HC’s Landmark Judgement2 April 2011
Srinagar: In a landmark judgment delivered in an enforced disappearance case, High Court has directed India’s Defence ministry to pay a compensation of Rs 10 lakhs to family of Mushtaq Dar of Boatman Colony, Bemina, who was lifted by Army’s 20 Grenadiers’ from Srinagar in April 1997 and subsequently disappeared in troops custody. The court observed that the enforced disappearance was violation of Article 21, which was patent and incontrovertible. The orders by Justice F M Ibrahim Kalifulla, who is soon going to take over as Chief Justice of JK High Court, came in response to a habeas corpus petition filed by one Azizi Begum of Boat Colony, Bemina Srinagar in 1999. She had alleged that her son Mushtaq Ahmad Dar was lifted by troopers of Army’s 20th Grenadiers on April 13, 1997 from Bemina and later disappeared in troops custody. In the petition, she submitted that on April 14, 1997 when they approached the Commanding Officer of 20 Grenadiers, the troops admitted Mushtaq’s detention and assured the family that he would be released soon. However, after passage of some time, army denied that Mushtaq was in their custody. Afterwards, Mushtaq’s mother approached the High Court and sought directions to army to produce her son and set him free. It was also submitted that a judicial inquiry be conducted and an amount of Rs 10 lakhs be awarded as compensation to the victim family. After admitting the petition, High Court ordered a judicial inquiry into the incident on May 2, 2000. The inquiry was conducted by Additional Sessions Judge, Srinagar, who in her report submitted to High Court on July 18, 2000, concluded that Mushtaq was lifted by Army’s 20 Grenadiers unit from Boatman Colony, Bemina on April 13, 1997 and thereafter he disappeared in custody. Subsequently, the judicial inquiry report was considered by the High Court on October 28, 2003 and the findings noted. In the final judgment delivered by Justice Kalifullah this week, the Government of India (GoI) through Defence Secretary and Commanding Officer 20th Grenadiers were squarely held responsible for Mushtaq’s disappearance in custody. “Having regard to specific findings of inquiry report, it will have to be held that in the case on hand, violation of Article 21 was patent and incontrovertible”, the judge observed. He said it is a case of total disappearance of the detenue, who was taken in custody by 20 Grenadiers’ personnel. “This court is of the view that this is a fit case where award of compensation as a public law remedy under Article 226 to the aggrieved person is fit and appropriate as well as in the interest of justice”. Further holding J&K Government and DGP accountable in the case, Justice Kalifullah observed that he is convinced that this is a case where enough opportunities were extended to the respondents (Defence ministry, police) to place their case. “Police merely came forward to state that they have played their role of lodging prosecution by registering FIR 66-2009. Unless and until the prosecution is concluded in the said manner, known to law, the government and DGP cannot be absolved of their responsibility in regard to the disappearance of the son of the petitioner”, the judge held. The Court directed the Defence ministry to pay a compensation of Rs 10 lakh to the victim family. “It can be reasonably held that a compensation of Rs. 10 lakhs would meet the ends of justice”. “Since various factors placed before this court reveal that GoI through Defense Secretary and Commanding Officer 20th Grenadiers were mainly responsible for disappearance of the detenue, I am convinced that the payment of the Rs. 10 lakhs can be directed to be made by GoI in the first instance with liberty to recover the same from the other respondents”, High Court directed. It is pertinent to mention here that Amnesty International in its latest report on Kashmir had stated that compensation in most of the cases related to enforced disappearance has not been processed and nor has it been awarded in any case. Various Kashmir based HR groups have been maintaining that about 10000 persons have disappeared in troops custody during past two decades of turmoil in Valley.