| @ | September 4,2018

South Asia has been no stranger to the phenomenon of people “disappearing”, ostensibly without a trace. Usually, these individuals leave no signs of wanting to abandon their families, live in seclusion, or having any desire to renounce life altogether and there are no calls from abductors demanding ransom. In most cases, such disappearances are not quite “without a trace”, nor without a reason, they are enforced disappearances. Security forces and intelligence agencies in South Asia and many other parts of the world arbitrarily detain people, generally, young men deemed “security risks”, without formal charges, without recourse to legal assistance and giving no intimation to their families. More often than not, such detentions result in torture and, in some cases, the extraction of forced confessions or the commission of extrajudicial killings.

The position in International Law

International law recognises the practice of enforced disappearance as a distinct offence and States have an obligation under international law to not partake in such arbitrary deprivations of liberty and human dignity. Article 1 of the 2006 International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) places a non–derogable prohibition against enforced disappearance

International law recognises the practice of enforced disappearance as a distinct offence and States have an obligation under international law to not partake in such arbitrary deprivations of liberty and human dignity. Article 1 of the 2006 International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) places a non–derogable prohibition against enforced disappearance and defines the offence as an “arrest, detention, abduction or any other form of deprivation of liberty by agents of the State….… followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law”. Typically, enforced disappearances involve state denial of responsibility and concealment of the victim’s identity and fate. The convention extends an expansive ambit to the responsibility of the State in such cases as it covers enforced disappearances not only at the hands of the agents of the State but also at the hands of “persons or groups of persons acting with the authorization, support or acquiescence of the State”. Sub-Article 2 of Article 1 provides that no exceptions exist allowing for a derogation from the prohibition of enforced disappearances. That is, Article 1 applies even in a state of war or under the threat of war, internal political instability or any other public emergency, a member state cannot invoke such grounds as a justification for enforced disappearance.

Article 1 applies even in a state of war or under the threat of war, internal political instability or any other public emergency, a member state cannot invoke such grounds as a justification for enforced disappearance

Apart from the ICPPED, there are several international conventions and declarations that expressly or implicitly outlaw enforced disappearances inasmuch as their commitments to protect the right to life; the right to liberty and security of the person; the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment; the right to humane conditions of detention; rights related to fair trial and the right to recognition as a person before the law — are concerned. These include the ICPPED, the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), UN General Assembly Resolution 47/133 (1992), and the Universal Declaration of Human Rights (UDHR), Rome Statute (International Criminal Court).

South Asian domestic legal treatment

Enforced disappearances are repugnant to the fundamental rights enshrined in all of the constitutions of South Asia. Although there have been no specific statutory enactments, the apex courts in some South Asian jurisdictions have taken it upon themselves to define the offence and even institute commissions to examine cases.

India’s western neighbour Pakistan is a country that has grappled with the malaise of enforced disappearances for a very long time. Indeed, the discourse on enforced disappearances is much more mainstream in Pakistan compared to India

India’s western neighbour Pakistan is a country that has grappled with the malaise of enforced disappearances for a very long time. Indeed, the discourse on enforced disappearances is much more mainstream in Pakistan compared to India, partly because of the sheer number of high-profile enforced disappearance cases across Pakistan. According to data submitted to that country’s Supreme Court, as of December 2013, there were 721 cases of enforced disappearances pending in various provincial High Courts and the Supreme Court.

In what can be termed a landmark ruling on enforced disappearances in Pakistan, Justice Athar Minallah of the Islamabad High Court in Mahera Sajid v. Station House Officer, Police Station Shalimar & Ors., 2018 took the police and provincial administration to task for their “non-cooperative, humiliating and insensitive attitude” in discharge of their public duties on a complaint filed by a woman claiming that her husband was picked up by the officers in 2016.

In 2007, the court in Rabindra Prasad Dhakal & Ors. v. Government of Nepal & Ors. held that the principles enshrined in the ICPPED were applicable in the Nepali context too although the country hasn’t the signed the convention

The Supreme Court of Nepal, another South Asian country, is the early mover as far as creating institutional mechanisms to investigate enforced disappearances go.  In 2007, the court in Rabindra Prasad Dhakal & Ors. v. Government of Nepal & Ors. held that the principles enshrined in the ICPPED were applicable in the Nepali context too although the country hasn’t the signed the convention.“The responsibility and principles specified by the established International laws concerning the protection of human rights have been bestowed upon Nepal through the other international conventions ratified by Nepal, and on this basis, not only should there be no impediment to embracing the provisions of the ICPPED as the guiding principles, but embracing these provisions is also seen as a necessary requirement”, the court ruled. Pursuant to this judgment, an inquiry commission has been established in Nepal to investigate enforced disappearances.

Elsewhere in South Asia, Maldives, like India, has signed the ICPPED but not ratified it. Bhutan, Afghanistan, Pakistan and Bangladesh have not signed the convention. The only exception to this general South Asian trend is Sri Lanka which has both signed and ratified the convention, however it is only in March, 2018 that the government appointed commissioners to its Office of Missing Persons (OMP). Further, it has come to the notice that 100+ bodies have been found from Mannar during excavation by the Court-monitored investigation agencies but no single case has been dealt by OMP yet.

Enforced Disappearances in India

India has witnessed instances of enforced disappearance and there are a number of recorded allegations of enforced disappearances taking place, especially in regions with a violent political history, such as Kashmir, North East and Punjab

India has witnessed instances of enforced disappearance and there are a number of recorded allegations of enforced disappearances taking place, especially in regions with a violent political history, such as Kashmir, North East and Punjab. According to the Association of Parents of Disappeared Persons, a collective of relatives of victims of enforced and involuntary disappearances in Kashmir operational since 1994, approximately 8000 people have been made victims of enforced disappearance from 1989 to 2012. The same figure of 8000+ missing people in 1980s have been documented by Punjab Advocacy and Documentation Project (PADP). In fact, at the 114th session of the Working Group on Enforced or Involuntary Disappearances (WGEID), the Working Group transmitted 16 new cases of disappearances to India. The 113th session reports note that Indian hasn’t accepted the veracity of the allegations, nor has it allowed the WGEIP to visit the country since 2010 despite a fresh reminder in 2016 and 368 cases are outstanding at the end of the review. It is important to note, however, that WGEID coordinates between victims’ families and governments to establish the fate and whereabouts of victims, but the WGEID neither conducts the investigation nor determines state or criminal responsibility.

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Association of Parents of Disappeared Persons (APDP)  demonstration in Srinagar | Photo Credit: Outlook

 

The legislature and the judiciary in India are yet to recognise enforced disappearances as a distinct offence

In the face of such staggering numbers, it would seem but natural for the Indian judiciary to have looked into the matter by now. Unfortuantely, the legislature and the judiciary in India are yet to recognise enforced disappearances as a distinct offence. In the past, the Supreme Court of India has dealt with instances of detention by either issuing writs of habeas corpus or criminalising extrajudicial killings (Extra Judicial Victim Family Association (EEVFAM) and Ors. v. Union of India & Ors.). It has also recognised the right to remedy, i.e. the right to compensation in illegal detention matters in Rudal Shah v. State of Bihar (1983) and Bhim Singh v. State of J&K (1986).

In fact, attempts by members of Lok Sabha (Mr. Om Prakash Yadav in 2018) and Rajya Sabha (Mr. Vijayasai Reddy in 2017) through a private members bills (such as the Prevention of Enforced Disappearance Bill) to enact a statute to fulfil India’s international obligation emanating from ICPPEID and other human rights treaties haven’t been successful thus far.

Comparison with Pakistan

In 2013 (Human Rights Case No.29388-K of 2013), a three-judge bench of the Supreme Court of Pakistan bench headed by the then Chief Justice Iftikhar Muhammad Chaudhry raised questions about the enforced disappearance of 35 men from the Khyber Pakhtunkhwa Province’s Malakand division. This was one of the rare instances of a court in Pakistan challenging the country’s powerful military Establishment on its alleged role in the enforced disappearance of political critics and liberal bloggers

By contrast,  the role of the judiciary across the border in Pakistan has been more active and influential. In 2013 (Human Rights Case No.29388-K of 2013), a three-judge bench of the Supreme Court of Pakistan bench headed by the then Chief Justice Iftikhar Muhammad Chaudhry raised questions about the enforced disappearance of 35 men from the Khyber Pakhtunkhwa Province’s Malakand division. This was one of the rare instances of a court in Pakistan challenging the country’s powerful military Establishment on its alleged role in the enforced disappearance of political critics and liberal bloggers. The court held in favour of the application of ICPPED provisons in Pakistan, even though the country hasn’t ratified the 2006 convention. It observed that enforced disappearances amount to crimes against humanity, and hence violate Article 9 of the Constitution of Pakistan.

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Protestors in Islamabad, Pakistan Demand End on Enforced Disappearances | Photo Credit: NewsClick

 

Many international scholars have argued that prohibition against enforced disappearance has become part of international customary law and thus, is binding on non-parties to the convention

Even though India’s position is similar, inasmuch as it hasn’t ratified the ICPPED and there have been credible allegations levelled, regarding the occurrence of enforced disappearances, the judiciary in India has been restrictive in its approach to include it in its domestic jurisprudence. This position would seem to need correction because India doesn’t have a free hand under international law and is under an obligation (Article 18, Vienna Convention on the Law of Treaties, 1969) to not undertake any action which frustrates object and purpose of the convention, being a signatory. It must be mentioned here that many international scholars have argued that prohibition against enforced disappearance has become part of international customary law and thus, is binding on non-parties to the convention.

 When Pakistan lights the way

It is in this background the judgment delivered last month by the Supreme Court of Pakistan assumes particular significance. While exercising the court’s powers under Article 199 of the Constitution of Pakistan, Justice Minhallah imposed a cost of 1 Lakh Pakistani Rupees (PKR) individually on the Secretary, Ministry of Defence, Chief Police Commissioner and Chief Police Inspector of Islamabad along with Retd. District Magistrate. Moreover, the appellant was awarded with compensation of 1.5 lakh PKR per month for the violation of Article 9 (right to life), 14 (dignity and privacy of home) and 25 (right to equality) of the Constitution of Pakistan.

The court reiterated the duty of the ISI, Intelligence Bureau, Special Branch (public functionaries) to not only collect information but to report and take effective measures on the complaint regarding enforced disappearance

The court reiterated the duty of the ISI, Intelligence Bureau, Special Branch (public functionaries) to not only collect information but to report and take effective measures on the complaint regarding enforced disappearance. The Court also took cognisance of the plight of the family members of the disappeared persons while they await any information with regard to the well being of the detenue. Such family members are subjected to distress and anguish and have been recognised as “victims” within the scope of Article 3 of the ICPPED.

The question remains how long will it take for Indian judiciary to bring disappeared persons to life?

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