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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 ............ ......... ......... ......... ......... ......... ......... ......... ........ vPart 1: Introduction ............ ......... ......... ......... ......... ......... ......... ......... ... 1 The Impossibility of Justice-I ............ ......... ......... ......... ......... .. 17 The Impossibility of Justice-II ............ ......... ......... ......... ......... 65 Notional Powers and Actual Impotence ............ ......... ......... .. 115 End Note ............ ......... ......... ......... ......... ......... ......... ......... ..... 146Part 2: Appendix -1 – Lahu Ka Surag/ In Search of Vanished Blood ..... 150Appendix - 2 – Table: Personal and Detention Details ............ ... 152Appendix - 3 – Table: Time Line ............ ......... ......... ......... ......... .. 177Index – List of Cases ............ ......... ......... ......... ......... ......... ......... . 197Glossary ............ ......... ......... ......... ......... ......... ......... ......... ......... .. 198List of Abbreviations and Usages ............ ......... ......... ......... ........ 210iv 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 Ring 1 as a voluntary support organization for documentationand 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 1 Part2 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 – ubijus ibi remedium – must therefore find place in any bill of rights worthits name. 3 Article 32 of the Constitution, forming part of the guaranteedfundamental rights, empowers any person aggrieved by a law (or an action) – on the ground that it violates his or her fundamental rights – tomove the Supreme Court (under Article 32) or any of the High Courts (under Article 226) for an appropriate writ, order or direction quashingthe law (or the action), on that ground. 4 It goes without saying that ineach case the courts are duty bound to also order such other reliefs asmay be necessary in the facts and circumstances of the case. 5Thus, under rule of law, power is legitimate only when it is invariablylimited 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, Whatneed we fear who knows it, when none can call our powers to account .6In 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 aviolation of human rights as well as a direct threat to the rule of law, thenecessary 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 ofa violation of the right to life and liberty, guaranteed by Article 21 of the Constitution. 8 In technical terms, therefore, this document maybe 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 ofthe 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 Kashmiris rooted in the Armed Forces (Jammu and Kashmir) Special Powers Act 1990 (AFSPA). 9 The AFSPA enables the deployment of thearmed 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 itis necessary to do so for the maintenance of public order .11 This extraordinarypower 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 routinelyrejects 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, thecourts have never tested the AFSPA provision, the Supreme Court having shied away from actual application of its parameters. 14 Therefore, section7 is almost universally interpreted to grant immunity from prosecution of any kind, in the absence of the central government's permission. 15The 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 inwhich 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 Court12 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 AttorneyGeneral 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 presumedto have been intended by the legislature. 18Thus, 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 themconsistent 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 beinvoked 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 wouldhave 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 onlygrant of compensation for causing the custodial death of AdvocateGhulam Mohi-ud-din Regoo (husband of Masooda Parveen), who was the sole breadwinner of the family. 20 In other words, Masooda Parveenwas 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 and19 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 classicexample 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 ignored21 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 deliverjustice ), our grievance is not justiciable. Nor is it permissible to questionwhy the notion of justice that the courts dispense is so deeply polluted by concepts of national security, integrity and, sovereignty. 24 The individualis the subject of the nation-state and the individual is nothing without thecommunity 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 thenation 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 andenforceable 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. 2623 The doctrine of legitimate expectation was developed by the superior courtsin 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 – communalriots, political turmoil, student unrest, terrorist activities (and more) –the Court simultaneously asserted that freedom of an individual mustyield to the security of the State .On the one hand the Court said that (t)he cure cannot … be worse thanthe 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 invokedtwo fairly old Latin maxims – Safety of the people is the supreme lawand, Safety of the state is the supreme law.28Seemingly 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 humanrights on a mass scale ,29 the Court must be deemed to be aware that itsremarks 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 randomlygathered 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 PSA 31 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 datethe families have not received any information of their whereabouts. These three cases illustrate that the impossibility of justice crosses thegeographic 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 inwhich 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 disappearedperson 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 filedbefore 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. 35Apart 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 obtainedcopies 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 sourcesof information, the families and the court records acted as a check upon each other. 3835 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 basisfor the payment of ex-gratia relief and, grant of benefits under SRO-43 (a government order), to victims of militancy. Their reports usually contain anaccount 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 difficultin 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 houseand 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 intoa 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. 4141 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 isthe powerlessness of the High Court. Everything else can be derived from this fact. From the point of time when the Court issued notice ofthe 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 whichought 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 thenumber 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 onlyexpression of contrition that the system showed for its mistakes was in42 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. 44The 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 and44 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 accusedunit 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 theircustody. In four cases it was stated that the arrested persons were held in legally recorded and, acknowledged, custody after their arrest. 47The 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 theInquiry 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 theCommandant and the Deputy Commandant of the 53 Bn to retire rather46 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 beginwith. 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. 49That 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. 50In 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 wehave 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 thecentral 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 caseswhere 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 otherwords, 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 ofthe 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. 53The 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. 54We 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 oneis 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 thegeneral 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 dismissedby the High Court and, cases that are still pending disposal by theCourt. In the next chapter (The Impossibility of Justice –II) we will first examine several smaller categories. The section titled Where GuiltWas Not Established enumerates the cases in which the inquiry returneda finding of not guilty; cases in which inquiries were orderedbut not held ; cases resulting in the High Court ordering inquirieswhich were still pending ; and, the cases in which the inquiries wereclosed . The second section in this chapter covers cases where theinquiry was not ordered . As the High Court did not order an inquiryin over 27 percent of the cases this is a very important section, though (necessarily) deficient in material from court records. 55 Since thecollapse 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 lastsection 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 facilitateanalysis 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, epitomisesalmost 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 againstregistering 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 daysbefore 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. 58Waheed'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 listof 60 names of people whose custody the government acknowledged. Waheed's name was among those listed. 59Failing 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 throughthe 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 PCRregarding 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 testimonyled 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 Thesecond, dated October 2003, adverted to difficulties in procuring the presence of witnesses as they have retired. Thus, over 13 years after Waheed'sdisappearance, 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 anFIR registered, in November 1991 his family filed a petition before the High Court. On 18 May 1992 the state government filed objections tothe 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 stategovernment to allow Farooq's family to meet him. Instead, a few weeks later the state government filed another application 'clarifying' that afterthorough 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 .63It 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 oneindicated in this petition . To dispel the confusion, he asked theAdditional 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 notwith 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 forfiling 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 confusionarisen 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. 64Failing to find any trace of Dr. Ghulam Hasan Sofi (94/5) after hisarrest, 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 areply 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 30July 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 army64 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. 68The 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 togrant any effective relief . Compounding the absurdity, at the same timethe Court directed the DJ, Kupwara to hold an inquiry … into the matter(of Sofi's disappearance ).69Meanwhile, 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 groundthat 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 findingswithin 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 severalopportunities 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 December1996, the Court's registry noted that the inquiry report has beenfiled and tagged with the court file . In February 1997, the Court did notfind 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 receivedby this court for conducting inquiry but the High Court's registryignored 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 Waniwas 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 conclusivelyestablished that Mohammad Ramzan was arrested during a cordon and search operation on 4.9.90 and has not been seen since then .71Compounding 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 seekappropriate remedies before appropriate court .Nineteen year old Nazir Ahmad Sofi (93/3) was arrested by a combinedforce of the BSF and the RR during a crackdown on 15 October 1993. 72According 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. Eyewitnessesstated 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. 74Neither 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 governmentso far .75 In May 1995, the High Court ordered the DJ, Anantnag toinquire 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 reportof 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 thehouse where he was staying temporarily, was raided. 76 His family couldnot 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 TheHigh Court failed to notice this reply, and ordered an inquiry into his disappearance in March 1995, by which time he had already been releasedafter completing his period of detention under the PSA. 78In Khizir Mohammad Bhat's (95/2) case the army's (2 Garhwal) standwas 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. 7976 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 hewas sent in a truck by police Station Pattan . The report accepted theversion of the then SHO, PS Pattan as being corroborated by independentwitnesses. 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 periodarmy 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 .80Needless 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 unusualin 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 wasbrought into focus before the Inquiry Judge by a pointed question during cross-examination, to which the SHO stated that as a matter ofroutine Khazir Mohd. was helped and was left in a truck, least knowing that the person will dis-appear . The logical next question (by thecomplainant 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 hewould 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 thepolice learnt that the army unit had found Khizir Bhat innocent andreleased 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 negligenceby all concerned: the Army, the DM, Kupwara and, the High Court. The petition on his behalf was dismissed with the remark arrest notproved, on the basis of a mistake in the identity of the complainant. Twowomen, 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. 82Yet, 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 independentcourt 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 acomplaint by the other Begum Jan. 83 The report of the COI containingthe 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 thatAlam 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. 85The case of Nazir Ahmad Malik and Mohammad Shafi Shah (97/1) exposesthe 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 informationabout 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, Nambardarof 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. 86The 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 filedbefore the Supreme Court regarding implementation of directions passed in the DK Basu case 87 and declared it advisable to defer ordersin 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 designedto check human rights violations by the security forces, get subverted. 88 Abdul Rashid, a truck driver, was arrested on 7 July 1997by 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 Riflesand that no FIR was lodged or pending against them, from during their tenure in Srinagar, from April 1997 to Dec 1998 . The second certificatestated 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 knowledgeor 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 Abdul89 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 toshow 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 theHigh 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 concernedSub- Inspector .The Court took exception to this statement, and asked the Superintendent of Police, STF, Kupwara to file an affidavit listing the names ofthe persons who were on the strength of the force on the relevant date at Kupwara . This order was never complied with. Instead, theSP, Task Force, Kupwara filed an affidavit in support of the objections filed earlier, reiterating that Fayaz was not lifted by Special OperationGroup, Kupwara, till date as per records of this office .90 In view ofthis 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 hasbeen clearly established that Fayaz … was arrested by S.O.G. personnel from his house . However, the Inquiry Judge relied upon a contradictionbetween 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. TheCourt directed the police to register an FIR and investigate saying that The State is under legal liability to take this enquiry to logical end .92The case of Farooq Ahmad Bhat (99/4) brings to light a special facetof 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, thestate 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 hadacknowledged 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 addressof 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. 96The 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, accordingto 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 Courtfurther 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 22Bn 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 contradictionsand 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 havenot been able to prove as to which Battalion of BSF had arrested Rafiq Ahmad .100The 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 therespondents to file objections to the inquiry report. Though the respondentshad not filed their objections, for which time had been grantedto them, the Court assumed that the absence of representation on behalf of the petitioner on two consecutive dates was proof that the causedoes not survive . An extract from the chronology of the case, illustratingthe 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 occasionthe case was adjourned because counsel for petitioner was not present .102 It, therefore, dismissed the casefor 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. Meanwhileif 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. 103In 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 Heretoo, 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. 105Farooq Ahmad Najar (92/4) was arrested in the beginning of April1992. 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 stategovernment failed to do this also, in August 1993 the Court ordered the respondents to produce Farooq Najar. Instead, in April 1994 thestate 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 December1991, 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 monthsafter 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. 107In 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 Stategovernment . In view of this denial the Court ordered an inquiry into hisarrest. 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 thearmy during a crackdown on their locality in December 1990. 108 Theywere 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 onbehalf of families of those who were arrested. Thus, the petition was actually filed a few days after the brothers were released, in February 1991. 109Till 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 notproduced, in January 1992 the Court ordered their immediate release. Italso ordered the respondents to pay costs of five thousand rupees to the petitioner committee. 110 In May 1992, the state government filed areply, without a supporting affidavit, stating that Parvez and Manzoor have not been received by the Counter Intelligence Agency so far . Thecourt 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 IntelligenceAgency 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 courtordered 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 thetreasury. 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 error109 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 September1992. 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 orindexed 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 wasreleased 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 veryprominent citizen, both as the head of the Jamiat-e-Ahle Hadis, Jammuand 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 beenreceived/ arrested by any JIC of the State so far . At this point of timeAslam 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 wasnot 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 wasreleased 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 forwant of prosecution .Qazi Khurshid Ahmad Malkar (94/4) was arrested in June 1994. Hisfamily 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 tofile 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. 114The 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 PSAwas 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 kindbefore the Supreme Court. 116 Despite its severe shortcomings there isno 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 issuedunless the urgency of the situation demanded it or, the issuing of a notice was likely to defeat justice. It held that the normal practice shouldbe 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 habeascorpus. 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. InJuly 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 anextensive review of the development of this practice, starting from the Rudal Sah case, the Court declared that the State's duty of care to ensurethat the citizen in its custody is not deprived of his right to life, isstrict and admits of no exceptions . It further held that the SupremeCourt and the High Courts have a constitutional obligation to do completejustice , 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 protectionof 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 theonly 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 merelyrender 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 notonly 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 sovereignimmunity was not available in cases of fundamental rights violations. 49 the extreme contravention (violation of the right to life) the court ispowerless 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 toArticle 9(5) of the International Covenant on Civil and Political Rights, 1966 , to emphasise the correctness of its stand in this regard.120 Theposition 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. 121Notwithstanding 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: theCourt 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 ordetention 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 Whilehearing such cases, it declared, it was essential for the Court to remember that its primary purpose in a habeas corpus petition is to secure theliberty of the individual or, to ascertain that he/ she had been arrested/ detained in accordance with law. Thereafter, it is also the Court's purposeto ensure that the citizen who had approached the court got appropriate, proper and effective relief. 124The Division Bench also held that the Court is not only the custodian of therights 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 before123 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 responsiblefor 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 secondinquiry. 129 In three cases the court ordered compensation to be paid tothe 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. 131Notwithstanding 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 wasample 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 onelakh 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) wasarrested 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 daysof 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 theHigh 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 assistthe 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 thestate government liable to pay the compensation ordered. 134132 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 BSFguilty 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 isdead. Only relief prayed for is compensation .135 The Zargar familylawyer 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 inquiryestablished the prima facie … involvement of 53 Bn in his arrest andsubsequent disappearance, the Court declined the request for grant of compensation on the ground that the matter involves proof on evidence whichcan be taken by filing petition in proper forum …seek(ing) compensation .In Syed Shariefuddin's (91/6) case the inquiry report holding 141 BnBSF 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. 136In Basharat Shah's (91/12) case the respondents (including the stategovernment) 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 thegrant of compensation was permissible only once the guilt of the accused had been established before the criminal court. 137135 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 NazirGojar's case (93/4) has been discussed in detail in the next chapter. Theonly point to be made here is that the refusal of the central government to grant sanction to prosecute the accused officers does not constitutean 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 inquiryreport, the guilt has not been fixed on any individual/ officer of the unit .138Bashir Ahmad Lone's (94/2) case typifies how the Court processes andthe 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 poortaste. 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 The4 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 the4 Grenadiers to state this fact in their reply several years earlier, the Court merely accepted the objection and ordered a fresh inquiry. Fouryears 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 pursuingthe matter any more .141 Thus, notwithstanding their culpable failure tocooperate 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. 142In addition to exposing the High Court's lack of decisiveness, the case of Ghulam Hassan Baba (95/5) also illustrates the routine negligence ofall proceedings. 143 Over eight years after the petition was filed, in August2003, the High Court disposed of the petition, holding that AsInquiry 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 hasbecome a compulsion by the people instigated by terrorist (sic) to take up cases against the security forces .144141 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 levelendorsement of the fact of his arrest that it received. 145 Perhaps for thisreason, 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 producedby 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 opportunityto produce witnesses. 147 Having succeeded in persuading the Court toorder a fresh inquiry the army did not participate in the proceedings, despitenumerous opportunities offered to them.148 The second inquiry affirmedthe 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 compensationfor 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 .149145 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'srelease, 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 andsee to it that the report of the enquiry conducted by the enquiry officer is lodged with the concerned police station . The Court also grantedthe 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 injusticeof 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 Judgefaced 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 submittedat 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) ."151150 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. SessionsJudge 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 againstthem, 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. 152In Shabir Hussain Bhat's (96/7) case the High Court had ordered theregistration 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. 153In Mohammad Akbar Rather's (97/3) case, the inquiry report held thathe was arrested by the 8 Bn Raj Rifles Camp Palhalan … headed byMajor 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 legalproceedings 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) ifavailable 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 termedAkbar Rather's disappearance a disputed question, and disposed it ofwith the standard direction to the police to register a case and investigate it. 154The inquiry report in Abdul Khaliq Pir's (97/5) case relied uponeyewitness 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 .155The 20 Grenadiers participated fully in the inquiry into MohammadShahban Khan's (97/6) disappearance. The Inquiry Judge disbelievedtheir 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 theinquiry report. Instead, disparaging the absence of the petitioner's counsel, the Court dismissed the case with the remark that (i)t seemsthat the petitioner is not interested to pursue this matter . Disprovingthe observation, Shahban Khan's family filed a fresh petition, seeking action and compensation. 156154 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 20Grenadiers 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, itwas the 20 Grenadiers that filed objections to it. The objectionsargued that as Batamaloo is located on the National Highway, wherea 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 thatthe objections notwithstanding, the disappearance of Nissar AhmedWani 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 compensationhas 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, Srinagarto register a case and get it investigated by a senior officer within six months . However, nearly four years later the police had only managed157 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), residentof district Doda, was taken after his arrest from Srinagar, deposed before the inquiry ordered by the High Court. 159 All of them confirmedthat 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 ofsecurity forces and most probably in the custody of respondent No.5 Unit 20 R.R , Bemina, Srinagar.160 This conclusion … has been arrivedat in view of the evidence on record . The time between then and April2004 was consumed in getting the respondents to file their objections to the inquiry report. 161Scores of villagers accompanied Bashir Ahmad Bhat (97/7), resident ofKuligam, 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 the159 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 respondentsto file objections to the inquiry report.Ghulam Qadir Pandith's (98/4) family learnt of his arrest the day after ithad taken place. Two days after his arrest Ghulam Qadir was brought home for a search. 164 Nothing was found during the search. Qadir'sarrest and torture by the 13 Garhwal was confirmed by the SHO of the local police station in a report to his superiors. 165In 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 soldierswent into the forest with a civilian. After some time they heard thesound 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. 166163 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 April1995. 167 A year later, in a report to the SSP of Srinagar, the local policereported they had found an independent eyewitness who confirmed Manzoor's arrest but could not identify the force/ unit responsible. 168 Inresponse 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' tothe objections was a Confidential list of 24 names of persons handedover 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 Certificatesissued to the 34 battalion by the police, before it left the valley. 169Lastly, 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. TheCourt asked the respondents for their stand on this request but nothinghappened thereafter. In November 2003 the Court again asked the respondents to declare their stand on the issue of compensation. InJanuary 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 bythe Army. 170 The High Court took umbrage at these remarks, calling them contumacious. After an initial show of truculence, the BSF withdrew these remarksand 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 April1997 by the 20 Grenadiers. 171 Initially, the officers at the 20 Grenadierscamp 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 anyJIC 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 stillpending in December 2003. 173171 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 commissionedofficer or a non commissioned officer of the army in command of his soldiers , with the powers of a police officer, while aiding the civil authoritiesin the maintenance of law and order and internal security. The notification stated that these powers shall be exercisable in the area ofjurisdiction 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 otherlegal 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 RoufShah (90/2) , a patwari (Land Records Officer), and his elder brother, asecondary 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 theArmy 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'sfamily was not able to show that they had obtained the prior sanctionof the central government before filing the habeas corpus petition on 66 his behalf, it should be dismissed: being against the spirit of the ibidsection of the said (Act) .176While 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 waskept as security for Rouf's return but when it became clear that he hadfled, his brother was released. The inquiry report, dated November 1992, makes clear the discomfiture of the inquiry officer. 177 Despite considerablematerial on record, establishing gross illegalities by the army and rendering their story of release highly suspect, the inquiry officerfelt compelled to couch his conclusion in ambiguity. 178 Without statingso, his report conveyed the impression that Rouf's family accepts that he was released by the army. 179Even 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 theage 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 tomalign 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 daysafter 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. 181Abdul Saraf was released after 17 days. 182 Latief's family chased everyrumour about his whereabouts. On many occasions, they were issued interview slips by the police and, other state government officials, allowinga meeting with Latief, on the basis of information that he was being held in a particular place. However, he could never be traced. 183The 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 JudgeLatief'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 thepetition are not established . Latief's family's version of the inquiry proceedingswas 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 Thepetition 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 arrestbut claimed that after he was found to be white (he) was handed over tothe 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 interviewslips .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 whetherthe 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.187The 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. 188The SP, Baramulla filed objections to the inquiry report, citing the testimonybefore 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 policeinvestigation 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. Needlessto say, nothing was done. B. Where Inquiry Was Ordered But Not Held Of the four cases in this category, two have been discussed above. 190The 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 overto 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 hewas 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 theCRPF, 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, inAugust 1993. Mohammad Amin Bhat (95/7) was arrested in May 1995 during a crackdownon his village. Since his family could not learn of his whereabouts, in August 1995 they filed a petition before the High Court. 191Meanwhile, 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 CIKSrinagar no such person stands arrested/ Booked and, prayedthat the petition be dismissed. 192 In June 1996 the Court ordered theDJ, Budgam to inquire into Amin Bhat's disappearance. For five and a half years thereafter the Court continued to await the inquiryreport. Numerous orders were passed, directing that reminders to be sent to the Inquiry Judge to expedite the inquiry. 193 Finally, inDecember 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 bythis court .194C. 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 bythe 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 twoweeks . However, the only response was an oral statement, eight monthslater, that the detenue is not traceable with the respondents. The Courtdirected 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. 196Two weeks after Syed Amjad Ali Byhaqi's (92/3) arrest, during a crackdownby 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. 197Eighteen year old Mohammad Ayub Bhat (94/1), a carpet weaver, wasarrested 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 petitionfiled 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 on20.x.95 . The inquiry ordered by the Court into his disappearance remainedpending 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 proceedingswere 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 jobfor 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 nohope 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 fileda petition before the High Court. 200 The petition pleaded that thoughManzoor 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. TheBSF 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 neverreached 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 wascompleted 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, asthe petitioner has not come to prosecute this petition.203By the time he died, 23 year old Ghulam Mustafa Khan (96/1) hadbecome 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. 204Farooq Ahmad Shalla's (96/3) case is connected to the cases of JavaidAhmad 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 thepress, 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. 206Meanwhile, 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. 207The 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 1997by 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 statedthat Abdul Ahad's wife had turned up before this court and submittedan 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 theearlier 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 .209The 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 RajRifle . The family also contradicted the inquiry report. They said thatthey 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, followingthe 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 botharrested 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 familiesthe 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 .212In response to the petition filed on his behalf, the counsel for the state government orally stated that Bashir Wani was released from custodyon 23 November 1997 and, was no longer in the custody of the State and its officials . The Single Judge hearing this petition dismissed thecase 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. 213By 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 Frightenedby 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 22December 1998. 215 His friend Mohammad Ashraf Pir, a shopkeeper fromSopore, who was visiting him at that time, was also arrested. 216 Failing tosecure 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. 217D. 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 8March 2000 by the 14 Rajput, based at Panzgam, Kupwara. 218 The 14Rajput denied his arrest. 219 It was stated that the 14 Rajput had not215 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. 220The 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 hisarrest. 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 usedby 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 the4 GR, under the 14 Rajput had arrested Ghulam Qadir. The 14 Rajput replybefore 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 isdisposed of with the direction to the SSP Kupwara to … it is patent thata 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 tohim 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 disposedof , one was withdrawn, two were pending and, in one case wecould 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 Initiallyhe 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. 223After 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 governmentto disclose the law and authority justifying the arrests, within 10days. 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 .225Thereafter, 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 communicationto the Chief Secretary/ Law Secretary, J&K for implementation of itsorder. 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 complyingwith 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 theoffence 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 pendingin December 2003, over thirteen years after it was filed. 230Zafarullah Beig (91/7), a gazetted state government employee, wasarrested 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 afterhis arrest. 232 The petition, however, remained pending because Beig227 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 apetition 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 replysaid 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 securityforces 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 petitionerroneously 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 detentionpermissible under the PSA .235Twenty three year old Manzoor Ahmad Dar (98/2) and 20 year old BilalAhmed Sheikh (2003/9), neighbours and friends, were arrested togetheron 30 March 1997 by the 20 Grenadiers. 236 They were picked up at theTengpora 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. 237After 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 becausethe petitioner's counsel was absent on one date. 238 It took ninemonths 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 missingperson 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 .239Manzoor'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 TheChairperson 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 1998by 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 areport regarding his arrest were rebuffed by the police. 242 Of the threeforces 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 submissionwas 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 aroundmidnight 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 receivedin any JIC manned by the CID , and asked that the petition bedismissed in the interests of justice. In November 2000 the High Courtdisposed of the petition with a direction to the SSP Srinagar to register a case, complete the investigation within six months and to prosecutethose if found involved in such illegal action (sic). Abdul Rashid Ganai (99/6) was arrested from his house on 6 January1999 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 anidentification certificate declaring his status as a surrendered militantand as a source for the army.246244 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 AbdulRashid'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. 248Some 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. 259Accepting this report, the SHRC recommended that Abdul Rashid's family be granted ex-gratia compensation of rupees one lakh. 250Sixteen year old Mohammad Qasim Khoja (99/7) was arrested by theCRPF, accompanied by some STF policemen in civilian clothes, in November 1997. 251 After about one year of illegal detention, during whichhe 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. 252Qasim 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 districtcommander, the J&K chief and, the launching chief of the HM. Of thefour 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 houseon 20 April 1997, by the 20 Grenadiers. The arresting unit was headed by Major Vishwajit Singh. 253 Mehrajuddin was tortured in the presenceof 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. 254252 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 tohave 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. 255In Mohammad Yasin Bhat's (2000/171) case, as in many others, thecourt 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 Theone page objections stated that Yasin was untraced by the JIC's (sic) ofSrinagar / 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, withthe direction that the investigation be expedited and the RegistrarGeneral 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 arrestedby 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'sarrest, 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 thatMushtaq 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. 258The 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 any257 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 duringverification … (conducted by the concerned police station, it was revealed that) On 19-8-2000 259 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 whilecrossing over into Indian Kashmir, in the Mandial Sector-I, Chindial, Kathua (Jammu region), along with two other persons. 260 The news oftheir arrest was published in two daily newspapers on 26 July 2000. 261The 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 denying259 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 andtwo 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, withoutmentioning 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'sreply 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 hishouse 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. 263In 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 bythe Unit of the answering respondents 1 and 2 on 7-3-1998 .264 The stategovernment's reply stated that Ali Mohammed had not been arrested byany JIC of Srinagar/ Jammu, manned by the CID . The reply also statedthat 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 productionof 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 nearbyITI, 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 22January 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 atTaratpora 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. Ittherefore 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 libertyto file proper proceedings for seeking proper relief .266Abdul Hamid Badiyari 267 (2000/180) was arrested by the 6 RR, on 21January 2000, from the Ghantaghar Auto Stand at Lal Chowk, Srinagar, in the presence of his father and, Shabir Ghasi's brother. 268 On learningof 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 Badiyariand Ghasi, stating that Srinagar was not within the area of operationof 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 renderedunworkable and infructuous , dismissed it.271During 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. 272III. 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 armedforces covered by the Act, the central government must sanction theprosecution. 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 theother two cases the High Court, willy nilly, got involved in the process of obtaining sanction from the central government, which is the appropriategovernment 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 marryagain as I am afraid for my children . However, she ultimately did remarryin late 2004. 95 Twenty two year old Sajad Ahmad Bazaz (92/2) was arrested from hishome 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 releasedand, 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 thecentral 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 Troopsin my command had not been connected with apprehension, detention or custody of Sajad Bazaz . On 17 February 1993 the Additional Chief Secretary (Home) J&Kfiled 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 familieshad been pressurised by militants to allege that they had been picked up by State . On 22 September 1993 the IG, BSF filed another affidavit, denyingthat Sajad had been apprehended by the BSF. Over the next four years the proceedings continued a purposelesscourse. In October 1993 the Court ordered a judicial inquiry into Sajad Bazaz's disappearance. 275 The inquiry report datedJuly 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 ofthe 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 accusedofficer rather than in unnecessary displacement activity. 97 In November 1994, the Court asked the counsel for the BSF tofurnish 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'scounsel 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 aspectof 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 DeputyCommandant DS Rathore. However, he did not produce a copy of the order of refusal. In April 1997 the Court expressed exasperation at the interminabledelays in the case. It pointed out that sanction was notrequired to arrest an officer who had committed an offence andquestioned 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 theCourt 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 directedthe police to seek custody of the accused officer from theBSF. 277 In July-August 1997 the petitioner filed an application beforethe 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 evidencebefore 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 sanctionto prosecute the accused BSF officer. In September 1997 the BSF filed its reply, arguing that the GSFCproceedings were not parallel proceedings (as argued by thepetitioner). 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 BSFrules 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 ofsanction 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 informedthe Court that the central government had refused sanction toprosecute 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 statementof facts to the Court. Referring to the disciplinary action/trial against DS Rathore by the GSFC, it was stated that theGSFC 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 applicationpraying 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 thefinding of the GSFC, which held DS Rathore not guilty of offencesu/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 away around the impasse by asking the state government to ex 100amine 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 governmentjumped 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 applicationthat 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 againrejected 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 July2004, 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 January1992 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. 282280 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 assimple 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 theseissues 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 November1994, 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 arrestedby the 5 Dogra, and must be presumed to have been killed incustody. 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 ratherthan 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 governmentin 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. 2832. 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. 2843. 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. 2854. 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. 2865. It is on record that the Numberdar/ Sarpanch of Malangam villagecertified 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 suchquibbling. 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 oldFirdous Ahmad Khan (2003/3) are connected by more than just thefact that they were probably together when they disappeared. 287 Thenarratives 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 towork 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 supporterswho 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 4a.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.290The 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 atleast 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'sfather suspected that the repeated raids were the result of lies fed to the security forces by the STF and BSF mukhbirs who surround theirhome. 293 He wondered why the security forces did not raid his house atthe 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 verymuch .294 A few days before our visit, the security forces arrested Ejaz'stwo 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. Onthis occasion, Ejaz's father succeeded in getting his sons released after a few days of detention. 295 He withdrew his complaint to the SHRC after290 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 fightwith 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 subjectedto 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. 297His mother said, our family has no connection with militancy. We don'tknow 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 othernarratives that we heard during our travels in the Kashmir valley. The lack of a body, or knowledge of what has happened to him, can have296 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 anythingelse and we were afraid to ask for details .107 serious, unforeseeable consequences. 298 Imtiaz's sister claimed to haveseen 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 thehouse 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. Hewas 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 wasone 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. 300298 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, shesaid, we asked ourselves - how can it be Imtiaz ? But on none of theseoccasions 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 aregiven there , she said. Once, Justice Parray, the then Chairperson,offered to arrange for compensation but they rejected the offer. Wedon't want compensation for Imtiaz; we just want him back , shesaid. Mohammad Akbar Sheikh (2003/5), a daily wage labourer, left homeon 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 photographin a newspaper called Chattan, published from Srinagar, which showed Akbar in custody. 302 The caption did not mention the location wherethe 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. 303The 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 outsideKashmir, 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 memberslocked in a room. Neighbours reported seeing Bashir being taken away. A picket of the local police, and the keepers of NaqshbandSahab ,305 also witnessed his arrest. However, the police picket did notfile 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 arenanwais. 307 There is no point in going to court.Ali Mohammad War (2003/7) was in the carpet business. One day heleft 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 electricalgoods 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 businessfor 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 familyreceived a phone call from Nepal, informing them of the arrest of both brothers. 309 Since many Kashmiris were arrested in Nepal that year, thearrests 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. 310Shafi'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 Duringinterrogation 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. 313The 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. 314312 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. 315In 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. 316After the arrests the raids on the Rah house have stopped completely. Ghulam Mohammad Sofi (2004/2) and his nephew, Wazir, were arrestedby a joint force of the Nepali and Indian police on 16 August 2000. 317 The Nepali friends with whom Ghulam Mohammad was diningthat night were also arrested. 318 Wazir was released after about 10days. 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 byfive 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 abouthim if you want to live here .319The 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 ICRCinformed 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 courtdecide. 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, wasnot 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 tomean 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 establishedby law . By the time of the insurgency in Kashmir, the judicialinterpretation of this expression had evolved from a narrow, pedantic view in the AK Gopalan 322 case to the position articulated in the ManekaGandhi case. 323 This case also overturned the notion that the FundamentalRights 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 ofthe 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. 325Based upon what it called the brooding omnipresence of Article 14 inthe Constitution, the Supreme Court derived a doctrine of the courts' obligation to do justice in exercise of its public law jurisdiction, asdistinct from the remedies available to aggrieved persons under normal legal processes, called private law remedies. The Nilabati Behara326decision and the DK Basu 327 decision, two cases that have become partof 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 enforcingthe fundamental rights guaranteed in the Constitution . It saidthat 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 .328324 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 actionas 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. 329Apart 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 Despiteits 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 tobe 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 investigationof 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 .332Thus, 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.333Given 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. 334In 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 otherperson or authority to do so. 336 The power to pass judgement and decree, including the power toenforce 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 beable to identify who (or what) to summon. 336 A civil court has the power to appoint commissioners to record evidence on itsbehalf 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 servenotice/ 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 FarooqAhmad Shalla (96/3). 338 On 31 October 1996 the Court ordered notice ofthe 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 freshparticulars of the 22 RR.339 Ultimately, on 27 March 1998, the Court337 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 therespondents 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 BashirAhmad Bhat (97/7) were served within two months. However, 10 monthsafter 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 notingstates that fresh notices, as ordered, could not be issued due to nonavailability of copies .342 Once copies of the petition were received fromthe 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 bythe 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 Thedifficulties 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. Thereis 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. 345The problem varied from complete lack of information about the identityof 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 unitcould 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. 346345 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 Bnon 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. 347Abdul Gani Najar (94/6) was arrested from his village home during acrackdown by the army. 348 After the crackdown, the villagers lodged areport 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 asrespondent no. 4. The army did not enter an appearance before the High Court. In his report the Inquiry Judge recorded that respondentno. 4 could not be served because no address was provided for it .349Based 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. 350In 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 was347 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 Headquarterscannot 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. 124 filed. 351 The High Court must be faulted on at least two counts. First, itought 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 fromhis 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 firstreply 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 RKSingh, 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 lodgea report with the police station from the jurisdiction of which his son disappeared . The absurdity is obvious. Merely because the petitionerhad 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. 125 Fayaz Ahmad Khan (98/5) was arrested from his home in Srinagar bysoldiers 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 forthe 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 ParshadYadov of the 197 Bn.354 The army filed objections to the inquiry reportbefore 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 MajorYadav 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 theinquiry, disposed of the case with an order for a fresh inquiry into Fayaz Khan's disappearance. 356The case of Mohammad Afzal Shah (97/12) is the only case in ourdatabase 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. 126 (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 , andthe 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 wereimposed upon it for not responding to the petition within the time permitted. 357 Before the inquiry ordered into Afzal's disappearance, eyewitnesstestimony 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 armyuniform arrested Afzal and took him away .358 Therefore, the inquiryreport 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. 359357 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'sfamily 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 notresponsible for Afzal Shah's arrest. It was stated that the BSF uniform ofthat period was very distinct from the army uniform and therefore, it wasimpossible 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 wearingarmy uniforms .127 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 inthis 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 itupon them for failing to obey its orders in such matters. Technically speaking, a court is entitled to proceed ex parte if a partydoes 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 governmentand 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 theCourt was reduced to, virtually, begging for replies to be filed. The following cases illustrate the abject failure of the Court to enforce its orders. 361After 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 replyshowing law and authority for Rouf's arrest. Eight months later, theCourt granted one week, further, to the GA (government advocate), to fileobjections . Since the reply was still not filed, two weeks later the Courtordered 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. 128 that he look into the matter personally. Another three months later, thegovernment 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 criticisingthe state authorities for being so negligent and callous about the fate ofthe 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 theCourt. 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 therespondents 10 days time to file objections. Four months later the Court said last opportunity of two weeks granted for filing objections.362 Twomonths later it again granted two weeks for filing objections, imposing a cost of rupees two hundred for non-compliance of its earlier order.363Shortly thereafter objections were filed but without a supporting affidavit. 364 Nearly three months later the affidavit had still not been filed andthe 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 acounter affidavit. Seven months later, the order sheet recorded that the state government had filed an affidavit before the registry but it is noton 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. 129 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 respondentsfour 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 twomonths 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 filea 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. 367After 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 aparody 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, on366 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 ofbetter particulars. 367 The State government's reply was erroneous. The release mentioned thereinpertained 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. 130 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. 4.370No 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 armyfiled 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 wantof 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. TheCourt'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 Onnoticing 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 20Grenadier at relevant time while posted at District Budgam . Fourweeks time was granted to it for this purpose. 373370 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. 131 Meanwhile, the state government had, once again, filed a reply describing the story of Ashiq Hussain's earlier arrest and release. 374 It took theCourt 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 theirobjections within three months but the state government had not filedits objections till February 2004, 17 months later. In March 2004, six anda 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. 375The 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 the62 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. 132 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 inquirieswhere 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.378In 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 testifiedbefore 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 jurisdictionin 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. 133 ance. 380 They identified him from his photograph, which was shownto 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 somewhereout of the Battalion . Later, they claimed that the whereabouts of thethen Commandant/ Deputy Commandant are not known to the present officers . Finally, towards the end of the inquiry, the CRPFinformed the Inquiry Judge that the then Commandant and DeputyCommandant 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 themonth of October 1990 , arguing that no such … registers are maintainedby the Battalion . However, in support of their contention thatthey 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 interrogationand necessary action on 21.10.1990 . The letter named the co-detaineesbut 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. 134 The inquiry report, commenting upon the conduct of the CRPF, said that it clearly indicates that they have applied dilly-dally tactics and didnot 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 .381The case of Farooq Ahmad Khan (95/3) illustrates the failure of theInquiry 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 replystating that since the allegations in the petition are only against theCentral Government security forces, the State respondents were not liable and were, therefore, entitled to be relieved of the burden of defending the case .383381 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'sfamily 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 theywere 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 inFarooq'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 (tohis 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 thesituation. 385Twenty five year old Mushtaq Ahmad Chacha (95/8) was arrested bythe 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 the384 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 becarried 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 toldthat 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. 388All 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 thestate 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 recordthat the respondent/ State has filed palpably false affidavit regardingthe arrest and escape of Mushtaq Chacha and asked the State government to show cause Why action should not be taken againstit 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 by388 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, accordingto 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 Facedwith this gross contradiction, the High Court ordered an inquiry into Mushtaq's disappearance. 391In a herculean effort, the Inquiry Judge examined numerous witnesses, including several BSF personnel, in an attempt to unravel the truth. 392 The40 page long inquiry report discusses the respective stands of the parties and, the testimony of the witnesses, in extenso, exposing the modusoperandi of the police and the security forces. The testimony of the BSFwitnesses 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 inquired389 Remand has a clear meaning is law. It is 'taken' by the police or otherinvestigating 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 hadtaken 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 BarAssociation 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 policeclaimed his remand was from 13 July to 27 July 1995. When viewed in thecontext 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.394The 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 boundwith a rope and fetters, tied on the other side with the belt ofNirmal Singh. SI (Sub Inspector) Nirmal Singh, while admitting that Generallythey 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 whichMushtaq 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 regardingMushtaq's escape was delayed for several days because they were searching for him but none of their witnesses supportedthis 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 withthe 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 remainedin 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 September1995ordering 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 policedossier submitted to him was based on facts. He stated that noonebrought 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 orencounter in that area on the date in question. They asserted that theywould have come to know if such an incident had taken place. The inquiry report disbelieved the stand of the BSF, holding that theversion of B.S.F. seems to be a fabricated one . However, it castigatedthe police, for its conduct in utter violation of the law and held the SP,CID (CIK) mainly responsible for the custodial disappearance ofMushtaq . 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 criticisedthe DM, Srinagar for acting mechanically and for not caring toascertain 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 thestatement 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 escapefrom BSF and was lodged in Police Station C.I.K, Srinagar .396395 He was not impressed by the BSF claim that a Departmental Staff Court ofInquiry 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 underBSF control. 140 The focus of the state government's objections was on pointing out thecircumstances 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 PSAwarrant against Mushtaq after he had escaped from the custody of theBSF. 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 ofMushtaq's parents to imply that the BSF was lying and that the Inquiry Judge had erred in failing to appreciate this fact. 397The High Court termed the stands of the BSF and the Police self destructiveto 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 arenot 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 …. 398Quoting from various judgements of the Supreme Court, the Court held that The case at hand is one of such cases where compensation … hasto 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 thousandbe 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 registeredat 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 .399V. 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 producethe body , after such further hearing as necessary, should then have resultedin 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. 401Most 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 habeascorpus on the ground of absence of the petitioner's counsel, exceptafter verifying the reasons for such absence. 402It 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 seemto 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 petitionafter 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 ofinterest to his family, while dismissing the petition. The case was actuallyfixed for hearing the respondents' arguments on the question of compensation. In Latief Khan's (91/1) case, the inquiry report, on the basis of whichthe 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 wronglyconcluded 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 petitionwas disposed of by the High Court. Had Syed Shariefuddin's (91/6) wife been represented, she might haveraised 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 ofillegal detention. Aslam Mir (93/2) had been released by the time the Court disposed ofthe petition Bashir Ahmad Lone's (94/2) family had become completely disheartenedby 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 showsthe 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 Courtto ignore the inquiry report while disposing of their petition. In Riyaz Gilkar's (95/4) case, the High Court ordered the registration ofan 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 tothe police to register an FIR and to investigate it expeditiously. Mohammad Amin Bhat (95/7) had been released by the time the HighCourt came to dispose of the petition on his behalf. Alam Sher's (95/9) case is a classic example of why a habeas corpuspetition 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, ifany 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 thatwere 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 wouldhave 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 hisenforced disappearance a disputed question though the inquiry hadclearly 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 conclusionthat 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 absenceof 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) familywas not interested in pursuing the matter. Once again, the dismissal of Mushtaq Shagoo's (2000/169) petitionwas 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 acceptanceof 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. 403But 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. 2 Part150 Appendix – 1 Lahu Ka Suragh 404KaheeN 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 Faiz 405405 Translated by Agha Shahid Ali. 152 Appendix –2 Table: Personal and Detention DetailsNote: Information tabulated states circumstances at time of the arrest connected with the petition filed before the High Court (where such a petitionwas 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 Unit 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 Unit Arrested/ Disappeared Dt. & Place Circumstance of Arrest Released/ Killed/ Disappeared 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 LineS. 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 havebeen 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; whichwas 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 theofficers. Sanction refused in 2002.No specific accused named in petn., just securityforces . Inquiry proceedings dropped on requestof 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, thoughthere 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 tobe 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 DKBasu 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 disputedquestion. 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 petitionerwas 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 parrotlike fashion . Ordered a 2nd inquiry. HC factuallyincorrect 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 nonexistententity 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, eventhough 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 nothingto 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 usedby 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 Indianarmy Article 14 The equality provision of the Indian constitution,part of the Fundamental Rights, guaranteed to all persons Article 19 The compendium of "freedoms" guaranteedto 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 libertyunder the Indian constitution Article 22 Constitutional guarantees against arbitraryarrest and detention, also part of the "fundamental rights" guaranteed under the Indian constitution to all persons Auto rickshaw Three wheeler vehicle commonly used as amode of public transport in India CAT Term used for those who act as informers ofthe security forces. Chacha Literally, father's younger brotherChowk Square in a city, town or villageChowki Post (as in police chowki/ post)Chowkidar Watch manCrackdown Slang for 'Cordon and Search' operations bythe security forces. Dargah Mausoleum of a Sufi saintDe facto In factDe hors Outside of; not within the scope ofDe jure In legal or, formal termsDera Resting placeDharna Sit-in protestEx-gratia Gratitious relief granted to overcome a disaster199 Gau yatra A Nepali festivalGujar/ Gujjar/Gojar A nomadic communityHabeas corpus Writ issued by the higher courts of the land, seekingthe physical production of the person detained illegally by any person, usually the law enforcement agencies Ikhwaini A term used by Kashmiris for a surrenderedmilitant who works for the security forces Imam A person who guides; in Kashmir, generally theperson who leads the prayers in a mosque. Imamat/Imammat Literally – to guide: e.g. a preacher who guidesthe Muslim Ummah. In extenso At full lengthJamait-e-Ahle Hadis An association of Sunni Muslims who belongto the Ahle Hadis sect. Jamait-e-Islami Literally: Islamic associationJawan SoldierJhelum The main river of the Kashmir valley. It flowsthrough the entire valley, exiting at Baramulla Kabariwallah Collector of junk and used goods, for the purposeof recycling and sale Kalaidar A person who applies a tin polish on copper/bronze utensils. Kanal A measurement of land in length and breadthequivalent to 605 sq yards Lakh One hundred thousandLocus standi Latin: In the context of judicial proceedings,the right to prosecute a case before a court Lok Sabha Lower house of the parliamentMohalla A local area; usually consisting of residentialhouses Mufti Literally: a person trained in Islamic law, competentto issue fatwas. In Kashmir, also a surname or caste, e.g. Mufti Mohd. Sayeed, a former chief minister of J & K. Mukhbir InformerMukhiya Another expression for the village headman200 Mulaqat MeetingNallah A water channel or a ravineNamaz PrayerNanwai Traditional Kashmiri bakerNikah The formal ceremony of a Muslim marriageNumberdar/Nambardar An officer at the village level who registersbirths and deaths for the purpose of record Operation Eagle An operation launched by the security forcesin the early nineties, in which suspected militants were killed as a matter of policy Patwari A land records & revenue officerRickshaw A tri-cycle based public transport vehicleSarpanch The head of a traditional village institutioncalled 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 secretlyand wrongfully to confine person - Ranbir Penal Code SRO 43 An executive order providing government jobson compassionate grounds to the next of kin of a victim of terrorist violence Subedar Literally, the 'holder' of a province (Suba) undera king or an emperor. Currently, a non-commissioned rank in the Indian military. Tehsil A demarcated area within a district or a subdistrict Tehsildar A revenue officer who heads a sub-district orTehsil 201 List of Abbreviations and Usages ASP Assistant Superintendent of PoliceBn BattalionBSF Border Security ForceCID Criminal Investigation Division (A branch of the Statepolice establishment. ) CIK Counter Intelligence (Kashmir) {As distinct from CIJ – CounterIntelligence (Jammu}. Both wings are part of the State police establishment and primarily deal with anti terrorist operations.) CJM Chief Judicial MagistrateCMP Civil (Cr. – Criminal) Miscellaneous Petition (Any applicationin the main petition for orders of an interim nature.) CO Commanding Officer (A term used to describe an officerof any rank who is leading a group of soldiers.) COI Court of InquiryCRPF Central Reserve Police ForceDB Division Bench (Signifies a court comprising two or threejudges, sitting together. A habeas corpus petition is usually heard by a single judge bench in the J&K High Court.) DGP Director General of PoliceDIG Deputy Inspector GeneralDJ District Judge (The head of the district judiciary.)DSP Deputy Superintendent of PoliceFIR First Information Report (Any information to the policeregarding a cognizable (serious) offence. Lodged under section 154 of the Code of Criminal procedure GA Government Advocate (Signifies a lawyer acting on behalfof the state government.) GOC General Officer in CommandHC High CourtHM Hizbul Mujahiddin (A militant outfit.)ICRC International Committee for the Red CrossIG Inspector GeneralIGP Inspector General of PoliceJIC Joint Interrogation Centre.J&K Jammu and KashmirJKLF Jammu and Kashmir Liberation Front (Formerly, a militant outfit.)202 JKLI Jammu and Kashmir Light Infantry (A unit of the regularIndian 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 orderof a Single Judge of the High Court to a Division Bench of the same court.) MLA Member of the Legislative Assembly (A member of theState legislature. ) NC National Conference (A political party of J&K.)NHRC National Human Rights CommissionObjs. ObjectionsPAPA-II One of the most famous interrogation centers in Kashmirlocated 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. PetitionPOK Pakistan Occupied KashmirPS Police StationPSA Public Safety Act (A law permitting preventive detention,applicable only in the state of J&K) RR Rashtriya Rifles (A paramilitary force set up specificallyfor counter insurgency operations. Manned by retired soldiers and led (mostly) by serving army officers.) SC Supreme CourtSHO Station House Officer (The officer in charge of a policestation.) SHRC State Human Rights CommissionSOG Special Operations Group (The STF (see below) was renamedthe SOG after it became notorious for the indiscriminate brutality of its operations.) SP Superintendent of PoliceSSP Senior Superintendent of PoliceSTF Special Task Force (A wing of the State police set up specificallyfor "anti-terrorist" operations.) TADA Terrorist and Disruptive Activities (Prevention) Act (TheAct has since lapsed and is no longer on the statute books.) UOI Union of India |
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