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A Report on the Working of the writ of Habeas Corpus in Kashmir: 1990 – 2005 (Chapter-III, The Arrest)
  • Ashok Agrwaal
This report is the first part of a two part study on the functioning of the constitutional and legal redress mechanism for the protection of the most basic of rights, the right to life and liberty, during the period of insurgency in Kashmir: 1990 to 2003. The report is pivoted around a study of petitions for a writ of habeas corpus, filed by the families of the affected persons. All these persons were subjected to illegal arrest (and unacknowledged) arrest and detention by the security forces in Kashmir. Most of them were never seen again. For comparison, we have also looked at a few cases of enforced disappearance where such petitions were not filed. The report is divided into five chapters. Chapter one is an introduction. It frames a context for the report. It opens with a brief historical background, which suggests that the current situation in Kashmir cannot be dismissed as an aberration. The next section, titled 'The Spectrum of Tragedy: 1990 till date' seeks to illustrate both, the plight of the ordinary Kashmiri, and the self defeating nature of the State's response to the insurgency, through the case of Ghulam Mustafa Khan, one of the most famous "local" militants of Kashmir. The next section deals with legal issues. After, defining rule of law in terms of the limits that it places on the exercise of power, it spells out the normative framework provided by the Indian constitution for protection and enforcement of the right to life and, briefly traces its evolution over the last 50 plus years of independent Indian history. In short sub-sections, it then looks at the historical efficacy of the writ of habeas corpus in providing an effective remedy against illegal arrest and detention, the basis for the de jure and the de facto impunity enjoyed by the security forces on the streets of Kashmir is founded and, lastly, makes a nut-shell statement about the efficacy of the writ in Kashmir. This is followed by a brief summary of out findings, illustrated by snippets from the cases studied. Chapter two is on methodology. It includes a brief quantitative analysis of the data. Since in cases of enforced disappearance the arrest is invariably disputed, Chapter Three examines the validity of the allegations of arrest in each case, in the context of the evidence on record. The chapter opens with a preliminary discussion on attendant issues, including the law of arrest and the Constitutional protections guaranteed to persons subjected to arrest. This is followed by the story of arrest in each of the ninety eight cases comprising our study sample. Each story of arrest is discussed in its factual matrix, which comprises the information from the record of the court proceedings and, information from the visit to the families of the arrested/ disappeared persons. Thus, in cases where a petition was filed before the Court, I have examined the petition, the replies filed by the respondents, relevant orders passed by the High Court during the course of the petition, the report of the inquiry and, miscellaneous pleadings and documents. In cases where a petition was not filed, the narrative is based upon the information provided by the family of the arrested person plus contemporaneous record such as complaints to the police or other authorities, newspaper reports, etc. (Note: In order to avoid repetition, the report rationalises the discussion of the cases to bring the bulk of it to one place. In other words, where it was more appropriate to discuss the facts in the succeeding chapters, a cross reference is provided as a footnote.) Chapter four is an analysis of the court proceedings. It looks at aspects of procedure and substance: dissecting the why and the how of the failure of the writ of habeas corpus in Kashmir. Chapter five contains the stories of the families of the disappeared. The study was carried out in collaboration with the South Asia Forum for Human Rights (SAFHR), a Kathmandu, Nepal based regional organisation, which funded the expenses of the research. The project itself grew out of a long involvement that SAFHR's Secretary General, Tapan Bose, and I, share on issues of impunity and the right to life. The report was finalised in May 2005. Unfortunately, SAFHR has not been able to publish it till now. The version put up on this site is exactly as it was handed over to SAFHR two years ago. As such it is de hors the pre-publishing corrections, revisions, proofing, etc. It is also sans things like tables, appendices and a glossary. I intend to rectify as many of these shortcoming as I can, on my own, during the coming weeks and months. Till then, I request readers to bear with them. The abstract would not be complete with reference to those who were crucial to the research and the report. First and foremost I must acknowledge my friend and colleague, Priya Jain, who worked with me for three years on this task. She maintained the database of cases, entering information into it, as as when it became available, creating and updating individual case histories and chronologies, transcribing interviews with families and writing them up into a coherent first draft, and much more. She also travelled with me in Kashmir, interviewing the families of the disappeared. Priya was intrinsic to the whole task. We could not have functioned in Kashmir without the help of our dear friend Ghulam Rasool Dar, or Eidi sahab. From helping us find a place in Srinagar, which we made our base, to helping us run it, and manage it in our absence, he did it all. In addition, a meal at his house was the high point of each trip to the valley. Equally important to the project were our friends and colleagues from Kashmir, a group of young lawyers who gave generously of their time and energy to complete the field work. Shafat, Sajad, Imtiaz, Rifat, Subaya, Fauzia, Fasiha, Asrar, Musbast and Intekhab. Another colleague, Shahwar Gauhar, deserves separate mention. In addition there were many other people, lawyers and others, in the Srinagar High Court whose help was important. Last but not least, our taxi driver, Fayaz, who uncomplaining drove us all over the Kashmir valley, often travelling at odd hours, deserves special mention.
  • Impunity,
  • Accountability,
  • State Criminality,
  • Violation of Rights,
  • Remedy,
  • Constitution,
  • Habeas Corpus,
  • Right to Life,
  • Justice,
  • Rule of Law,
  • Kashmir,
  • Human Rights,
  • Enforced Disappearances,
  • Armed Forces,
  • Judicial Accountability,
  • Security Forces,
  • Armed Forces Special Powers Act,
  • AFSPA,
  • India,
  • Supreme Court,
  • High Court,
  • Srinagar,
  • Baramulla,
  • Anantnag,
  • Pattan,
  • Criminal Procedure,
  • Arrest,
  • Detention,
  • Torture,
  • Interrogation,
  • Custody,
  • Crackdown,
  • Cordon and Search,
  • CRPF,
  • BSF,
  • RR,
  • Rashtriya Rifles,
  • Police
Publication Date
May, 2007
Citation Information
Ashok Agrwaal. A Report on the Working of the writ of Habeas Corpus in Kashmir: 1990 – 2005 (Chapter-III, The Arrest). (2007)
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