[home]>[programmes]>[kashmir]>Documentation of
Disappearances in J&K

Human Rights Awareness and Documentation of Disappearances in Jammu and Kashmir

Over the last 14 years there have been countless reports about grave human rights violations in Kashmir by the security forces in the name of controlling the insurgency there. The army and the security forces virtually had been given a carte blanche to control the secessionist movement. The system of judicial redress embedded in the rule of law and embodied by the Constitution of India also seemed to have collapsed. The J&K High Court had been rendered virtually non est. Petitions seeking the issuance of a writ of habeas corpus were reported to be pending in thousands before the High Court. The High Court had abdicated its role as the protector of the fundamental and other rights of the people as evidenced by the one day in a week fixed for hearing habeas corpus petitions, irrespective of the gravity or the urgency of the matter. Reports indicated complete disregard of judicial orders by both the civil and the military authorities. In cases where it became impossible to disregard a court order the detainee whose released had been ordered was re-arrested immediately.

The Central and the State governments deny all allegations of widespread and grave violations of human rights in Kashmir and assert that the grievance redress machinery has been greatly strengthened by the setting up of the National Human Right Commission in 1993 and the J&K State Human Rights Commission in 1997. Custodial killings are explained as deaths in encounters or persons caught in the cross fire of such encounters. Allegations of enforced disappearances are dismissed by claiming that the people have crossed over into Pakistan Occupied Kashmir or killed in encounters with the security forces but whose bodies could not be identified. Allegations of torture and illegal detention are met with bald denials and no police station will register a case against any member or unit of the army or other security forces. The system of recording a medico-legal case (MLC) at hospitals has been dispensed with.

J&K Judicial System Under Scrutiny Jan 2002-: To document the functioning of the judicial system, more particularly, habeas corpus jurisdiction, a most important weapon in the fight for the right to life and liberty. The project involves a detailed examination of a significant number of habeas corpus petitions filed before the Srinagar Bench of the J&K High Court. In the first six months photocopies of about 270 habeas corpus petitions filed before the J&K High Court were collected. After eliminating the duplicates we focused attention on 259 petitions - 74 cases of disappearances and 185 cases of detentions under J & K 1978 Public Safety Act (PSA). Nearly two-thirds of the habeas corpus petitions filed before the Srinagar Bench of the J&K High Court challenged preventive detention under PSA. While it was known that this law had been misused, its significance in the current regime of repression was not known.

The next stage was to complete the record of each petition and to visit the families and record the information in a suitably designed 14-page pro-forma. Both tasks turned out to be more difficult than visualised. By June 2003 we had managed to complete the records of about half the petitions. Record keeping is not a strong point in any Indian establishment. The J&K High court is worse than most such establishments. During the years of insurgency levels of indifference to systems, practices and procedures were such that not even elementary records were kept. Thus, disposal registers and record room registers are missing for most of the years between 1990 and 1999.

Since January 2003 we have started with family visits, however most of the addresses listed were partial or incomplete. We have been forced to give up on a certain number of cases, as the addresses in those cases cannot be traced despite our best effort.

Capacity Building: An important objective of the project is to train people in Kashmir, including lawyers and human rights activists in documentation of human rights violations. Poor and inaccurate reporting has also been one of the major reasons why the Government of India and its agencies has been able to escape being pinned down despite extensive reportage of these violations. Keeping this in mind we have sought to associate students and young people interested in this work from the inception. Since June 2002 a group of 10 law graduates have been associated with the project.