Parvez is a lawyer specializing in cases involving human rights violations. A leading light in the human rights movement in Jammu and Kashmir, he serves as a patron of the Association of Parents of Disappeared Persons (APDP).
The power to take a person into custody seems an inevitable character of the very conception of the state. This tremendous power needs strong checks and balance to ensure that the exercise does not turn tyrannical and despotic. Communication of the reasons for arrest, information to relatives and friends as to the place of detention, production before an independent judicial authority, right to adequate legal help, right not to be tortured in custody, presumption of innocence and a fair trial are some of the efforts to ensure checks and balance placed on the power to take into custody.
However, in areas of social movements, whether it is Marxist-Leninist groups in Telengana, the Naga people’s struggle for sovereignty, the Khalistani movement in Punjab or the movement for azadi in Jammu and Kashmir (J&K), the phenomenon of disappearances appears to be one of the principal methods adopted by the state to suppress movements. The state and its agents, after taking a person into custody, do not follow any of the measures for checks and balance imposed on the power to do so. Reasons for arrest are not disclosed; no production before a magistrate takes place; the place of detention is not disclosed to relatives or friends; there is no access to a lawyer; presumption of innocence is thrown to the wind; and there is no protection against torture and abuse. Disappearances or enforced disappearances have emerged to describe this strategy or method adopted by the state.
The scale of the use of enforced disappearances as a method adopted by the state can be gauged from the formation in 1994 of an organization called the Association of Parents of Disappeared Persons (APDP), comprised of the parents and relatives the individuals who have disappeared. At a conservative estimate based on information collected from parents, relatives, friends, near and dear ones, the number of individuals who have disappeared in custody since 1989 is as high as 8,000.
Disappearances in Jammu and Kashmir
Enforced disappearances in Kashmir started in 1989, following the outbreak of armed conflict. The heavy deployment of security forces (more than 600,000—the highest number of army personnel during peacetime anywhere in the world) as part of the effort to suppress the movement for independence has contributed fundamentally to this problem. Enforced disappearances of persons were part of the larger policy of repression followed by the state, including other means such as extra-judicial killings, custodial torture, rape, forced labor, etc. A large number of civilians, students, political activists and militants have disappeared in custody, both during direct central rule (1989-1996) as well as rule by elected state governments (1996-2004).
Besides struggling to meet economic needs in the context of the disappearance of often the sole earning member, the relatives of disappeared persons continue to suffer constant agony and uncertainty, trans-generational trauma and post-traumatic stress disorder. Over a number of years in cases of disappearances, and custodial deaths and torture, the National Human Rights Commission (NHRC) and the courts have given some relief in the form of compensation. The state did not render any assistance, either directly or even indirectly to the organization formed by the relatives of disappeared persons.
The economic dimensions of disappearances are of considerable significance. The disappearance of the earning member of the family threatens the very survival of the whole family. The “half widows,” (spouses of disappeared persons) are often thrown out of marital homes, along with their children, following the disappearance. They are forced to depend on their own often-impoverished parents. This economic dependence affects the education and the future of their children.
In majority of the cases, the relatives of the disappeared fear that those who had supposedly disappeared may have died during torture, and their bodies disposed of. For surviving family members, the despairing wait for their return is combined with the struggle to make ends meet. Personal laws do not allow distribution of the property of a disappeared person unless he is “declared” dead, and surviving family members have to wait for seven (7) years to even apply in court to have some access to the property, and ease the struggle of survival. The process takes another two (2) years in court. Half-widows and family members of disappeared persons therefore, have to wait at least nine (9) years before being able to use the property.
Muslims believe in four (4) schools of thought: Hanafi, Malaiki, Shafifi, and Hambli. According to the Hanifi school of thought, a woman has to wait for 90 years to remarry in case her husband disappeared. This led Muslim uleema of the Hanafi school of thought to think of an improvization in the existing order, therefore a clause was borrowed from the Malaiki school in which the woman has to wait for seven years, some say four, and then she can remarry.
On behest of Maulvi Ashraf Ali Thanvi, the previous stand was modified and finally the Dissolution of Muslim Marriage Act was passed in India in the year 1939. It was adopted by the state of Jammu and Kashmir in the year 1942 and since then, this law prevails in J&K. There is a clear clause in the Dissolution of Marriage Act which states that:
“A woman who is the wife of a person according to Muslim law shall be entitled to obtain a decree for the dissolution of marriage on any of one or more of the following grounds: that the whereabouts of the husband have not been known for a period of 4 years. She can then go to court and seek permission to dissolve the Marriage.”
For women whose husbands disappear, the option of re-marriage offers some source of both emotional and financial support for themselves and their children. For half widows, life is tough. Unaware whether their husbands are alive or dead, their lives and social status become uncertain. There are half widows in Kashmir today who have been waiting for 13 years and have not remarried. If they do want to remarry, they are caught in the midst of the debate among Muslim theologians of different schools of interpretation of Islamic law, about how long a woman has to wait after her husband’s disappearance to remarry. The Dissolution of Muslim Marriage Act adopted in J&K allows a woman to approach the court to dissolve her marriage if her husband’s whereabouts are not known for four years. However, theologians have not arrived at any conclusion on the matter. Another law was enacted later stating that such a woman whose husband has disappeared will have to wait for seven years. While scholars disagree over whether if the first husband comes back the first or the second marriage will be dissolved, and whether the children the woman has borne from the first or the second marriage will be considered legitimate, the women caught in this situation live under this constant stress and uncertainty about their own and their children’s future.
The State Human Rights Commission (SHRC) has been recommending ex gratia and compassionate employment under SRO 43 to the next of kin of the disappeared persons. Since the order of the SHRC is not mandatory on the Executives, it takes years for the state government to implement the recommendation made by the SHRC. While the relatives are directed to produce the documents even the recommendatory letter from the influential persons of the locality or surpanch (village head). The district magistrate arbitrarily releases the ex gratia relief on political recommendations. Lots of families finally approach the High Court for implementing the Recommendations made by the SHRC. Despite promises about cessation of human rights violations during its rule, the present government has not been able to deal with the issue. Disappearances continue. Since 2 November 2002, when the new government took over, there have been 144 cases of disappearances from different parts of the state, which have been brought to the notice of the state government. Disappearances have not only taken place in J& K but Kashmiris have also been arrested in Nepal. Those arrested are usually handed over to Indian intelligence.
Disappearance—and After
The security agencies after arresting a person in full public gaze, crackdowns, search operations (or sometimes people are picked up from highways) promise the relatives of the detainee safe and early release of the arrestee. However, the release is never affected. On the contrary, the arresting agency, after a few days, denies the arrest and a shocked family is made to search for its missing member for years together without any results.
There have been instances when the arresting agency has fed concocted stories about the arrestee’s escape from custody. The police does not entertain missing reports with regard to these persons. In some cases, the courts order inquiries and identify the culprits. But the culprits cannot be brought to book as the government of India refuses to grant necessary sanction to prosecute under Article 6 of the Armed Forces (Special Powers) Act.
Whenever a person is arrested—during raids or routine patrolling or during cordon and search operations (crackdowns)—the relatives of the arrestee exhaust all avenues to locate their family members.
First, the law enforcing officials are approached to know the whereabouts. They invariably assure them that the detainees will be released shortly. After a few visits of the helpless relatives, the reply “politely” hurled at them is the denial of the arrest altogether. The relatives, in such a desperate state, approach other security officials for help.
They move from pillar to post. They move applications to the civil authorities including Deputy Commissioner and Divisional Commissioner. Some of them approach the politicians of different political parties who seem to be equally helpless. Rare instances apart, the police officials invariably refuse to file the First Incident Report (FIR) against the security forces. These exhausting efforts cost lots of money and mental torment and harassment.
In most of the cases, the relatives have spent thousands of rupees to know the whereabouts of their missing loved ones. They have traveled to know the whereabouts of the disappeared in different jails of India like Coimbatore, Jodhpur, etc. The relatives travel to different interrogation centers in and outside the state. The relatives, at the first instant, are hesitant to seek the judicial remedy, as they fear that it will endanger the life of the detainee. Finally with the passage of time and exhausting all the options, the dejected, desperate relatives take the legal recourse.
Role of the State
1. The Executive
In 1990, a District Screening cum Coordination Committee was formed for granting ex gratia relief to family members of persons who are reportedly missing, or whose bodies are not identified. The Committee had powers to decide if a missing person may be presumed dead and ex gratia relief granted to the next of kin. A certificate obtained from the district magistrate that the person disappeared or killed was not involved in militancy-related activities was required, and as per another order, the members of the next of kin in such cases were also to be given a job by the government.
However, from their inception, members of the police and security forces were made part of these Coordination Committees. They are therefore structurally flawed. As the same forces are responsible for most of the disappearances, a fact for which there are often eyewitnesses, presumption of death of missing persons amounts to an acknowledgement of custodial death by their own men. There also appears to be some checking on the functioning of these bodies. The chances of justice in such a situation are obviously slim. It is hardly surprising then that this body did not bring any relief to those immediately affected by enforced disappearances. In 1996 the elected state government stated its resolve to bring justice to survivors, though disappearances were continuing after it came to power.
The deputy commissioners of different districts in the state, through public notification, once again invited applications from the relatives of disappeared persons. Once again nothing tangible was done, though relatives had responded with a lot of hope. Acknowledging the non-disappearment of the ex gratia relief by the deputy-commissioners, the government took the serious view of the admitted or non- admitted delegance of the district commissioners but nothing tangible was done.
Recently, the Divisional Commissioner for Kashmir Mr. Khurshid Ganai asked people to approach the civil administration through a public notification published in the local dailies to seek help in case of disappearance of a family member or their arrest by security forces. People were asked to immediately register a complaint with the concerned police station—not an easy task given the actual balance of power between the security forces and the civilian administration in the state of J&K. They are directed in this notification to request information about their whereabouts and safety and simultaneously approach senior civil administration officials including the deputy commissioners, sub-divisional magistrates, tehsildars and if need be, even the divisional commissioner.
This was the third time that people were being similarly directed. Each time, the state had by and large failed them. Yet, once again, in 2003 tired family members of those who have disappeared approached the state officials, albeit more half-heartedly. In a meeting with the Chairperson of the Association of Parents of Disappeared Persons (APDP), a state official stated that the administration is helpless and cannot prevent enforced disappearances. This also means that little or no action can be taken against the perpetrators of these disappearances where they are security forces personnel. The only role the administration could play was in trying to ensure ex gratia relief. Yet given the limitations and structure of the District Screening cum Coordination Committee and the record of its functioning and the fact that very few have been beneficiaries of these executive orders, this stated resolve of the state government inspires little hope. Acknowledging that the non-disappearment of ex gratia relief by the deputy commissioner, the government took the serious view of this advertent or inadvertent diligence on the part of deputy commissioners.
It is accordingly impressed upon the deputy commissioners to activate the sub-ordinate revenue agency to have a detailed survey done and cases for grant of relief processed and placed before the district magistrates who shall sanction necessary relief and other related benefits in consonance with the circular instructions issued by the home department.
2. The Judiciary
Since 1990, thousands of habeas corpus petitions were filed before the J&K High Court. Yet, justice here is also delayed and thus denied. Like truth, the judiciary became also the casualty of the armed conflict. The orders passed by the judges were seldom complied by the executive, compelling one of the judges to observe in October 1994, in petition No. 850/94: “There is a total breakdown of the law and order machinery. I shall not feel shy to say that this court has been made helpless by the so-called law enforcing agencies. Nobody bothers to obey the order of the Court. Thousands of directions have been given to top administrative and law enforcing agencies which have not been responded to.” By and large however, the judiciary, like other institutions of the state, seems to have failed the family members of the disappeared. The apparent helplessness of the judiciary has only abetted the executive in arbitrarily violating people’s rights. It gives rise to the impression that the helplessness (despite the existence of the UN Resolution on Disappearances and Supreme Court guidelines –Annexures 1 and 2 respectively) is at least partially willful.
Though the lawyers of the J&K High Court Bar Association were not charging any fee in these petitions, with the passage of time, the majority of lawyers lost interest in free briefs. The disillusioned relatives also lost interest in pursuing their cases as the cumbersome judicial process had added to their agony. This in turn, worked to the advantage of the state. The majority of the petitions got dismissed due to the family members of the disappeared being unable or simply too exhausted and disillusioned to pursue the cases. Only some determined relatives are still fighting their cases. Some of them like Parveena Ahanger, whose son Javed Ahmed Ahanger disappeared after being arrested in 1990, have been fighting legal battles for more than 14 years. Seeing the long wait for justice through the courts as well, the relatives of those who have been subjected to enforced disappearances recently are now hesitant to file the petitions.
The courts, in habeas corpus petitions that were filed by the relatives have either ordered the judicial inquiries invariably conducted by district judges or chief magistrate of different districts. Ninety percent (90%) of the judiciary inquiries were conducted by the orders of the High Court judges. The inquiry officers indicated the army or security forces for the disappearance of those arrested. After the inquiry has been sent to the High Court, the High Court directs the state to pay some ex gratia relief or directs the police to file an a First Incident Report (FIR) and complete the investigation within a stipulated period. Notwithstanding the orders, the police seldom completes the investigation, therefore forcing the petitioners to file concern SHO or police officer (case- study).
Collective Action of the Relatives of the Disappeared in 2003
The Association of Parents of Disappeared Persons (APDP) was founded in 1994 as a collective forum for the relatives of the disappeared persons and to coordinate their legal and meta-legal efforts to get redress. It was initiated by the efforts of a practicing lawyer and human rights activist along with a parent whose son had disappeared in 1990. The APDP technically is an association campaigning to know the whereabouts of the disappeared person. Any person who is a victim of an enforced disappearance could be a member of the association. The association has no political affiliations but is an independent group seeking justice from the state. At the time of the formation of the association, APDP was in fact not aware of other identical organizations operating in different parts of world, such as the most famous Madres de Plaza de Mayo of Argentina.
Association of Parents of Disappeared Persons (APDP)
Despite persistent campaigning by the APDP, the government remains largely indifferent to the issue of enforced disappearances. In the month of January 2003, the Association had given two months’ notice to the state government for considering their demands which the former has not responded to. The Association then decided to go on hunger strike from 17-24 April 2003 to press their demand.
On 30 August 2000, the relatives commemorated the International Day of the Disappeared, which was covered by the regional as well as national press. Based on the press coverage, the National Human Rights Commission took and issued notice to the state government and the APDP to furnish the details. The APDP sent those details to NHRC. It appears that there has been no progress and the matter has been shelved. The state judiciary too has failed. The guidelines laid down by the Supreme Court of India with regard to arrest and detention have been grossly violated. Seldom has any perpetrator been punished or booked under contempt for violating the guidelines. The exhaustive litigation appears to show the failure of the institution to redress grievances or provide justice. Notwithstanding the institutional failure, the relatives are relentlessly continuing their struggle by resorting to other measures like lobbying with civil society groups, press, etc.
In 2002, the Association conducted a signature campaign in which thousands of relatives of disappeared persons signed the petition, which was later sent to international human rights institutions and organizations. Human rights groups from different European and Asian countries also joined this signature campaign. A copy was forwarded to the authorities highlighting their demands.
The relatives of disappeared persons are struggling on individual as well as collective levels to know the fate of their loved ones. The government is refusing to acknowledge the plight of the relatives and accepting the demands of the Association. All state governments do not want to take any action on the matter. This appears to be based on the assumption that taking action against those responsible for the disappearances would lead to demoralization of the security forces.
Disappearance is a crime against humanity, according to the Rome Statute of the International Criminal Court (ICC), adopted on 17 July 1998, persons responsible for disappearances shall be personally responsible for violation of the International Humanitarian Law. The relatives went on hunger strike on April 17, 2003 as a means to highlight their plight and in order to pressure the government in:
- stopping the enforced disappearances in J&K so that other people should not undergo similar plight and trauma they are facing;
- punishing the perpetrators responsible for enforced disappearances. Disappearances cannot be justified under any circumstances including war;
- appointment of a commission to probe into all enforced disappearances (as has been done in other countries) in J&K state that have occured since 1989 and identify the state and non-state actors responsible for enforced or involuntary disappearances; and
- providing justice to the relatives of the disappeared persons according to international standards.
APDP threatens to set a public tribunal comprising of judges, human rights activities and prominent social activist from India and state of J&K to probe into the phenomenon of disappearances in the said state.
Statement made by the Governments from time to time on Disappearances.
- Earlier, on July 18, 2002, the then Home Minister Khalid Najeeb Soharwardy of the erstwhile National Conference government admitted on the floor of the Legislative Assembly that 3,184 person were missing in the valley since the inception of militancy.
- The new Chief Minister of J&K state, Mufti Muhammad Syed on February 25, 2003 unveiled what the security agencies had been doing during 2000, 2001 and 2002. Mufti informed the State Assembly in Jammu that “Three thousand seven hundred and forty-four persons are missing in between 2000 to 2002. 1,553 persons got disappeared in 2000. 1,586 went missing in 2001 and 605 in 2002”.
- Law Minister Muzaffer Beig of the newly constituted PDP government stated on 25th of March 2003, that since 1992 December 3,744 are reported missing of whom 135 have been declared dead up to June 2002, and the number of disappearances could be even more.
- Recently, Abdul Rehman Veeri Minister of State and Parliamentary Affairs, in the legislative assembly on June 21- 2003 has come up with new figure of 3,931.
