom

Ashiq Hussain had quarrelled.

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

167

1997/ Mohd Shafi Dar; s/o Not School Single NA 05.09.97 Not filed Don't know JKLI & STF There was some doubt as

0010 Abdul Gani Dar; r/o known boy [Not known] (JKLI is resp. to whether we had met

Rambagh, Srinagar 5, STF is resp. 3) the right family.

1997/ Fayaz Ahmad Khan; s/o 25 9th pass; Single NA 02.08.97 FIR dt. Disappeared STF (resp. IO expressed doubt about

0011 Abdul Aziz Khan; r/o Mason & [Home- 3.8.97 5 & 6) identity of accused police

Haka Bazar, Hawal, shawl seller Targeted] unit. HC misread this to

Srinagar mean that factum of arrest

was not established.

1997/ Mohd Afzal Shah; s/o 37 Graduate; Married 3 26.04.97 Details Disappeared BSF / STF Brother was a militant. Afzal

0012 Ghulam Nabi Shah; r/o Imam of [Home-Targeted] not known. [9 RR as per probably arrested as a hostage.

Darapora, Thanna Rindan Shah Dt. 27.4.97 BSF personnel Brother arrested and killed 2 weeks

Shopian, Tehsil Kulgam, Masjid, at Dalgate] after Afzal's arrest. Sister died of

Anantnag Srinagar (BSF is resp. 8) heart attack induced by trauma.

1997/ Abdul Ahad Malik; s/o 40 Non-literate; Married 2 24.05.97 DD dt. 22.6.97u/s Disappeared 8 Rajputana Large group of villagers assaulted

0014 Assadullah Malik; r/o Employed [Home-Targeted] 365 RPC Rifles (resp. 2) when they sought an explanation

Dolipora, Baramulla in PHE Dept, for Abdul Ahad's arrest.

Tangmarg

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

168

1998/ Nisar Ahmad Wani; s/o 17 8th pass; Single NA 30.03.97[Home- DD dt. 30.3.97. Disappeared 20 Grenadiers One of 15 known cases of

0001 (late) Ghulam Ahmad Wani; r/o Tailor Crackdown- FIR dt. 13.4.97. (Tortured) and 35 RR disappearance between 29 Mar.and

New Colony, Batamaloo, Random] FIR dt. 5.1.01 u/s (resp. 4 & 5) 23 May '97 by 20 Grenadiers. (Based

Srinagar 364 RPC. on letters by police to army)

reported here.

1998/ Manzoor Ahmad Dar; s/o 23 7th pass; Single NA 30.03.97 DD dt. Disappeared 20 Grenadiers Arrested along with Bilal Sheikh

0002 Ghulam Nabi Dar; r/o Automobile [Street- 17.4.97. (resp. 4) (2003/9) One of 15 cases of

Gangbug, Tengpora, mechanic Random] disappearance by 20 Grenadiers

Srinagar in Mar - May '97.

1998/ Bashir Ahmad Wani; s/o 24 Not Single NA 18.11.97[Targeted- Not known Disappeared PS Pampore State govt. said he had fled across

0003 Ghulam Nabi Wani; r/o known; Produced (Tortured) (resps. 4 to 6) the border. Family denied.

Mandakpal, Tehsil - Stone at PS on SHO's Was due to be married in

Pampore, Pulwama carver orders] a few days. Linked to 98/8.

1998/ Ghulam Qadir Pandith; s/o 38 5th pass; Married 7 22.05.98 DD dt. 3.6.98. Disappeared 13 Garhwal Reg. Worked as a guide in border

0004 Abdul Rahim Pandith; r/o Vegetable [Street-Retaliatory (Tortured) (resp. 5) areas. Army said he was a

Bijehama, Tehsil - Uri, seller/ crackdown] militant of Al Umar. Police

Baramulla labourer report confirmed torture.

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

169

1998/ Fayaz Ahmad Khan; s/o 25 Not known; Single NA 25.11.97 Not filed Disappeared 197 Field Reg. Army claimed he was a

0005 Haji Abdul Rahman Khan, r/o Truck driver [Home- (resp. 3) "casual source" and had not

Pantha Chowk, Srinagar Targeted] been arrested.

1998/ Manzoor Ahmad Ganai; s/o 23 Non-literate; Single NA 05.04.95 DD dt. 6.4.95 Disappeared BSF 34 Bn, Arrested in broad daylight,

0007 Mohd Shabir Ganai; r/o Mini-bus [Street- Rajbagh, Srinagar in full public view. Mother

Methan, Lal Nagar, Chadoora, conductor; Crackdown] (resp. 2) died of heart attack in 1996.

Tehsil - Chadoora, Budgam before that tailor Sister developed heart disease.

1998/ Bashir Ahmad Bhat, s/o 23 Non-literate; Single NA 24.11.97 Not filed Disappeared PS, Pampore State govt. said he had fled across the

0008 Fateh Ahmad Bhat, r/o Stone carver [Targeted- (Tortured) (resp. 6 & 7) border. Family denied this allegation

Mandakpal; Tehsil - Produced at PS as he was seriously disabled, and

Pampore, Pulwama on SHO's orders] walked with difficulty. Linked to 98/3.

1999/ Abdul Aziz Tantray; s/o Abdul 32 Primary Married 6 10.06.98 Details Disappeared BSF 145 Bn (resp. 3) Gave up militancy, tried to live in

0001 Rahim Tantray; r/o Sher Bagh, school; [Home- not known (Tortured) [21 RR & CRPF also, hiding. Caught through informer.

Tehsil - Pattan, Baramulla Carpet weaver Targeted] as per family]

1999/ Abdul Majid Guroo; s/o 38 9th pass; Married 5 22.12.98 Missing report dt. Disappeared Police (Baramulla) Family said Majid was arrested at

0002 Ghulam Mohd Guroo; r/o Owned a [Home- 22.12.98FIR (Tortured) and 2 SPO's. the behest of some STF men who

131 Naseem Bagh, Seer saw mill Targeted- dt. 6.3.99 u/s (resps. 3 to 5) owed him a lot of money for timber

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

170

Road; Tehsil - Sopore, Retaliatory] 365, 344 RPC. they had bought. Severe financial

Baramulla constraints forced them to drop the

habeas corpus proceedings.

1999/ Mushtaq Ahmd Khan, s/o 25 Not known; Married 4 13.04.97 FIR dt. Disappeared 20 Grenadiers, One of the cases in which one

0003 Mohd Sultan Khan, r/o Casual [Home- 17.4.97 (Tortured) (resps. 3 to 5) Subedar Nazar Mohd. (20

Tengpora, Batamaloo, employee Targeted] Grenadiers) is alleged to have

Srinagar Social Forestry taken money for securing

Srinagar the release of the detainee.

1999/ Farooq Ahmad Bhat; s/o 29 Non-literate; Married 2 24.05.90 Details Disappeared BSF Allegedly arrested because he had

0004 Mohd Jabbar Bhat; r/o Daily wage [Street- not known (resp. 5) a beard. (Another case 95/10) One

Nowgam, Natipora (Nowgam, labourer; Random] of several 'interview slip' cases; eg.

Banapora, near Jamia tailoring in Waheed Ahangar (90/ 4)

Masjid), Budgam spare time. and Latief Khan (91/1).

1999/ Mohd Rafiq Bhat; s/o 19 Not known; Single NA 19.08.92 DD dt. 20.8.92 Disappeared BSF 69 Bn Another 'interview slip' case.

0005 Abdul Rehman Bhat; r/o Carpet weaver [Home- FIR dt. 14.11.96 (resp. 5) Other cases: Waheed Ahangar

Qutubudinpora, Nowhatta, Crackdown- u/s 302, 364, 201 (90/ 4), Latief Khan (91/1) and

Srinagar Random] RPC Farooq Bhat (99/4).

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

171

1999/ Abdul Rashid Ganai; s/o 28 9th pass; Married 4 05 (or 06).01.99 DD dt. 13.1.99. Disappeared BSF 131 Bn, Surrendered in 1998. Released by

0006 Mohd Akbar Ganai; r/o Labourer [Home-Targeted] FIR dt. 11.7.01, STF (BSF is security forces. Local SHO said to

Kulangam, Tehsil - u/s 364 RPC resp. 2) have had personal enmity with

Handwara, Kupwara Ganai. Allegedly responsible for his

disappearance.

1999/ Mohd Qasim Khoja; s/o (23) 7th pass; Single NA 17.10.97 Not filed Released STF Kupwara, Surrendered militant. Militants

0007 Ghulam Hassan Khoja; r/o Tailor [Home- (Tortured) BSF, CRPF considered him too young to carry

Andok Patti, village Targeted] (Only State and arms; worked as messenger.

Dardpora, Kupwara DGP are resps.) Subjected to severe torture

for 1 year by security forces.

1999/ Mushtaq Ahmad Dar; s/o 25 Not known; Single NA 13.04.97 Details Disappeared 20 Grenadiers Family paid Subedar Nazar Mohd.

0009 Ghulam Mohd Dar; r/o Auto driver, [Home- not known (Tortured) (resp. 4) Rs. 20,000 for releasing Mushtaq

Tengpora, Bemina, with own auto Targeted] (see also 99/3); which they

Srinagar demanded and got back since he

did not keep his word.

1999/ Dar; s/o 28 5th pass; Married 2 20.04.97 FIR dt. 5.1.01 u/s Disappeared 20 Grenadiers Arrested in '92. After release in '94,

0019 Abdul Razak Dar; r/o Shopkeeper [Home-Targeted] 364 RPC (Tortured) gave up militancy. Family says he

Tengpora, Batmaloo, had an enmity with a neighbour

Srinagar who had threatened to get him kiled.

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

172

2000/ Mushtaq Ahmad Shagoo;s/o Not Not Not NA 02.11.00 Not filed Disappeared Unidentified

0169 Haji Habib-ullah Shagoo;r/o known known known [Home- persons in police

Channapora, Srinagar Targeted] uniform (State &

police are resps.)

2000/ Mohd Yaseen Bhat; s/o 26 Graduate; Single NA 02.03.00 DD dt. 3.3.00 Disappeared Uniformed Family believe his arrest

0171 Ghulam Mohd Bhat; r/o Accounts [Street- FIR dt. 17.5.00 security forces was the outcome of a

Malik Sahib, Nowhatta, clerk in a Targeted] u/s364 RPC (Police – resps. malicious complaint.

Srinagar carpet factory; 1 & 3; Army –

Also, Imamat resp. 2)

2000/ Ghulam Qadir Sheikh; s/o 40 Non- Married 6 08.03.00 DD dt. 30.3.00 Disappeared 14 Rajput (resp. (2 petns. filed on his behalf.) Family

0172 (late) Abdul Subhan Sheikh; r/o literate; [Home- FIR dt. 9.8.00, (Tortured) 2 in petn. saw him every day but not allowed

Kralpora-gund (near Shawl Targeted] u/s 346 RPC 1 and resp. to speak with him. Looked as if he

Kralpora), Kupwara business & 3 in petn. 2) had been tortured. The CO

owned land demanded, and was supplied,

huge quantity of walnuts

and almonds.

2000/ Mushtaq Ahmad Wani; s/o 27 Non-literate; Married 1 09.08.00 DD dt. 29.3.01 Disappeared RR 29 Bn, Surrendered in 1992.

0173 Mohd Sultan Wani; r/o Tailor [Street- FIR dt. 2.4.01, F Coy (resp. 6) Local politician involved

Dangar Mohalla, Peth Seer, Targeted] u/s 346 RPC. in arranging his arrest

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

173

Tehsil - Sopore, Baramulla even as he took money

from Wani's family for

negotiating peace with the army.

2000/ Abid Hussain Dar; s/o (17) Student - Single NA 24.07.00 In Oct.- Nov. '96. Disappeared 15 JKLI (resp. 2) Crossed into Pakistan in

0174 Abdul Razak Dar; r/o 8th class [Border Details '96 as a 13 year old.

Narwara Idgah, Srinagar (when he left arrest] not known. Was caught crossing

home in 1996) back into India.

2000/ Ali Mohd. Dar; s/o 35 Non-literate; Married 3 07.03.98 Not filed Disappeared 23 RR (resp. 2) Unofficially, army

0175 Abdul Ahad Dar; r/o Farmer [Home- claimed he had escaped

Village Batpora, Mohalla Targeted] from their custody.

Banpora, Magam; Tehsil -

Handwara, Kupwara

2000/ Shabir Ahmad Ghasi; s/o 29 Non-literate; Married 2 22.01.00 DD dt. 3.7.00 Disappeared 2 RR & STF Connected with 2000/180

0179 Ghulam Nabi Ghasi; r/o Fruit vendor [Home- [6 RR Hafrada,

Boat Colony, Bemina, Targeted] Taratpora – as

Srinagar per police report]

(RR is resp. 4)

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

174

2000/ Abdul Hamid Badayari; s/o 28 10th pass; Married 3 21.01.00 FIR dt. 23.1.00 Disappeared 6 RR and STF Connected with 2000/179.

0180 Ali Mohd; r/o Gowkadal, Auto driver [Street-Targeted] (resp. 5 - RR) Family said he was

near Shalimar Press, associated with militancy

Srinagar about 4 years before

his arrest.

2003/ Ejaz Ahmad Sheikh; s/o 14 6th pass; Single NA 20.8.99 Details Disappeared Not Left home for work, never

0002 Abdul Hamid; r/o Apprentice [Street] not known. known returned. No petn.. Family

Ikhrajpora, Radio Colony, denter/ said surrendered militants

Jawahar Nagar, PS painter & BSF had been

Rajbagh, Srinagar pressurising Ejaz to work

with them.

2003/ Firdous Ahmad Khan; s/o 19 7th pass; Single NA 20.8.99 Details Disappeared Not Left home for work, never returned.

0003 Noor Mohd Khan; r/o Motor [Street] not known. known No petn.. Was arrested in 1994-95,

Ikhrajpora, Radio Colony, mechanic 14/ 15 years old, during a

Jawahar Nagar, PS Rajbagh, crackdown, tortured; arm

Srinagar permanently damaged; detained

under PSA for 2 years.

2003/ Imtiaz Ahmad Wani; s/o 22 9th pass; Nikah NA 15.5.96 Dt 16.5.96. Disappeared BSF & No petn.. Family claims it

0004 Ghulam Mohd @ Gul Employed done [Home- Details Informers has seen him on TV,

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

175

Wani; r/o Rustom Colony in office of Chief Targeted] not known. standing guard behind a

(Ikrajpora), Rajbagh, Conservator politician.

Srinagar of forests

2003/ Mohd Akbar Sheikh; s/o 20 8th pass; Single NA 19.4.90 Filed in 2002. Disappeared Not Family stated that Akbar Sheikh's

0005 Ghulam Nabi Sheikh; r/o Daily (Left home on Details known photo was published in Chattan

Hatmulla, Drugmulla, wage that day; never not known. newspaper, in July 2001 (without

Kupwara labourer returned) a name) as the photo of a person

[Street – Random] who had been in detn. for over 10

years. Claim they filed a petn.

before the HC but could not pursue

it due to financial constraints.

2003/ Bashir Ahmad Sofi; s/o 22 4th pass.; Single NA 17.6.03 BSF & Disappeared BSF & No petn. Family said they

0006 Abdul Ahad Sofi; r/o Shawl vendor [Home- Kashmir police Kashmir police were too poor to cope with

Mohalla Daribal, in winter, Targeted] the expense.

Naidkadal, PS Khanyar, utensil

Srinagar maker in summer.

2003/ Ali Mohd War; s/o 36 Non-literate; Married 6 July-August 2000 Not known Disappeared. Not known No petn.. Had gone to Srinagar

0007 Abdul Sattar War; r/o Carpet [Street] on business. Body recovered

Nowlari (Khore), Tehsil - business from Dal Lake several months later.

Pattan, Baramulla

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

176

2003/ Mohd Syed Tambakoo; s/o 24 10th pass; Married 1 24.5.92 Disappeared. Not Arrested while watching a

0008 Mohd Abdullah Hawker of [Street] Known cricket match at Polo

Tambakoo; r/o Koker electrical grounds, Srinagar.

Bazar, Lal Chowk, goods No petn.. Wife has

Srinagar remarried.

2003/ Bilal Ahmed Sheikh; s/o 20 12th pass; Single NA 30.03.97 DD dt. Disappeared 20 Arrested along with

0009 Ali Mohd Sheikh; r/o Salesman Street- 17.4.97. Grenadiers Manzoor Dar (98/2).

Gangbugh, Tengpora, Random] Family did not file petn..

Srinagar for fear of antagonising army.

2004/ 1. Mohd Shafi Rah; 32 1. Primary 1. Single NA 27-28.08.00 Details Both Nepal police and Two brothers, lifted from Nepal.

0001 school; [Home not known Disappeared Indian police in Petn. in Delhi High Court.

2. Mushtaq Ahmad Rah; 2. 9th pass; 2. Single -Targeted] plain clothes. Shafi had moved to Nepal

Both s/o Abdul Ahad Rah; r/o Both had a after he quit militancy.

Sheikh Mohalla, Mehrajgunj, leather goods

Srinagar business in Nepal

2004/ Ghulam Mohammad Sofi; s/o 45 Matric; Married 2 16.08.00 Details Disappeared Nepal police and Lifted from Nepal where

0002 Mohd Sultan Sofi; r/o Family [Home- not known Indian police in he had lived and worked

Sheikh Mohalla, business Targeted] plain clothes. for 28 years.

Watel Kadal, Shah Kadal, in Nepal.

Srinagar

Remarks

Detaining

Unit

Arrested/

Disappeared

Dt. & Place

Circumstance

of Arrest

Released/

Killed/

Disappeared

FIR/DD

Date

Name Education

S. No. & Age & Marital Children

Address Occupation Status

177

Appendix – 3

Table: Time Line

S. No.

1990/

0001

1990/

0002

1990/

0003

1990/

0004

Status -

Sept. '04

Pending

Dismissed

Disposed

Pending

Time Taken

13 years

6 months

11 years

12 years

13 years 2

months

No. Of

Hearings

38

25

22 +(Orders

missing)

37

Notice

Service

- Time

1 week

2 months

5 months

7 months

Obj._by

Accused

- Time

1 year 2

months

1 year 8

months

11 months

Objs. not

filed.

State

Govt. Obj.

- Time

1 year 2

months

Not Filed

11 months

2 years

Inquiry

Report

- Time

No Inquiry

1 year 3

months

6 months; 1

year 6

months

3 years

Objs. To

Inquiry

Report

- Time

NA

Objs. not

filed

1st Inquiry:

1 year

5 months;

2nd Inquiry:

not known

1year 9

months

Accused Participation

in Inquiry

NA

Yes. Statements of some accused

(army) recorded.

1st inquiry: Affidavit by CRPF.

Statement by police. Records produced

by police. 2nd inquiry:

Counsel for CRPF appeared but

did not participate in proceedings.

Yes. BSF filed "brief" statement

of facts; no details. Also produced

a witness and one document.

Remarks

LPA staying proceedings before the Single judge

Pending for over 10 years.

HC simultaneously issued notice to army and,

asked SP, Kupwara to investigate and report. SP's

report is based almost entirely on statement by

army personnel. So, it is identical to the objs. filed

by army before HC. What is the worth of such an

investigation/ report by the SP?

1st inquiry report set aside because CRPF claimed

it was not allowed to produce evidence to rebut the

allegations against it. CRPF did not participate in

2nd inquiry, despite repeated requests by IO. Compensation

ordered by HC, hotly contested by both

state govt. and CRPF.

Objs. by State were said to have been filed but

were not found on record. Similarly, state govt. said

it had filed objs. to inquiry but not found on record.

178

1990/

0005

1990/

0006

1991/

0001

1991/

0002

Pending

Disposed

Dismissed

Dismissed

13 years

10 years 10

months

12 years 2

months

11 years 4

months

19

76

9 +(Orders

missing)

19

2 months

1month

6 months

4 months

Objs. not

filed.

Over 5 years

Objs. not

filed.

Objs. not

filed.

1 year 6

months

5 years

2 years

1 year 2

months

Inquiry

pending for 8

years 10

months.

1year 11

months

3 years 6

months +

8 years 3

months

Report

pending

8 months

Objs. not

filed.

Objs. not

filed

Not known. Inquiry pending.

Yes. Statement of facts by BSF.

Witnesses cross examined by

BSF.

No. Resps. appeared but did not

participate in proceedings.

No. BSF did not appear.

Empty case. Objs. by the State were said to have

been filed but were not found on record. Detainee

released inquiry still pending; HC petn. still pending.

The case order sheet notes that accused unit filed

objs. after 5 1/2 years, when the inquiry was ordered.

Petitioners contradicted the inquiry report, which

stated that they had failed to prove arrest. They

stated that they were never given an opportunity to

lead evidence of arrest by the IO.

DM, Kupwara appointed IO. Inquiry report sent to

HC but not traceable in court's registry. In addition

to request (to DM) for a duplicate copy, HC said DJ,

Kupwara be asked to help obtain a copy from DM.

Registry turned this into a demand that DJ send

copy of report of inquiry entrusted to him. Resulting

confusion took several years to resolve.

S. No.

Status -

Sept. '04

Time Taken

No. Of

Hearings

Notice

Service

- Time

Obj._by

Accused

- Time

State

Govt. Obj.

- Time

Inquiry

Report

- Time

Objs. To

Inquiry

Report

- Time

Accused Participation

in Inquiry

Remarks

179

1991/

0003

1991/

0004

1991/

0005

1991/

0006

1991/

0007

Disposed

Disposed

Disposed

Disposed

Dismissed

12 years 3

months

12 years 2

months

10 years

12 years 2

months

9 years 5

months

29

19

17

23

77

5 weeks

2 months

6 weeks

6 weeks

2 months

Objs. not

filed.

Objs. not

filed.

Objs. not

filed.

1 year 6

months

3 years 7

months

8 months

Not filed

Not filed

2 year 2

months

Not filed

9 years

8 years 2

months

1 year 7

months

7 years 4

months

No Inquiry

Objs. not

filed

Objs. not

filed

Objs. not

filed

Objs. not

filed

NA

Yes. Statement of facts by BSF

but no cross examination of witnesses;

nor rebuttal evidence.

Yes. Counsel for UOI (CRPF) appeared

but did not participate in

proceedings.

Yes. Statement made admitting

custody.

Yes. BSF cross examined witnesses,

and produced own witnesses.

But records not produced.

NA

IO declared that identity of unit responsible for the

disappearance could not be ascertained despite

testimony on record that co-detainees were released

by 24Bn BSF.

The inquiry in this case (filed by mother) was

completed in Oct. 2002 but it took HC 7 months

to take note of it. (A separate petn. was filed by

the detainee's wife in which the State did file

objs., denying arrest by the police.)

The GA made an oral statement denying arrest. Before

inquiry it was revealed that detainee arrested in

TADA case in Delhi; detained in Tihar jail. Inquiry

report dated 12.8.96 not received by HC. Case disposed

of in 2001 based on oral statement by GA.

It took the HC registry 8 months to place objs. filed

by BSF on the Court file.

HC took 3 years and 10 months to declare that the

State's right to file objs. was closed.

S. No.

Status -

Sept. '04

Time Taken

No. Of

Hearings

Notice

Service

- Time

Obj._by

Accused

- Time

State

Govt. Obj.

- Time

Inquiry

Report

- Time

Objs. To

Inquiry

Report

- Time

Accused Participation

in Inquiry

Remarks

180

1991/

0008

1991/

0009

1991/

0011

1991/

0012

1992/

0001

Dismissed

Disposed

Disposed

Disposed

Disposed

12 years

4 years 3

months

Not known

9 years 6

months

10 years 4

months

13

22

17 +(Orders

missing)

22 + (In

habeas

corpus

petn.)(Orders

missing)

1 + +(Orders

missing)

7 weeks

3 weeks

1 month

2 weeks

Not Known

1 year 8

months

Objs. not

filed.

Objs. not

filed.

6 months +

Objs. not

filed.

1 years 8

months

1 year 3

months

6 months

6 months +

1 year 6

months +

8 years 8

months

No Inquiry

No Inquiry

CJM inquiry:

2 months DM

inquiry: 8

months +

Not known

Objs. not

filed

NA

NA

2 months

Not Known

No. Proceedings dropped as petitioner

stated his son had been

killed (subsequent to release) by

the army.

NA

NA

No- 1st inquiry: Yes- 2nd inquiry:

CRPF represented, cross examined

witnesses but concerned

officers not produced. Records not

produced.

Not known. Report not available.

Despite being informed of the facts, HC dismissed

the case for want of instructions from the petitioner.

Empty case. Objs. filed without affidavit; which

was filed several months later. Court noticed the

affidavit only in its final order, 3 years later.

The case was dismissed after 1 year and 9

months, but the order was quashed by a DB and

sent back to Single judge. File pertaining to subsequent

proceedings not traceable in HC. (Family

had lost hope and given up on the case.)

Single judge disposed of petn. after 6 years rejecting

request for compensation. Took another 3

years + for family, in LPA, to reverse this order. 10

years after disappearance DB awarded Rs. 1.5

lakhs as compensation.

Empty case. Petn. disposed of with order of inquiry.

No information available on record after that.

S. No.

Status -

Sept. '04

Time Taken

No. Of

Hearings

Notice

Service

- Time

Obj._by

Accused

- Time

State

Govt. Obj.

- Time

Inquiry

Report

- Time

Objs. To

Inquiry

Report

- Time

Accused Participation

in Inquiry

Remarks

181

S. No.

Status -

Sept. '04

Time Taken

No. Of

Hearings

Notice

Service

- Time

Obj._by

Accused

- Time

State

Govt. Obj.

- Time

Inquiry

Report

- Time

Objs. To

Inquiry

Report

- Time

Accused Participation

in Inquiry

Remarks

1992/

0002

1992/

0003

1992/

0004

1992/

0005

Dismissed

Dismissed

Pending

Disposed

11 years 10

months

8 years 7

months

12 years

6 years 7

months

101 +(Orders

missing)

8

8

2 + +(Orders

missing)

3 weeks

1 month

not known

Not Known

1 - 2 yr

Objs. not

filed.

Objs. not

filed.

Objs. not

filed.

1 year

1 year 3

months

2 years 6

months

Not filed.

10 months

7 years 2

months

(Inquiry

dropped)

Inquiry

pending for 9

years 5

months, as

on April 2004

2 years

Objs. not

filed

Objs. not

filed

Inquiry

pending

Not Known

No. Counsel for BSF present but

did not particiopate in proceedings.

Addl Chief Secy J&K admitted

arrest by BSF.

Not known. Empty case. Report

not available.

Not known.

Empty case.

Inquiry Pending

Yes. Resp. 3 (army) & 4 (UOI) produced

witness. Petitioner's witnesses

were cross examined.

HC refused to restrain BSF from holding parallel proceedings

against accused officer (in which he was

acquitted of all charges), despite fervent plea by petitioner.

Thereafter, sanction to prosecute the accused

was denied by the central govt. on the ground that the

BSF Act prohibited fresh prosecution of an officer

who had been tried (and acquitted) under the said Act.

Arrestee's family stopped pursuing the case after

his release. Case (and inquiry) remained pending

till HC was apprised of the fact of release by the

arrestee's counsel.

Released. 8 years 2 months after inquiry was

ordered, IO informed the HC that no inquiry was

pending before him. Without enquiring into the

matter HC merely re-ordered the inquiry, which

was still pending in March '04.

Based on inquiry report, HC ordered concerned PS to

register an FIR. SSP asked to supervise investigation

and ensure completion of investigation as quickly

as possible. FIR registered. Nothing thereafter.

182

S. No.

Status -

Sept. '04

Time Taken

No. Of

Hearings

Notice

Service

- Time

Obj._by

Accused

- Time

State

Govt. Obj.

- Time

Inquiry

Report

- Time

Objs. To

Inquiry

Report

- Time

Accused Participation

in Inquiry

Remarks

1993/

0002

1993/

0003

1993/

0004

1994/

0001

Disposed

Pending

Disposed

Dismissed

9 years 1

month

10 years 3

months

9 years 3

months

10 years

14 +(Orders

missing)

5

57

18 +(Orders

missing)

1 month

(approx)

2-3 months

9 months

1 month

I year 3

months

Objs. not

filed.

Objs. not

filed

Objs. not

filed.

1 year 11

months

1 year 5

months

Not filed.

2 years

3 year 7

months

NA. Inquiry

ordered but

not held

1 year 8

months

7 years 11

months

Objs. not

filed

NA

1 year

Objs. not

filed

Yes. Statement of facts filed by

resps. 4 (SP CID CIK) & 6 (BSF).

Petitioner did not appear. Empty

case.

NA

No. Resps. 3 (army) & 4 (UOI) remained

absent.

Not known. Inquiry dropped.

Released. State denied detainee in any JIC of

State, though he was being held under PSA and

in an FIR. IO sent report in Sept.'99 but not received

by HC. Resent in Feb. '02.

Inquiry was ordered in May '95 and numerous

reminders were sent over the next years but in

March '04 the IO replied to say that his office had

never received the file in this case. (Rest of the

order is illegible but in April '04 Court registers

showed case as pending. Therefore, reasonable

to assume that HC re-ordered the inquiry.)

Inquiry report identified the unit (and officers) responsible.

Police completed investigations and

filed charge sheet. For 5 years thereafter, the

various state and central govt. departments dilly

dallied on the issue of sanction to prosecute the

officers. Sanction refused in 2002.

No specific accused named in petn., just security

forces. Inquiry proceedings dropped on request

of the family.

183

S. No.

Status -

Sept. '04

Time Taken

No. Of

Hearings

Notice

Service

- Time

Obj._by

Accused

- Time

State

Govt. Obj.

- Time

Inquiry

Report

- Time

Objs. To

Inquiry

Report

- Time

Accused Participation

in Inquiry

Remarks

1994/

0002

1994/

0003

1994/

0004

1994/

0005

Disposed

Disposed

Disposed

1st petn.-

dismissed;

2nd petn.-

Disposed

7 years 6

months

10 months

8 years 7

months

1st petn.- 8

years 8

months; 2nd

petn.- 3 years

5 months

24

2 + +

(Orders

missing)

13

1st petn.-15

2nd petn.- 11

1month +

Not Known

1month

1st petn.-1

month; 2nd

petn.- 7

months

2 months +

5 months

Objs. Not

filed.

1st petn.- 2

years; 2nd

petn.- 8

months

1 year 7

months

5 months

[Objs. not

found on

record.]

1 year 2

months

1st petn.- 2

years; 2nd

petn.- 1 year

3 months

1st inquiry: 8

months2ndinquiry:

Pending for 3 years

10months

Not Known

3 - 4 months

(Reached HC

6½ years later)

2nd petn.- 1

year 6

months (1

inquiry held

though HC

ordered it in

both petns.)

1 year 3

months; NA

NA

Objs. not

filed

Objs. not

filed in both

petns.

No- 1st inquiry: Resps. 3 (UOI), 4

(Corps command) & 5 (4 Grenadiers)

did not appear despite summons.

2nd inquiry: report pending.

Not known. Empty case.

Yes. Empty case.

No. Army – 9 PARA – did not participate.

After deliberately not participating in the inquiry,

army filed objs. to inquiry report claiming that accused

unit was in Dehradun at time of arrest. Without

castigating the army for its failure to present its

case before the IO, the HC ordered a fresh inquiry.

Released. Petn. disposed of with order of inquiry.

No further information on record. State filed objs.

admitting custody, but these were ignored by HC,

which ordered an inquiry.

Inquiry report sent to HC was not received. Took

six years for the HC to obtain another copy.

Two petns. filed. 2nd petn. disposed of before 1st

petn. In 1st petn. objs. were dated 3.11.94, signed

before the Oath Commissioner on 25.10.95, filed

several months thereafter and, noticed by HC in

order of 2.7.96. After reading the inquiry report, which

indicted the accused army unit, HC ordered yet

another inquiry by an IO based over 100 KM away.

184

S. No.

Status -

Sept. '04

Time Taken

No. Of

Hearings

Notice

Service

- Time

Obj._by

Accused

- Time

State

Govt. Obj.

- Time

Inquiry

Report

- Time

Objs. To

Inquiry

Report

- Time

Accused Participation

in Inquiry

Remarks

1994/

0006

1994/

0007

1995/

0002

1995/

0003

Disposed

Dismissed

Disposed

Disposed

8 years 7

months

8 years 6

months

8 years 2

months

8 years 3

months

13

2 + +(Orders

missing)

29

20

1 month

Not Known

5 months

1 year

Objs. not

filed.

Objs. not

filed.

Objs. not

filed.

1 year 1

month

1 year 1

month

1 year 2

months 2

weeks

2 years 3

months

3 years 8

months

1year3months

(ReceivedbyHC

after 6 years 10

months)

4 months (not

received for 7

years)

4 years 6

months

2 years 8

months

Objs. not

filed

Objs. not

filed

7 months

Objs. not

filed

No. Security forces not served

because of a lack of complete

address. Information also not provided

by the police.

No. Empty case. Proceedings

dropped after detainee informed

IO of his release after completion

of detention under PSA.

Yes/ No. Garhwal Rifles (resp. 3)

did not participate. SHO Pattan

(resp. 4) filed objs., produced evidence

and witnesses & cross

examined petitioner's witnesses.

Yes. Resps. 4 to 8 (army, 10 Bihar,

UOI) filed statement of facts. Petitioner's

witnesses cross-examined.

No evidence adduced.

Inquiry report not received by HC. It took the HC

over 5 years to obtain a 2nd copy of the report.

Released. All orders not available. Inquiry report

was completed in 4 months but it took 7 years for

it to be placed before the Court.

SHO Pattan claimed he had "put" Khizir Bhat in

a passing truck that was going towards his home.

However, Bhat never reached home. SHO produced

2 "witnesses" in support of his contention.

Father disbelieved story but was helpless as IO

accepted it.

Resp. 7 - main accused - not served for more than

a year. Others served within 2 weeks. However,

objs. filed by resp.7 dated 8 months prior to being

filed.; i.e. they were prepared and kept ready for

filing till service of notice had been formally effected.

185

S. No.

Status -

Sept. '04

Time Taken

No. Of

Hearings

Notice

Service

- Time

Obj._by

Accused

- Time

State

Govt. Obj.

- Time

Inquiry

Report

- Time

Objs. To

Inquiry

Report

- Time

Accused Participation

in Inquiry

Remarks

1995/

0004

1995/

0005

1995/

0006

1995/

0007

Disposed

Disposed

Disposed

Disposed

9 years 1

month

8 years 1

month

7 years 9

months

6 years 8

months

17+(Orders

missing)

13

21

7

2 months

3 months

3-4 months

4 months

4 months +

3 months +

I year 7

months

5 months

1 year 5

months

Not filed.

Not filed

5 months

6 years

5 years 9

months

1 year 7

months + ; 2

years 8

months

Inquiry not

held.

1 year

6 months +

1st inquiry:

Objs. not

filed; 2nd

inquiry: 7

months +

NA

No. RR (resp. 5), did not participate.

No.

1st inquiry: No 2nd inquiry: No.

Counsel for UOI/ army appeared

on some dates but did not participate.

Inquiry not held.

All orders not available. 3 years after inquiry was

ordered, and was nearly concluded, incumbent IO

noted that his predecessor had not ensured service

of notice upon resps. (army). Inquiry recommenced.

After the inquiry report was submitted (and the fact

of it having been received noted in the file) the HC

registry continued to send reminders to the IO.

Compounding the error, for several months reminders

were sent to the wrong IO. Ultimately, a court

official noticed the error.

The DM had reported the facts re Fayaz's arrest,

including the personal assurance by the CO of the

33 Mountain Div, to his superiors in the state govt.

Instead of reporting this to the HC, the state govt.

chose not to file a reply to the petn.

More than 5 years after inquiry was ordered, the IO

wrote to say that no inquiry was pending before

him. There is a noting by the HC registry in the file

saying that a report had been received, though

there is no report on record.

186

S. No.

Status -

Sept. '04

Time Taken

No. Of

Hearings

Notice

Service

- Time

Obj._by

Accused

- Time

State

Govt. Obj.

- Time

Inquiry

Report

- Time

Objs. To

Inquiry

Report

- Time

Accused Participation

in Inquiry

Remarks

1995/

0008

1995/

0009

1995/

0010

1996/

0001

1996/

0002

Disposed

Dismissed

Disposed

Dismissed

Disposed

6 years 7

months

7 years 7

months

1 year 11

months

6 ½ years

4 years 4

months

20

17

19

6 +

32

2-3 months

1 month +

4 months

3- 4 months

(approx)

3 weeks

Objs. not

filed.

Objs. not

filed.

9 months

Objs. not

filed.

Objs. not

filed.

4 months +

1 year 6

months

9 months

9 months

1 year

3 years 5

months

5 years 8

months

4 months

5 years

7months

2 years 2

months

6-9 months

Objs. Not

filed

Objs. not

filed

Objs. not

filed

1 year 1

month

Yes. BSF filed statement of facts,

produced witnesses, cross examined

petitioner's witnesses.

Yes. Report filed by 128 Infantry

Division.

No. Army officer appeared for resp.

4 (Jat Regiment), but then disassociated

himself.

No. Proceedings were dropped.

Yes. 28 RR filed statement of facts

and release certificate.

The inquiry exposed the BSF story of escape to

be a lie. Compensation granted. Inquiry revealed

systemic aspects of impunity regime in Kashmir

but HC failed to act against them.

Inquiry report wrongly exonerated army, based

upon misinformation by army.

Inquiry report indicted accused unit. Army did not

file objs. despite several opportunities. While

disposing of the case with a direction for registration

of FIR, HC allowed accused unit to file objs.

before the CJM, who was to monitor the police

investigation.

Killed in an encounter in July '01, several years

after his release from initial arrest. Mustafa Khan's

father appeared before IO to inform him of this fact.

RR claimed he was released into police custody,

relying upon signature of police on transfer of

custody doc. Constable said signature obtained

by fraud.

187

S. No.

Status -

Sept. '04

Time Taken

No. Of

Hearings

Notice

Service

- Time

Obj._by

Accused

- Time

State

Govt. Obj.

- Time

Inquiry

Report

- Time

Objs. To

Inquiry

Report

- Time

Accused Participation

in Inquiry

Remarks

1996/

0003

1996/

0004

1996/

0005

1996/

0006

1996/

0007

Disposed

Disposed

Disposed

Disposed

Disposed

4 years 9

months

4 years 8

months

2 years 6

months

2 years 10

months

5 years 5

months

11

10

18

19

2 + +(Orders

missing)

1 year 7

months

1 year 7

months

same day

same day

Not Known

Objs. not

filed.

Objs. not

filed.

Objs. not

filed.

9 months

Not Known

Not filed

Not filed

12 months

9 months

Not known

Report not

filed.

2 years 7

months

11 months

1 year 3

months

Not known

NA

Objs. not

filed

5 months

10 months

Not known

Not known. HC disposed of the

case on basis of interim report saying

family was not cooperating.

Yes. Objs. filed by resps. 2 (UOI)

& 4 (BSF). Witnesses examined.

Yes. Resps. produced a witness

and records.

Yes. Resps. filed statement of

facts & list of detenues and produced

a witness.

Not known

(Related to 96/5 & 96/6) Family devastated by

Farooq's disappearance. Gave up the case as

they had no hope of justice.

Two weeks after the report was received by the

registry, the HC disposed of the case on the erroneous

assumption that petitioner was not cooperating

with the inquiry.

Army representative said that the accused unit

had been shifted out of the State. (Incorrect as in

linked case (96/3) there was a report that (around

the same time) the said unit was in Anantnag.)

Later army changed its stand. (Also linked to 96/

6)

The objs. filed by the State pertained to the wrong

person. The accused unit filed objs. to the petn.

in this case but in the linked cases (96/3 and 96/

5) no objs. filed.

Case disposed of on the basis of statement that

Charge sheet was ready. Compensation not granted.

188

S. No.

Status -

Sept. '04

Time Taken

No. Of

Hearings

Notice

Service

- Time

Obj._by

Accused

- Time

State

Govt. Obj.

- Time

Inquiry

Report

- Time

Objs. To

Inquiry

Report

- Time

Accused Participation

in Inquiry

Remarks

1997/

0001

1997/

0002

1997/

0003

1997/

0004

1997/

0005

1997/

0006

Pending

Disposed

Disposed

Pending

Disposed

Dismissed

6 years 10

months

3 years 9

months

3 years 8

months

6 years 10

months

7 years

4 years 8

months

10 +(Orders

missing)

7

31

28

14 +(Orders

missing)

17

same day

1 year 4

months

1 month

approx.

Same day

1 year 7

months

2 ½ months

Objs. not

filed.

Objs. not

filed.

Objs. not

filed.

9 months

2 years [filed

3 months

after inquiry

ordered]

4 months

Not filed

Not filed

6 months +

9 months

2 years

11 months

NA

NA

1 year

3 years 5

months

3 years 10

months

3 years

NA

NA

8 months

(State)

1 year 8

months(security

forces)

Objs. not

filed.

Objs. not

filed

NA

NA

No. None for respondent 3 (8 Bn

RR)

No. Counsel appeared for resps. 3

to 5 (BSF, army, 20 Grenadiers)

but did not participate.

Yes. Resps. 6 & 7 (CRPF) filed

statement of facts & produced

witnesses. Petitioner's witnesses

were cross-examined.

Yes. 20 Grenadiers (resp.3) produced

witnesses.

Case kept pending to await SC decision in DK

Basu case.

Case disposed of on ground that detainee must

have been released on completion of detention

period under PSA.

Despite clear finding against accused in inquiry,

HC called Akbar Rather's disappearance a disputed

question.

2 ½ years after receipt of inquiry report HC was

still waiting for the State to file objs. to it.

IO relied upon eyewitness testimony to hold accused

unit responsible for disappearance. HC rejected the

plea for compensation saying there is no evidence …

to arrive at a decision for payment of compensation …

Chance absence of counsel for petitioner on one date

was enough for HC to conclude that the petitioner

was not interested in the case and, dismiss it.

189

S. No.

Status -

Sept. '04

Time Taken

No. Of

Hearings

Notice

Service

- Time

Obj._by

Accused

- Time

State

Govt. Obj.

- Time

Inquiry

Report

- Time

Objs. To

Inquiry

Report

- Time

Accused Participation

in Inquiry

Remarks

1997/

0007

1997/

0008

1997/

0009

1997/

0010

1st petn.

pending; [2nd

petn:

Withdrawn]

Disposed

Pending

Disposed

6 years 7

months;

4 years 9

months

6 years 5

months

3 years

20

34

28

17

1 year 8

months;

same day

5 months

1 year 7

months

Objs. not

filed (in either

petn.)

6 months

3 years 9

months

2 year 10

months

2 years 3

months.

2 months

Not filed

Not filed

2 years 7

months.

1 year 11

months. (2nd

inquiry

pending)

1 year 1

month

NA

Pending.

1 year

4 months

NA

Yes. Objs. filed by resps. Also

produced a witness. Records not

produced.

Yes. Resps. cross-examined

witnesses.

No. Resps. 3 & 4 (20 Grenadiers)

did not participate.

NA

Two petns. IO relied upon eyewitness testimony of

prominent villagers who, his report stated, had testified

despite threats and intimidation by the army. HC

also asked the concerned SSP to file status report re

investigation in FIR. Also pending in April '04.

HC disbelieved inquiry report saying witnesses

had repeated name of accused officer in a parrot

like fashion. Ordered a 2nd inquiry. HC factually

incorrect since IO had relied upon eyewitness

testimony by co-detainee.

State govt. created massive confusion and delay

by mixing up facts pertaining to an earlier arrest

(and release) under PSA with the current arrest.

Several months delay in serving accused unit as

HC registry did not issue notice. The unit knew of

petn. but did not enter appearance till it was formally

served. (Proved by fact that objs. were dated

over 2 years prior to date of formal service of

notice.) Even so they took nearly 2 years after

service, to file reply.

190

S. No.

Status -

Sept. '04

Time Taken

No. Of

Hearings

Notice

Service

- Time

Obj._by

Accused

- Time

State

Govt. Obj.

- Time

Inquiry

Report

- Time

Objs. To

Inquiry

Report

- Time

Accused Participation

in Inquiry

Remarks

Disposed

Pending

Disposed

Main petn.

disposed;

application

pending

4 years 10

months

6 years 5

months

5 years 2

months

2 years 9

months for

main petn.

Application

pending 2

years +

33

17

25

38

1997/

0011

1997/

0012

1997/

0014

1998/

0001

1 month

1 year 7

months

1 year 6

months

3 months

2 years 5

months

1 year 8

months

2 years 5

months +

[date of filing

not known]

9 months

2 years 5

months

2 years 3

months

Not filed

Not filed.

1 year 6

months

3 years 5

months

2 years 6

months

1 year 3

months

Objs. not

filed

8 months

Objs. not

filed

6 months

Yes. Objs. filed by resp. 4 (SP

Ops., Kupwara);other resps. did

not appear.

Yes. Resps. (BSF) produced witnesses.

No. Respondent 2 (8 Rajputana

Rifles) not represented. Inquiry

closed.

No. Resps. did not appear despite

several notices.

Police refused to file the affidavit of the accused

Sub-Inspector, saying he was not traceable.

Thereafter, SSP incharge failed to file affidavit

as required by HC

Correctly applying principles for fixing responsibility,

IO held the picket (BSF + Police) posted near Mod.

Afzal's house responsible for his disappearance by

unidentified members of the security forces.

Inquiry report said that proceedings were closed

at the request of petitioner as she was not in a

position to identify the army unit, nor able to adduce

evidence to establish facts. State govt. reply

before the HC and family (during interview) contradicted

this stand.

The petn. was disposed of with a direction to the

police to register case, complete investigation

within 6 months. Since police failed to do so,

family filed a CMP in March 2002, in an attempt

to pressure the police to complete investigation.

CMP was still pending in April 2004.

191

S. No.

Status -

Sept. '04

Time Taken

No. Of

Hearings

Notice

Service

- Time

Obj._by

Accused

- Time

State

Govt. Obj.

- Time

Inquiry

Report

- Time

Objs. To

Inquiry

Report

- Time

Accused Participation

in Inquiry

Remarks

1998/

0002

1998/

0003

1998/

0004

1998/

0005

Chance absence of petitioner's counsel on one date

resulted in case being dismissed for non-prosecution

after one year. Took 9 months for family to have it

restored. Finally, the case was disposed of with the

advice that petitioner should lodge an FIR.

Petn. disposed of on basis of GA's statement (incorrect)

that detainee had been released. Restored

after family filed an LPA. Meanwhile family filed a petn.

before the SHRC, where disappearance was established

and compensation was ordered. Thereafter

habeas corpus petn. withdrawn from HC.

Army claimed detainee had escaped from custody

and cited two policemen as witnesses. The

policemen denied this, saying they saw nothing

as they were stationed 1 KM away.

Confusion about identity of the accused unit. IO failed

to get the army to clarify on correct nomenclature of

the unit and, correct name of accused officer. Army

opposed inquiry findings. Instead of ordering the army

to clarify, HC ordered a fresh inquiry, saying a nonexistent

entity could not have been served.

NA

Yes. Resps. represented. Accused SHO

arrested and tortured eyewitness who

testified. Frightened, family requested

for dropping of inquiry proceedings/ HC

petn. (Meanwhile SHRC verdict had also

come. (see next column.)

Yes. All resps. represented. Witnesses

cross examined. No rebuttal

evidence produced by accused

resps. 4 & 5.

No. Counsel for UOI appeared and

then abstained from the proceedings.

(Note: a second inquiry was

ordered at the time of the petn.

being disposed of).

Disposed

Disposed

Pending

Disposed

2 years 9

months

4 years 5

months

5 years 8

months

4 years 2

months

18

16

15

31

3 months

3 weeks

3 months

3 months

Objs. not

filed.

Objs. not

filed.

3 months

5 months

Not filed

5 months

[None filed in

LPA]

8 months

State not a

resp.

Inquiry not

ordered

1 year

4 years 2

months

1 year 6

months.

NA

Objs. not

filed (case

had been

withdrawn)

Objs. not

filed till April

'04

7 months

192

S. No.

Status -

Sept. '04

Time Taken

No. Of

Hearings

Notice

Service

- Time

Obj._by

Accused

- Time

State

Govt. Obj.

- Time

Inquiry

Report

- Time

Objs. To

Inquiry

Report

- Time

Accused Participation

in Inquiry

Remarks

1998/

0007

1998/

0008

1999/

0001

1999/

0002

1999/

0003

1999/

0004

Inquiry report held BSF responsible for disappearance.

Family financially very afflicted. Asked HC

to award compensation. Case pending for over 1

year (in March '04) for resps. stand on this issue..

Linked to 98/3. Both persons were disappeared

by SHO, Pampore. In July 2002 petn. was withdrawn.

Of the three forces involved, the petn. only made the

145 Bn BSF a party. This unit denied the arrest.

Petitioner asked for proceedings to be dropped in

the inquiry.

Copy of petn. provided to counsel for UOI 3 times.

Each time he said he had not been supplied a

copy.

Another case where the counsel for resps. repeatedly

asked for and were provided copies of

the petn.

Not known. Report not available.

NA

NA

Yes. Counsel for resps. present.

NA

NA

Pending

Dismissed(as

withdrawn)

Disposed

Disposed

Disposed

Dismissed

5 years 7

months

4 years 5

month

1 year 10

months

4 years

1 year 6

months

1 year 7

months

33

12

8

5

16

17

Not known

3 weeks

2 ½ months

1 month

same day

same day

4 months

Objs. notfiled.

[verbalstatement

taken on record]

1 year 6

month

2 months

Objs. not

filed.

8 months +

1 year 5

months

Not filed

Not filed

2 months

11 months

1 year 4

months

2 years

NA

Inquiry not

ordered

3 years 8

months

NA

Inquiry not

ordered

5 months

NA

NA

Objs. not

filed

NA

NA

193

S. No.

Status -

Sept. '04

Time Taken

No. Of

Hearings

Notice

Service

- Time

Obj._by

Accused

- Time

State

Govt. Obj.

- Time

Inquiry

Report

- Time

Objs. To

Inquiry

Report

- Time

Accused Participation

in Inquiry

Remarks

1999/

0005

1999/

0006

1999/

0007

1999/

0009

1999/

0019

2000/

0169

HC dismissed the case for non-prosecution, even

though it was listed for resps. to file objs. to inquiry

report.

HC disposed of petn. with order to local SHO – who

was involved in the disappearance – to register a

case and investigate. Petn. filed before SHRC also.

After inquiry it ordered compensation.

On the verbal submission of the GA that detainee

had been released, case disposed of. However

he was released about a year later.

FIR ordered. Case was pending for resp's. stand

on grant of compensation to petitioner.

Family paid one Nazar Mohammad (20 Grenadiers)

Rs. 10,000 for Mehrajuddin's release.

However, neither he was released nor the money

returned. (Same facts in 99/3 & 99/9)

Petn. dismissed based on the resps. stand, without

giving the petitioner an opportunity to verify/ deny it.

Yes. Witnesses produced by

resps. 4 (UOI) & 5 (BSF).

NA

NA

No. Resps. 3 (UOI) & 4 (20 Grenadiers)

not represented. .

NA

NA

Disposed

Disposed

Disposed

Pending

Disposed

Dismissed

4 years 4

months

1 year 5

months

1 year 1

month

4 years 8

months

1 year +

3 months

21

14

16

27

1 + +(Orders

missing)

3

3 weeks

same day

2 months

6 weeks

Not Known

1 month

1 year 3

months

1 year 2

months

Objs. not

filed.

3 months

Not known

3 months

1 year 5

months

8 months

Not filed

7 ½ months

Not known

3 months

2 years 5

months

Inquiry not

ordered

Inquiry not

ordered

2 years 4

months

NA

Inquiry not

ordered

Objs. not

filed

NA

NA

8 ½ months

Not Known

NA

194

S. No.

Status -

Sept. '04

Time Taken

No. Of

Hearings

Notice

Service

- Time

Obj._by

Accused

- Time

State

Govt. Obj.

- Time

Inquiry

Report

- Time

Objs. To

Inquiry

Report

- Time

Accused Participation

in Inquiry

Remarks

2000/

0171

2000/

0172

2000/

0173

2000/

0174

2000/

0175

Petn. disposed of based on the resps. stand, with

direction to police to expedite investigation and,

Registrar General of the High Court be informed

about its result, at the earliest. Police did nothing

to investigate the case.

(In 1st petn.) Police report to HC stated that stated

that the persons who had arrested Ghulam Qadir

could not be identified as they were masked and

wearing army type clothing, which is also used

by the militants to conceal their identity.

Before HC state govt. merely denied arrest/ custody.

Before SHRC police filed report confirming that he was

arrested by 29 RR. Since SHRC has no jurisdiction over

the army, it did not proceed further in the matter.

CIK (Border section) confirmed Abid's arrest, on the

basis of the report in the Police Bulletin dt. 25.7.00.

Treated as 'Objs. not filed' case since the accused

unit was 23 RR but 30 RR filed objs. HC did not

notice error; dismissed petn. based on 30RR denial.

NA

NA (Both petns.)

NA

NA

NA

Disposed

1st petn.

dismissed;

2nd petn.

pending

Dismissed

Dismissed

Dismissed

1 year

1st petn.-2

years; 2nd

petn. - 3

years 5

months

11 months

1 year 3

months

7 months

9

1st petn. 9

2nd petn. 18

2 +(Orders

missing)

15

7

6 months

1st petn. 1

month 2nd

petn. 6

weeks

Not known

2 weeks

3 months

Objs. not

filed.

1st petn. 2

months; 2nd

petn. 11

months

11 months

8 months

Objs. not

filed

1 year

1st petn.

State not a

resp.; 2nd

petn. 1 year

8 months

10 ½ months

8 ½ months

4 months

Inquiry not

ordered

1st petn. Inquiry not

ordered2nd petn.

Pending for 2 years

5months

Inquiry not

ordered

Inquiry not

ordered

Inquiry not

ordered

NA

NA (Both

petns.

NA

NA

NA

195

(Connected with 2000/180) HC rejected applications

for exhumation of bodies and DNA verification

of identity in both cases.

(Connected with 2000/179) Informally, a policeman

told Badiyari's wife that he and Shabir Ghasi

had been killed by the 6RR and bodies had been

buried by villagers in village graveyard.

Missing since 20.8.1999 (Connected to 2003/3)

Missing since 20.8.1999 (Connected to 2003/2)

Missing since 15.5.96

Family filed petn. before the HC but could not pursue

it due to financial constraints. They did not have copies

and had misplaced the lawyer's card. Therefore,

we don't have any papers of the petn. Case treated

as one in which petn. was not filed.

NA

NA

NA

NA

NA

Not known

2000/

0179

2000/

0180

2003/

0002

2003/

0003

2003/

0004

2003/

0005

Pending(LPA)

not known

No case

No case

No case

Not known

2 years +

Not known

NA

NA

NA

Not known

2 + +(Orders

missing)

0++(Orders

missing)

NA

NA

NA

Not known

Not known

Not known

NA

NA

NA

Not known

1 year 9

months

1 year 7

months

NA

NA

NA

Not known

Not filed

Not filed

NA

NA

Na

Not known

Inquiry not

ordered

Inquiry not

ordered

NA

NA

NA

NA

NA

NA

NA

NA

NA

Not known

S. No.

Status -

Sept. '04

Time Taken

No. Of

Hearings

Notice

Service

- Time

Obj._by

Accused

- Time

State

Govt. Obj.

- Time

Inquiry

Report

- Time

Objs. To

Inquiry

Report

- Time

Accused Participation

in Inquiry

Remarks

196

S. No.

Status -

Sept. '04

Time Taken

No. Of

Hearings

Notice

Service

- Time

Obj._by

Accused

- Time

State

Govt. Obj.

- Time

Inquiry

Report

- Time

Objs. To

Inquiry

Report

- Time

Accused Participation

in Inquiry

Remarks

2003/

0006

2003/

0007

2003/

0008

2003/

0009

2004/

0001

2004/

0002

No case

No case

No case

No case

No case

No case

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

NA

Missing since 17.6.03

Missing from July - August 2000

Missing since 24.5.92

Missing since 30.03.97 (Connected with 98/2)

Missing since 27-28.08.00

Missing since 16.08.00

197

Abdul Ahad Malik

Abdul Aziz Tantray

Abdul Gani Najar

Abdul Hamid Badiyari

Abdul Hamid Beig

Abdul Hamid Dar

Abdul Khaliq Pir

Abdul Majid Guroo

Abdul Rashid Ganai

Abdul Rashid Sheikh

Abdul Rashid Wani

Abdul Rouf Shah

Abid Hussain Dar

Alam Sher

Ali Mohammad Dar

Ali Mohammad War

Ashiq Hussain Malik

Basharat Shah

Bashir Ahmad Bhat-1

Bashir Ahmad Lone

Bashir Ahmad Sofi

Bashir Ahmad Wani

Bilal Ahmed Sheikh

Dr. Ghulam Hasan Sofi

Ejaz Ahmad Sheikh

Farooq Ahmad Bhat-I

Farooq Ahmad Najar

Farooq Ahmad Shalla

Farooq Ahmad Khan

Fayaz Ahmad Bhat

Fayaz Ahmad Khan-I

Fayaz Ahmad Khan-II

Firdous Ahmad Khan

INDEX

Ghulam Hassan Baba

Ghulam Mohammad Sofi

Ghulam Mohammad Ahangar

Ghulam Mustafa Khan

Ghulam Qadir Pandith

Ghulam Qadir Sheikh

Hamidullah Mir

Imtiaz Ahmad Wani

Javaid Ahmed Bhat

Javed Iqbal Kemu

Khizir Bhat

Latief Khan

Malik Nissar Ahmad Shah

Manzoor Ahmad Ganai

Manzoor Ahmad Wani

Manzoor Ahmad Dar

Manzoor Shah

Manzoor Zargar

Mehrajuddin Dar

Mohammad Abdullah Bhat

Mohammad Afzal Shah

Mohammad Amin Bhat

Mohammad Aslam Mir

Mohammad Ayub Bhat

Mohammad Ayub Dar

Mohammad Maqbool Bhat

Mohammad Qasim Khoja

Mohammad Rafiq Bhat

Mohammad Ramzan Wani

Mohammad Shafi Dar

Mohammad Shafi Rah

Mohammad Shafi Shah

Mohammad Shahban Khan

Mohammad Syed Tambakoo

Mohammad Yasin Bhat

Mohammad Yusuf Wahloo

Mohammad Yusuf Wani

Mohammad Akbar Sheikh

Mushtaq Ahmad Chacha

Mushtaq Ahmad Dar

Mushtaq Ahmad Khan

Mushtaq Ahmad Rah

Mushtaq Ahmad Shagoo

Mushtaq Wani

Nazir Ahmad Gojar

Nazir Ahmad Malik

Nazir Ahmad Sofi

Nisar Ahmad Wani

Qazi Khurshid Ahmad Malkar

Riyaz Ahmad Gilkar

Riyaz Ahmad Khan

Sajad Bazaz

Shabir Ahmed Ghasi

Shabir Hussain Bhat

Sheikh Gowhar Ayub

Syed Amjad Ali Byhaqi

Syed Shariefuddin

Tariq Ahmed Rather

Waheed Ahmad Ahangar

Zaffarullah Beig

198

Glossary

Term Meaning

Army Act Army Act 1950, the statue governing the Indian

army

Article 14 The equality provision of the Indian constitution,

part of the Fundamental Rights, guaranteed

to all persons

Article 19 The compendium of "freedoms" guaranteed

to all citizens under the Indian constitution,

including the freedom to speech and expression,

association, movement, profession, etc

Article 21 The guarantee of the right to life and liberty

under the Indian constitution

Article 22 Constitutional guarantees against arbitrary

arrest and detention, also part of the "fundamental

rights" guaranteed under the Indian

constitution to all persons

Auto rickshaw Three wheeler vehicle commonly used as a

mode of public transport in India

CAT Term used for those who act as informers of

the security forces.

Chacha Literally, father's younger brother

Chowk Square in a city, town or village

Chowki Post (as in police chowki/ post)

Chowkidar Watch man

Crackdown Slang for 'Cordon and Search' operations by

the security forces.

Dargah Mausoleum of a Sufi saint

De facto In fact

De hors Outside of; not within the scope of

De jure In legal or, formal terms

Dera Resting place

Dharna Sit-in protest

Ex-gratia Gratitious relief granted to overcome a disaster

199

Gau yatra A Nepali festival

Gujar/ Gujjar/Gojar A nomadic community

Habeas corpus Writ issued by the higher courts of the land, seeking

the physical production of the person detained

illegally by any person, usually the law

enforcement agencies

Ikhwaini A term used by Kashmiris for a surrendered

militant who works for the security forces

Imam A person who guides; in Kashmir, generally the

person who leads the prayers in a mosque.

Imamat/Imammat Literally – to guide: e.g. a preacher who guides

the Muslim Ummah.

In extenso At full length

Jamait-e-Ahle Hadis An association of Sunni Muslims who belong

to the Ahle Hadis sect.

Jamait-e-Islami Literally: Islamic association

Jawan Soldier

Jhelum The main river of the Kashmir valley. It flows

through the entire valley, exiting at Baramulla

Kabariwallah Collector of junk and used goods, for the purpose

of recycling and sale

Kalaidar A person who applies a tin polish on copper/

bronze utensils.

Kanal A measurement of land in length and breadth

equivalent to 605 sq yards

Lakh One hundred thousand

Locus standi Latin: In the context of judicial proceedings,

the right to prosecute a case before a court

Lok Sabha Lower house of the parliament

Mohalla A local area; usually consisting of residential

houses

Mufti Literally: a person trained in Islamic law, competent

to issue fatwas. In Kashmir, also a surname

or caste, e.g. Mufti Mohd. Sayeed, a

former chief minister of J & K.

Mukhbir Informer

Mukhiya Another expression for the village headman

200

Mulaqat Meeting

Nallah A water channel or a ravine

Namaz Prayer

Nanwai Traditional Kashmiri baker

Nikah The formal ceremony of a Muslim marriage

Numberdar/Nambardar An officer at the village level who registers

births and deaths for the purpose of record

Operation Eagle An operation launched by the security forces

in the early nineties, in which suspected militants

were killed as a matter of policy

Patwari A land records & revenue officer

Rickshaw A tri-cycle based public transport vehicle

Sarpanch The head of a traditional village institution

called the Panchayat

Section 302 RPC Provision dealing with punishment for murder

- Ranbir Penal Code

Section 364 RPC Kidnapping or abducting in order to murder -

Ranbir Penal Code

Section 365 RPC Kidnapping or abducting with intent secretly

and wrongfully to confine person - Ranbir

Penal Code

SRO 43 An executive order providing government jobs

on compassionate grounds to the next of kin of

a victim of terrorist violence

Subedar Literally, the 'holder' of a province (Suba) under

a king or an emperor. Currently, a non-commissioned

rank in the Indian military.

Tehsil A demarcated area within a district or a sub

district

Tehsildar A revenue officer who heads a sub-district or

Tehsil

201

List of Abbreviations and Usages

ASP Assistant Superintendent of Police

Bn Battalion

BSF Border Security Force

CID Criminal Investigation Division (A branch of the State

police establishment. )

CIK Counter Intelligence (Kashmir) {As distinct from CIJ – Counter

Intelligence (Jammu}. Both wings are part of the State police

establishment and primarily deal with anti terrorist operations.)

CJM Chief Judicial Magistrate

CMP Civil (Cr. – Criminal) Miscellaneous Petition (Any application

in the main petition for orders of an interim nature.)

CO Commanding Officer (A term used to describe an officer

of any rank who is leading a group of soldiers.)

COI Court of Inquiry

CRPF Central Reserve Police Force

DB Division Bench (Signifies a court comprising two or three

judges, sitting together. A habeas corpus petition is usually

heard by a single judge bench in the J&K High Court.)

DGP Director General of Police

DIG Deputy Inspector General

DJ District Judge (The head of the district judiciary.)

DSP Deputy Superintendent of Police

FIR First Information Report (Any information to the police

regarding a cognizable (serious) offence. Lodged under

section 154 of the Code of Criminal procedure

GA Government Advocate (Signifies a lawyer acting on behalf

of the state government.)

GOC General Officer in Command

HC High Court

HM Hizbul Mujahiddin (A militant outfit.)

ICRC International Committee for the Red Cross

IG Inspector General

IGP Inspector General of Police

JIC Joint Interrogation Centre.

J&K Jammu and Kashmir

JKLF Jammu and Kashmir Liberation Front (Formerly, a militant outfit.)

202

JKLI Jammu and Kashmir Light Infantry (A unit of the regular

Indian army.)

IO Inquiry Officer (The person – usually a judicial officer,

sometimes a civil service officer – appointed by the High

Court to inquire into an alleged disappearance. )

LPA Letters Patent Appeal (Basically an appeal against an order

of a Single Judge of the High Court to a Division

Bench of the same court.)

MLA Member of the Legislative Assembly (A member of the

State legislature. )

NC National Conference (A political party of J&K.)

NHRC National Human Rights Commission

Objs. Objections

PAPA-II One of the most famous interrogation centers in Kashmir

located on Gupkar Road in Srinagar; formerly part of the

Palace of the Maharaja of J&K

PDP People Democratic Party (A political party of J&K.)

Petn. Petition

POK Pakistan Occupied Kashmir

PS Police Station

PSA Public Safety Act (A law permitting preventive detention,

applicable only in the state of J&K)

RR Rashtriya Rifles (A paramilitary force set up specifically

for counter insurgency operations. Manned by retired

soldiers and led (mostly) by serving army officers.)

SC Supreme Court

SHO Station House Officer (The officer in charge of a police

station.)

SHRC State Human Rights Commission

SOG Special Operations Group (The STF (see below) was renamed

the SOG after it became notorious for the indiscriminate

brutality of its operations.)

SP Superintendent of Police

SSP Senior Superintendent of Police

STF Special Task Force (A wing of the State police set up specifically

for "anti-terrorist" operations.)

TADA Terrorist and Disruptive Activities (Prevention) Act (The

Act has since lapsed and is no longer on the statute books.)

UOI
Union of India

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