There is more to it than meets the eye. Ashok Agrwaal, a prominent Supreme Court lawyer who authored the SAFHR’s report on writ of Habeas Corpus in Kashmir says that his group has found courts siding with the state and rather than the common man. In conversation with Zubair A Dar. A group of lawyers concerned about violation of human rights in different Indian states, investigated the lethargy shown by Jammu and Kashmir High Court in dealing with the writ of habeas corps. The report prepared between 2002 and 2005 was formally released at a function in Srinagar’s District and Sessions court. The group, however, claims that they have just hit the tip of the iceberg and are contemplating another report about the ‘use’ of Public Safety Act.
“It starts with the fact that we do not uncritically accept our environment,” says Ashok Agrwaal, one of the lawyers in the group who prepared the report about the writ of Habeas Corpus titled In Search of Vanished Blood for the Kathmandu based South Asia Forum for Human Rights (SAFHR).
Agrwaal, who earlier worked in Punjab to document what he terms as state repression, says that the phenomenon of lethargy is not a unique feature in Kashmir, though its incidence is higher in this conflict zone. “Even Supreme Court is notorious for shouting verbally and then passing orders which are at variance with what they say,” he says. “The apex court is always lenient towards the government.”
The lawyer says that he himself once viewed the justice system as independent. “But now I realise that justice system is as much a part of the state as executive and legislature is,” he says. “Being a part of the state, judiciary defends it and for a body with statist views, anything is justified.”
But the group sees a bigger challenge in judiciary siding with the state. “In parliament, we can vote out the MPs. For executive, we have a system of complaints. Because judiciary claims to be above law, there is no complaint system,” says Agrwaal. “This has to change and courts need to be brought under more scrutiny.”
Quoting example of the group’s case against Punjab government, another prominent lawyer and civil rights activist Tapan Bose says that the state government defended itself by stating that actions were taken in national interest.
“The Punjab government said ‘you are accusing us and if tomorrow we refuse to defend the state, do not blame us’” says Bose. “Supreme Court asked CBI to investigate and the investigating agency found prima facie evidence. SC asked the state government for compensation but Punjab Government tried to stall it. Now NHRC and SC have come to a conclusion that compensation should be granted. But for fixing responsibility, SC and NHRC do not want to take concrete steps.”
The group says that even the suicide of SSP Ajit Singh, who was arrested for involvement in many cases including the murder of Baghat Singh’s nephew, is suspicious. About human rights violations and custodial disappearances in Kashmir, the group claims that the government had already accepted that security forces were responsible. “You should check the reports of the DCs in SRO 43 cases. After proper investigation, they write that the person was lifted by security forces and never seen afterwards. This is clear acceptance of the fact by the state,” says Agrwaal.
He, however, maintains that state government has little control over the issue. “Most violence is done by the central government as forces come under their control. State government can not control it. But state government doesn’t want to accept that it has lost control.”
Dismissing the claims of Justice (Retd) Bashir Kirmani, who on the day of release of the book had stated that there were duplications in the report, Agrwaal says, “By stating so, the Justice was questioning the records of his own court and its efficiency. Every bit of information in the report is based on court records and accounts of victim’s family.”
Questioning the court’s credibility further, the group says that in 250 cases of Habeas Corpus they studied, they found that court was delaying proceedings to suit the state’s needs. “As if the court deliberately decides cases in accordance with detention period. The court says that it quashed 10,000 cases of detention. But at what time? It became useless then,” says Agrwaal.
It is this claim that the group is likely to contest in their next report about Public Safety Act.