Five years after noted sociologist, BA Dabla's death, his study on enforced disappearance came up for discussion at an informal meet.
The study completed in November 2012 talks about the phenomenon of enforced disappearance, the plight of the families of the disappeared persons and their horrifying experiences. The study had evoked massive appreciation. But during the above discussion, it was criticised for some uncomfortable questions it has raised.
According to the study, 72% of those who disappeared after being picked up by the men in uniform or the militants were innocent civilians. By innocent persons, he means persons who were not directly or indirectly involved in the on-going conflict.
By coining the term `innocent civilians' the study in a way justifies the enforced disappearance of those who, according to him, were not innocent. But do people deserve to be subjected to enforced disappearance?
The law on the point is clear. There are guidelines in International conventions and treaties, the code of criminal procedure and the Supreme Court judgments to prevent the barbaric practice.
The role of the law enforcing agencies must end with filing the challan in a court of law. The courts alone must award punishment.
Under the Indian law even a dreaded terrorist is entitled to a free and fair trial. The UN Human Rights Commission Resolution adopted on December 18, 1992 is too lengthy a document to be reproduced here. Para 5 reads: "Considering that enforced disappearance undermines the biggest values of any society committed to respect for the rule of law, human rights and fundamental freedoms and that the systematic practice of such act is of the nature of a crime against humanity."
Needless to say the Geneva Conventions also accord protection to victims of armed conflicts.
In a landmark judgement in DK Basu v/s State of West Bengal (1997, 1 SCC 216), the Supreme Court observed:
1, The police officials who carry out the arrest or interrogation should wear accurate, visible and clear identification and name tags with their designations.
2, A memo of arrest must be prepared at the time of arrest stating the time and place of arrest. It must be signed by at least one witness who may either be a family member of the person arrested or a respectable person of the locality where the arrest was made.
3, The arrest memo must be arrested by the person arrested.
4, The documents including the arrest memo has to be sent to the area magistrate for his record.
5, The arrested person must be examined by a doctor after every 48 hours.
Interestingly the UN declaration, Geneva Conventions, Supreme Court and the Criminal Procedure Code have not made a mention of innocence or involvement of the victim. The classification was done for the first time on July 12, 1999.
The government issued an order on July 12, 1997 empowering the district magistrates to place cases of disappeared persons before the district screening committees to decide if the missing persons can be presumed dead. Another order No Home-62/98 Relief dated July 12, 1999 states that the district magistrate shall submit a certificate to the effect that the next of kin of the disappeared persons are not involved in militancy. "The district screening committee, while clearing a case, will take a simultaneous view on the involvement or otherwise of the disappeared person in militancy related activity."
Research into the phenomenon reveals that the disappearances happened not because of innocence or involvement of the victims in the on-going conflict but due of brazen violation of laws and guidelines by the men in uniform. Dr Dabla has talked about the judicial system's failure to give the half-widows their status. He has also talked about their nightmarish experiences and woes but there is no mention of the impunity part of the phenomenon.
The study was sponsored by the Indian chapter of an International NGO which has its own limitations. The study has nothing new to offer. Parveena Ahanger whose son disappeared after arrest said: "I have been saying everywhere, in India as well as other countries, that the sons and husbands whom the APDP members have lost are all innocent. The government has always wanted a proof and here is one more proof," she said.
The APDP patron, Parvez Imroz on the other hand has a different take on this issue. And lastly if involvement in the on-going conflict is the yardstick to determine one's innocence then nobody in Kashmir is innocent. The people of Kashmiris have proved and also displayed their proximity with the on-going conflict time and again.
Notwithstanding their political affiliations, different players including some from the `mainstream' camp have sought resolution of the dispute. This is what the separatists have been saying. And, for this `crime' they are arrested and some of them disappeared while in custody. Weren't they innocent?