Justice Denied: “We can’t fight for justice if we take the money”

Amnesty International India
6 August 2015 4:09 pm

The Jammu and Kashmir state government provides two kinds of compensation to victims of violence or law and order disturbances: financial relief, known as ex-gratia relief, offered without any acceptance of liability, and “compassionate employment” . The rules for ex-gratia relief detail that the compensation should be provided to the dependents of magistrates and police personnel, central reserve police forces and military, other government officials, and residents of Jammu and Kashmir who suffer death or permanent disability as a result of militancy or law and order-related violence.

For persons other than government employees, the rules state that the ex-gratia relief is only available to individuals who were not “directly or indirectly in actual violence or instigation thereof,” and “were killed innocently.” The inability of families to prove that a relative was involved in violence and killed innocently, particularly in the face of security force counterclaims over the circumstances of violent deaths, puts them in a vulnerable position in relation to a right to ex-gratia relief. A number of families said they were told by the police that if they withdrew their complaints, the police would not claim that their deceased family members were involved with the militancy – and this would allow the compensation process to proceed.

Pic: Amnesty International India
The inability of families to prove that a relative was involved in violence and killed innocently, especially in the face of security force counterclaims, makes them vulnerable in relation to a right to ex-gratia relief. Representative photo: Amnesty International India

The experience of Ghulam Mohammad is emblematic, even in this regard. His son, Abdul Hamid Dar, 30, was arrested by the army on 29 December 1995. When the family approached the nearest army camp at Sheeri, Baramulla District, the army personnel confirmed that their son was being held there, and said he would be released soon.

On 8 January 1996, the family was allowed to meet Abdul at the Boniyar camp. However, Ghulam Mohammad Dar recounted that the family was required to stay behind a fence, while Abdul Hamid was propped up on a bench a few yards away on the other side of the fence, in the army camp. Abdul did not speak. “He was seated a distance away, and we were not allowed to speak to him. He wasn’t moving,” said his father, Ghulam Mohammad. “He wasn’t alive. It was only a body we saw.” Shortly after, he said, he saw Abdul Hamid’s body brought to the Sheeri Police Station, where the Station House Officer refused to accept it. After that, army personnel at Boniyar Camp refused to let Ghulam Mohammad see Abdul. Ghulam Mohammad believes that the army personnel disposed of Abdul’s body when the police station refused to accept it.

Ghulam Mohammad says that on 20 January 1996, a few days after approaching the army camp for his son’s release, he went to Sheeri Police Station to register a First Information Report, but the officer in charge refused to register the case. “He didn’t agree to register the case, he was a very corrupt person. After eight days we came to know that the case was not registered. We had tried to register on 20 January 1996, but he did not give us a copy of the complaint.”

According to a copy of the First Information Report, the police appear to have registered the case five months later, on 24 June 1996. However, Ghulam Mohammad said that he had no faith in the police, as they had initially refused to file a complaint. So he filed a habeas corpus petition in the High Court on 11 July 1996. The Court ordered a judicial enquiry into the case on 22 July 1997. Ghulam Mohammad said that the enquiry report was submitted a year later, but he was unaware of the contents. Amnesty International India was unable to find a copy of the enquiry report.

“We were only called for hearings, they didn’t tell us anything. The army also came…[to the hearing]. During the proceedings, the army counsel would tell us that Abdul Hamid won’t come back, so just take compensation. But if we took the money, it would be like selling my son. We can’t fight for justice if we take the money,” Ghulam Mohammad said.

According to the state’s reply to the family’s petition in the High Court, the army denied the arrest of Abdul Hamid Dar and claimed that the police had him in custody at the Joint Interrogation Centre when he went missing. The Centre falls under the jurisdiction of the Jammu and Kashmir State Police.

The criminal investigations in the case lasted for approximately ten years before the State Home Department, Jammu and Kashmir forwarded the case to the central government for grant of permission to prosecute two army personnel. On 6 December 2011, the Ministry of Defence denied permission to prosecute.

Ghulam Mohammad Dar and his family were never informed of what happened in their case. A court-appointed lawyer told them that their case had been sent to Delhi. “We don’t know why or for what the case was sent to Delhi,” said Ghulam Mohammad. “The lawyer told us that this court could not decide on the case, so it has been sent to Delhi for a decision. We don’t know what happened with it. Our lawyer told us that the case had come back to the police for clarification and that the police had to reply. That never happened. After that, we didn’t bother to follow the case.”

For more details on this case study, read the full report, “Denied” – Failures in accountability for human rights violations by security force personnel in Jammu and Kashmir