In Search of Vanished Blood

Ashok Agrwaal

Abstract

Deaths in custody/ disappearance from custody are endemic in India and, have been so throughout its independent history. The reasons for this state of affairs are complex and, it would not be correct to assign the entire responsibility for it to any one factor, or pillar of the nation-state. However, there can be no gainsaying that the defects in the approach of the judiciary have played a pivotal role in the failure of the guarantee of the right to life. The report examines some of these shortcomings, using the aperture provided by one of the world’s best known legal remedies, the writ of habeas corpus, the sole remedy available in law in case of a violation of the right to life and liberty, guaranteed by Article 21 of the Constitution. In technical terms therefore, this document is 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. The theme of the report, as distinct from its technical nomenclature, is to portray the impossibility of justice for the victims of impunity: particularly in Kashmir but the principle being applicable to such victims everywhere. Though the impossibility is portrayed through the failure of the constitutional mechanism for the protection of the guaranteed right to life, it is actually far more encompassing.

The main thrust of the study is based on an examination of 96 cases of alleged enforced disappearance of Kashmiris. Eighty seven of these cases resulted in the filing of a petition for a writ of habeas corpus before the Srinagar Bench of the Jammu and Kashmir High Court. No such petition was filed in the remaining nine cases. They were included in the study sample for purposes of comparison; i.e. to see whether the filing of a petition made any difference to the ultimate outcome in the matter. The only criterion for the inclusion of each of the 87 cases was that they had 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. The nine cases which did not result in a petition include the case of one of two young men who were arrested at the same time but the family of one of them decided not to file a petition for fear that it might antagonize the army and lessen the chances of their son coming home alive. These nine cases also include three cases of disappearances of Kashmiris from Nepal. These three Kashmiri businessmen were arrested by the Nepal police at the behest of the Indian authorities. The Nepal police informally acknowledged their arrest and said that the men were handed over to a team of police officers from India. Officially however, they denied the arrests. The Indian authorities took the stand that since the men were admittedly arrested by the Nepali police, they should be asked to account for them. Petitions before the Delhi High Court and the National Human Rights Commission at Delhi were to no avail. Till date the families have not received any information of their whereabouts. These three cases illustrate that the impossibility of justice crosses the geographic boundaries of the state of Jammu 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.