Despite A Damning Committee Report in Their Favour, The Families of Kashmiri Tihar Inmates Who Were Beaten Up Have No Hope of Justice

Ahtesham Farooq Malik’s injuries were particularly grave because, the committee's report notes, he had “actively protested on the account and was consequently targeted by TSP and QRT.” It states that he had fallen unconscious during the incident, and was the only inmate who was taken to a hospital outside the jail.
20 January, 2018

In the afternoon of 22 November, at the office of the deputy superintendent of Jail 1 in Tihar Central Jail, Chinmay Kanojia, an advocate, was waiting to meet Syed Shahid Yusuf, the son of Hizbul Mujahideen’s chief Syed Salahuddin, for the first time. At the time, Kanojia and the advocate Jawahar Raja were representing Yusuf. Kanojia waited for about half an hour, during which time the clients of all the other lawyers in the room had arrived. Every 20–30 minutes or so, Kanojia said, he would enquire about his client, but the jail official would just shuffle some pages in his register, note down Yusuf’s name again, and ask Kanojia to wait.

In late October last year, the National Investigative Agency arrested Yusuf for his alleged involvement in a case in 2011—according to a chargesheet filed by the NIA at the special court in Delhi, he had received funds “to fuel and fund the secessionist and terrorist activities in J&K.” Before his arrest, Yusuf had been employed with the Jammu and Kashmir government’s department of agriculture. Since 1 November, he had been lodged in a high-security ward at Tihar jail.

Yusuf finally appeared more than two hours later, Kanojia recalled. He immediately handed over a blood-soaked vest to the lawyer. “Sir, yeh lijiye, yeh evidence hai,” Kanojia said Yusuf told him—take this, it’s evidence. When Kanojia asked him what had happened, Yusuf said, “Sir, bahut maara hai. Aap yeh please mere parivar walon ko de do, aur Kashmir mein batayen ki aisa ho raha hai mere saath”—They have beaten me a lot. Please give this to my family and tell people in Kashmir that this is happening to me.

On the night preceding Kanojia’s visit, 18 inmates of the high-security wards, a majority of whom were Kashmiri Muslims, were severely beaten up by the security personnel in charge of these wards—the Tamil Nadu Special Police (TSP) and the Quick Reaction Team (QRT). The day after he spoke to Yusuf, Kanojia filed a petition before the Delhi High Court, which was heard by the bench presided by the acting chief justice Gita Mittal. The bench constituted a three-member committee—comprising Lorren Bamniyal, an appellate registrar in the high court, Reetesh Singh, a joint registrar, and Harsh Prabhakar, a legal-aid advocate—to visit the jail and investigate the incident.

Four days later, the committee submitted its report to the court. It did not hesitate to identify and describe the excesses committed by the jail’s security staff during the incident. The committee stated, “The incident is a gross violation of the fundamental human and other legal rights of prisoners who have been subjected to severe physical torture without any justifiable reason.”

But the strongly-worded report does not appear to have inspired much confidence among the inmates’ families about the outcome of the case, owing to their previous experiences with investigative agencies such as NIA and Special Cell, as well as the judiciary. Referring to his expectations from Kanojia’s petition, Syed Umar, Yusuf’s brother-in-law, told me, “Hum kuch keh nahi sakte ... sara kuch system inka hai”—I can’t say anything ... the entire system is theirs.

All 18 inmates were lodged in two high-security wards of the jail that were within earshot of each other—Ward C and Ward F. The committee’s report noted that the incident was triggered by the prisoners objecting to the “seizure of pillow cover” by the TSP during a routine search. The report noted that during the seizure, the TSP had thrown three pillows from Ward F into the courtyard outside the ward, including that of an inmate Mohd Hakim, who had specific permission from the jail’s doctor to use a pillow. The inmates began to protest, and these objections, the report notes, “appeared to have enraged the TSP personnel who retaliated by not only beating them blue all over their bodies but also raised an alarm which resulted in the QRT also swinging into action.” After examining the CCTV footage of the two wards where these inmates were lodged, the committee noted that the jail security forces were “beating the prisoners mercilessly with batons, buckets and everything else that they could lay their hands on.”

During the inspection, the committee members spoke to several officials and employees of the Tihar jail, the TSP and QRT security staff, and the inmates lodged in the two wards. The committee noted in the report that, according to the inmates, every day for over two weeks before the incident, the jail’s TSP unit, under the charge of sub-inspector Muthu Pandi, had been conducting “very intensive and aggressive” searches in the wards. The prisoners told the committee that the TSP would “turn around each and everything lying in their cell and virtually ransack their belongings.”

The committee’s description of the CCTV footage revealed the excessive nature of the security staff’s conduct. According to the footage from the night of 21 November, the search operation began at around 8.35 pm. Outside Ward F, a few prisoners appeared to be arguing with Pandi, and shortly afterwards, they were “seen returning to their Cells … in a state of panic, probably because the in-charge TSP had directed the sounding of the alarm.” “At around 9:21 p.m,” the report notes, “the TSP personnel in large numbers” entered Ward C and began beating the inmates. “The severe lathi charge … continued for about 4 mins.” The QRT team then entered the ward “at 9:30 p.m. and immediately they started beating the inmates very severely with batons and at times targeting a selective few.”

The assault on the inmates of Ward F was carried out in a similar manner. The report states, “At around 9:26 p.m., the TSP personnel in very large numbers are seen entering Ward ‘F’ and mercilessly and indiscriminately conducting a lathi charge.” Again, the QRT personnel then entered the ward after the TSP “at 9:34 p.m. and once again beating the prisoners indiscriminately.” Two minutes later, Satbir Yadav, the deputy superintendent of the jail, entered the ward and directed the TSP and QRT personnel to leave.

The report is unequivocal in stating that the violence during the incident was both one-sided and unjustified. “The CCTV footage is clear to the effect that there was no resistance or violence or any kind of physical retaliation offered by any of the prisoners either in Ward ‘C’ or Ward ‘F’. There is no reason noticeable in the footage or in the version of the prisoners or the TSP staff which could justify the incidence of beatings.”

News of the incident was first reported by media organisations in Kashmir, a week after it occurred, after one of the inmates, Ahtesham Farooq Malik, appeared before a court in Sopore, in Kashmir, with a bandaged head and an injured arm. According to his father Farooq Malik, Ahtesham had gone to the court to attend a hearing in a 2006 case, in which he was arrested for his alleged involvement with a militant, who was his neighbour in Sopore. Ahtesham’s injuries were particularly grave because, the report notes, he had “actively protested on the account and was consequently targeted by TSP and QRT.” It states that he had fallen unconscious during the incident, and was the only inmate who was taken to a hospital outside the jail. Ahtesham had suffered a fracture in his left hand and a severe injury on his head.

The inmates in the two wards had suffered serious injuries. According to the report, Dr Rohit Kumar, the medical officer in-charge at the Tihar jail, told the committee members that all 18 injured inmates had “deep bruises and contusions on their backs, arms and hands.” The report added, “Some injured had deep bruises on their legs and feet also … Swelling and bleeding from different parts of the body was observed in many cases.” All the inmates except Ahtesham were treated at the jail dispensary.

I spoke to the families of three inmates—Yusuf, Ahtesham, and Mushtaq Lone—over the phone. All of them expressed a disillusionment with the judicial system. Yusuf’s family had been informed of the assault by Kanojia, but the others said that they came to know about the incident only after Ahtesham was brought to Sopore and it was reported by local media. Ahtesham’s father, Farooq Malik, recalled seeing his son at a police station in Srinagar before he was taken to court: “Jab main isko idhar dekha toh mere hosh hi udgayen”—When I saw him here, I was flabbergasted. He told me that he did not receive a call from the jail authorities about Ahtesham’s condition. “Maine pucha kya hua toh rone lag gaya”—When I asked him what happened, he started crying, Farooq continued. “Haalat uski bahut kharab thi”— He was in a very bad state.

Sajjad Ahmad, Mushtaq Lone’s brother, repeated a similar story about how the NIA had arrested Lone in 2014 and taken him to Delhi after giving the family an assurance that he would be released within 20 days. Ahmad said, “At the time, we did not know about the NIA. We discovered later that this is what they do.” Nobody in Ahmed’s family knew details about the case with regard to which he had been arrested , except that it was taking place in Patiala House court. He added, “Since they took him to Delhi, they have not let him go.”

Each of the families told me that they were only able to meet their relatives once or twice a month—it takes them at least two days to travel to Delhi from their homes in Kashmir, and the journey is costly. Ahmad said his family could not afford to travel to Delhi to meet Lone. He also expressed his fear that something could again happen to Lone in Tihar. “I am very scared that he will be beaten up,” he said. “His life is in great danger. Who knows when what can happen.”

These fears were echoed by other family members as well. Umar, Yusuf’s brother-in-law, recalled his meeting with him, “When I went to meet him, he was very depressed.” “Unke zehan mein fear psychosis tha”—Fear psychosis had settled within him, he added. “Jo bhi Kashmiri Muslim outside state hain, unke khilaf toh kuch bhi ho sakta hai”—Whichever Kashmiri Muslim is outside the state, anything can happen to them.

The prisoners, too, did not appear to be reassured by the committee’s inspection in the jail. The committee’s report stated that the inmates were “living in a state of fear.” It continued, “They apprehend that they might be killed on some pretext or the other.” Despite the committee having “extended all possible assurances” to the inmates, the report noted that “the incident of 21.11.2017 and the severity of the physical assault have left them shaken.”

The committee rejected the explanations offered by the jail officials about the incident. Their report included several letters that Yadav, the jail’s deputy superintendent, had sent to the various district courts where the injured inmates were under trial, informing them about the incident. Each of the letters, which were almost identical, individually named the prisoner facing trial in that court and stated that they were “reluctant to cooperate in the search proceedings, abused the TSP staff … made incendiary remarks which lead to a mutiny like scenario in High Security Ward.”

The committee has categorically stated that these reports to the district courts were “wrong and misleading.” The report notes that “not more than 12–14 unarmed prisoners” exited Ward F into the courtyard, and that there were “over 50 TSP personnel armed with fibre batons.” It continues, “It is a blatant effort by the jail authorities to cover their acts of unilateral aggression against unarmed prisoners.”

According to an Indian Express report published on 1 December, the jail authorities had informed the ministry of home affairs that the TSP personnel had “intervened allegedly after one of their physically disabled officers was assaulted by three inmates.” While the committee’s report observes that Pandi, the TSP in-charge, “is handicapped as he has lost his right hand,” the report has no mention of any such alleged assault by the inmates. Yadav’s reports to the district courts intimating them about the incident did not have these allegations either.

The report further indicates that Pandi himself did not make these allegations to the committee members. Instead, Pandi stated that the inmates were objecting to the seizure of the pillow covers, and that “since they were all shouting together, he sounded the alarm.” But the committee, after examining the Delhi Jail Manual, which addresses the situations in which the officials should raise an alarm, has also stated that there “could be no justification for sounding the alarm.” The report states that this “resulted in a second incident of violence on the hapless prisoners.”

On 23 December, I called Ajay Kashyap, the director general of Tihar jail, for his comments on the committee’s report. Kashyap directed me to speak to the Raj Kumar, the additional inspector general of the jail. But Kumar declined to answer any of my questions and repeatedly said, “I can’t comment on anything since the matter is sub-judice.”

In its report, the committee also states that Yadav had informed the local police station at Hari Nagar about the incident—though it notes that Yadav did not provide any information about whether the police had registered a first information report against the incident. When I called up Vijendra Singh, the station house officer of the Hari Nagar police station, he said, “I am neither aware of the incident nor do I have the permission and power to talk about it.” I asked him how he did not know about it, considering that the committee’s report states that the jail authorities had informed the police station about the incident. Singh responded, “Whether I know it or I don’t, am I here to explain everything to you?”

On 27 November, the committee submitted its report before the bench of the chief justice of the Delhi High Court. Upon examining the report, the bench passed an order noting that the committee “has prima facie observed violation of rules and instructions regarding searches, alarms, and the manner in which prisoners are to be treated.” It also stated that the “first and foremost issue” was the treatment of the injured prisoners, and directed a medical examination of the 18 prisoners by a board of three AIIMS doctors. Malik, Ahtesham’s father, told me that this was conducted on 28 and 29 November in accordance with the order.

The court then observed that “the matters are extremely serious in nature and require a more serious probe before any intervention should be made by this court.” It set up another three-member fact-finding committee comprising Brijesh Sethi, the district judge of the south-west district; Mrinal Satish, a professor at National Law University Delhi; and Sumeet Verma, an advocate and member of the high court’s Legal Services Committee. The new committee is due to submit its report on the next date of hearing in the case, on 7 February.

According to Kanojia, the police could register an FIR on the basis of either committee’s report or his petition. Referring to his past experience, Kanojia said that in such cases, the court “cannot directly indict” a police officer. He noted that the police would have to initiate a departmental enquiry against the concerned officers, and that the court could direct an FIR to be registered against them. “Usually in cases like these, the FIR is filed against unknown accused,” Kanojia added. The Indian Express report had noted that the TSP team had been “temporarily removed” from the jail. However, it does not appear that the TSP or QRT personnel would face a criminal trial anytime soon.

When I had asked Umar what expectations he had from the court, he said, Kuch nahi, zyada se zyada kuch compensation denge”—Nothing, at the most they will give some compensation. He added, “Yahan par peace talk bhi ho rahen hain, Dineswar Sharma ji aatey hain”—There are peace talks also going on here,  Dineshwar Sharma visits here. In late October, the central government appointed Sharma, a former director of the Intelligence Bureau, as an interlocutor and special representative of the government, as a part of its efforts to initiate a dialogue with the stakeholders in Jammu and Kashmir. Umar continued, “Ek side se talk, ek side se harassment, yeh cheezein ek sath nahi chal sakti”—Talks on one side, harassment on another, these things cannot go hand in hand.