Amnesty Report: Challenges to Decisions on Sanction

 

KL NEWS NETWORK 

SRINAGAR

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Three families have directly challenged the decision of the MoD to deny sanction for prosecution in recent years: that of Manzoor Ahmad Mir, who was subjected to an enforced disappearance in 2003 and believed to have been extrajudicially executed; Ashiq Hussain Ganai, who was allegedly tortured to death in custody in 1993; and Javaid Ahmad Magray, who was allegedly extrajudicially executed in 2003.

In 2011, the family of Manzoor Ahmad Mir filed a petition in the Jammu and Kashmir High Court challenging the MoD’s decision to deny sanction to prosecute a Captain in the Army for Manzoor’s abduction and apparent murder in September 2003.88 The MoD’s decision was challenged on the grounds that it was arbitrary and a violation of Article 14 of the Indian Constitution (equality and equal protection before the law). To date, the Union of India has failed to file a response to the petition in the High Court. On 23 June 2015 the family’s lawyer informed Amnesty International India that the case had not been listed for hearing before the High Court for several months.

In 2003, the police filed charges of murder, kidnapping, evidence tampering and common intent against a Captain in the 23rd Rashtriya Rifles and two local informers, following an investigation into the disappearance of Manzoor Ahmad Mir. In a letter dated 9 May 2013, the Deputy Commissioner in Baramulla wrote to the Principal Secretary, Home Department, seeking permission to declare Manzoor Ahmad Mir “dead” and for benefits to be issued to his surviving family. He stated in the letter that: “The investigation indicates that the subject [Manzoor Ahmad Mir] was picked up by the above mentioned accused Army officer and his associates who killed him during interrogation and destroyed his dead body to save their skin for which section 201 of RPC (evidence tampering) was added. The report of the Inspector General of Police CID Jammu and Kashmir…reveals that on 7 September 2003, the accused Army officer…along with two civilian informers resident of Delina, Baramulla, searched his house, picked up the victim and since then his whereabouts are not known.”

The Army claimed protection for the accused Army Captain under Section 7 of the AFSPA stating that “no proceedings can take place against the accused till necessary prosecution sanction is obtained” from the Ministry of Defence. Based on this statement, the local judicial magistrate in Baramulla refused to take cognizance of the charges on 31 August 2005 until the Central Government granted sanction in the case. Manzoor Ahmad Mir’s family filed a petition challenging the order of the judicial magistrate before the Jammu and Kashmir High Court. On 21 April 2007, the High Court stated that the Magistrate “should not have acted on the application of the Army, as the Army was not a party before the court at all.”

The Ministry of Defence denied sanction in the case on 23 February 2009, justifying its decision on the grounds that “the allegation was motivated by vested interests to malign the image of security forces. Neither any operation was carried by any unit in the area nor was any person arrested as alleged.”

In an interview with Amnesty International India, Bashir Ahmad Mir, Manzoor Ahmad Mir’s brother said, “The whole system is corrupt. We are fighting for the guilty to be put behind bars, but it is impossible… The main aim is that the guilty should be punished so that no one else has to suffer this.”

In the case of Ashiq Hussain Ganai, who was allegedly tortured and killed by the army in 1993, the Ministry of Defence denied sanction to prosecute in 1997 without providing any reasons for their denial. On 14 May 1999, the family filed a writ petition before the Jammu and Kashmir High Court challenging the denial of sanction to prosecute the two army personnel identified by the police investigation. Multiple court adjournments followed, and the Jammu and Kashmir High Court granted further time to the central government to respond. The most recent court order available is dated 20 November 2006, in which the High Court granted further time to the Union of India to submit a response to the challenge. No further action is known to have been taken.

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