STRUCTURES OF VIOLENCE

289| Structures of Violence
taken to the Watergam Camp. Ashiq Hussain Ganai
was then moved to the Chatoosa Camp on 11 March
1993. Further, Ashiq Hussain Ganai's house was
subsequently searched based on information from
him that his brother was in possession of a pistol. The
allegation in the petition of signatures of the family of
the victim being taken on blank papers was denied. It
was stated that the victim escaped during an ambush
on the army convoy on 23 March 1993. It was also
stated that a Court of Inquiry was conducted vide HQ
79 Mountain Brigade convening order no.
113/1/GS(1) dated 25 March 1993 wherein it was
established that the army personnel were not involved
in the death of the victim. On 14 May 1999 the High
Court allowed an amended petition to be led to
include the prayer that the denial of sanction for
prosecution be quashed. The most recent order on
record is of 20 November 2006 where the High Court
granted further time for the ling of counter-objections
to the amended petition.
The State Human Rights Commission [SHRC] was
also approached. A nal decision was given on 25
August 1999.
The Ministry of Defence, in its afdavit before the High
Court in 2009 on sanctions for prosecution under
AFSPA, stated in relation to this case that it was not
received. The Government of Jammu and Kashmir, in
response to information sought under the Jammu and
Kashmir Right to Information Act, 2009 [RTI] on
sanctions for prosecutions under AFSPA, stated on 6
September 2011 in relation to this case that the case
was sent to the Ministry of Home Affairs but sanction
was not being recommended. The sanction process
appears to have only been initiated for Major Ashok
Kumar and Major Gurpal Singh.
The record of the case displays that both the
Additional Advocate General of the Government of
Jammu and Kashmir and the Government of Jammu
and Kashmiritself mistakenly refer to the request for
sanction for prosecution under AFSPA being sent to
the Ministry of Home Affairs. Further, while the
sanction for prosecution was declined by the Ministry
of Defence on 19 March 1997, the Ministry of Defence
in 2009 contradictorily states that the case had not
been received. Following the conclusion of
investigations by the Jammu and Kashmir Police on 7
August 1993, the Government of Jammu and Kashmir
sat on the le for two years before forwarding the case
to the Ministry of Defence.
The conduct of the Ministry of Defence and the
Government of Jammu and Kashmir is indicative of
the non-seriousness with which the processes of
justice in Jammu and Kashmir are administered.
Particularly striking in the instant case is that the
investigations do not seem to have focused at all on
Major Verma as no sanction was sought for his
prosecution. Considering that Major Verma was
allegedly present when Ashiq Hussain Ganai was
picked up, and had knowledge of his whereabouts
subsequently, it needs to be investigated why the
Jammu and Kashmir Police and the Government of
Jammu and Kashmir did not implicate him in the
crime.
Also, the alleged promises made by him for the
release of Ashiq Hussain Ganai suggest both his
knowledge of the whereabouts of the victim and his
control over his subordinates who it could be
presumed were acting on his instructions.
The only point of contention in the instant case is the
question of the continued detention or escape of
Ashiq Hussain Ganai.
No proof of legal arrest is provided. No proof of the
actual escape is provided. This case is yet another
example of the armed forces making unsubstantiated
allegations on the escape of an illegally detained
person. The burden lies on the armed forces to prove
how and when Ashiq Hussain Ganai escaped or
whether he was killed in their custody. Similarly, the
rationale of the Court of Inquiry that exonerated the
armed forces in the case has not been provided.
Finally, this case serves as an example of the nonseriousness
of the Jammu and Kashmir High Court
as it has dragged on for 19 years. The manner in
which the High Court has not appreciated the record
before it, particularly on the involvement of Major
General Verma in the crime, suggests that the High
Court has failed in asserting its authority.
Case No. 21
Victim Details
1. Gowhar Amin Bahadur [Extra-Judicial Killing]
Age: 21
Occupation: Businessman [Readymade
garments] and Gas cylinder vendor
Son of: Mohammad Amin Bahadur
Resident of: Danderkhah, Batamaloo,
Srinagar
2. Javaid Ahmad Bakshi [Extra-Judicial Killing]
Son of: Ghulam Qadir Bakshi
Resident of: Baranpathar, Batamaloo,
Srinagar
Alleged Perpetrators
th
1. Commandant Gopal Singh Shekawat, 4
Battalion, Border Security Force [BSF]
th
2. Deputy Commandant Sanyal Singh, 4
Battalion, Border Security Force [BSF]
th
3. B.D.Verma, Inspector, 4 Battalion, Border
Security Force [BSF]
th
4. Ajay Singh, Inspector, 4 Battalion, Border
Security Force [BSF]
th
5. M.S.Rawat, Constable, 4 Battalion, Border
Security Force [BSF]
t h
6. Harish Chand Panday, Constable, 4
Battalion, Border Security Force [BSF]
th
7. Kalyan Singh, Constable, 4 Battalion,
Border Security Force [BSF]
th
8. Mukesh Kumar, Constable, 4 Battalion,
Border Security Force [BSF]
Case Information