A report on the present conditions of custody of Mohd

Committee for Initiative on Kashmir (B-10, Green Park, New Delhi, India ; Tel. 011 6867694, 3714531, Email: ashokagrwaal@vsnl.com)

A report on the present condition of custody of Mohd. Yasin Malik, a POTO detainee

Committee for Initiative on Kashmir, is an informal group of concerned citizens and human rights activists who have been taking up issues of human rights abuse by state security agencies in J&K since 1989-90. Its convenor is Tapan K. Bose, an award winning documentary film maker, who is currently the Secretary General of the South Asian Forum For Human Rights, a Kathmandu based NGO with a pan South Asian mandate. Some of its other members are Gautam Navlakha, assistant editor, Economic & Political Weekly, Dinesh Mohan, professor at the Indian Institute of Technology, Delhi, Sumanta Bannerjee, a prominent writer and columnist, Suhasini Mulay, an acclaimed actress and documentary film maker, Rita Manchanda, a prominent journalist, Ram Narayan Kumar, a writer and human rights activist whose books and reports on state repression have been internationally acclaimed and Ashok Agrwaal a lawyer practicing in the Supreme Court of India.

Mohd.Yasin Malik was arrested on 25.3.2002 from the office of APHC at Srinagar while he was addressing a press conference. He was told that he was to be produced before the CJM Udhampur. Before the CJM Udhampur, the prosecution sought Yasin Malikís police remand for one week. The request was granted. Yasin Malik complained of chest pain and discomfort to the CJM, pointing out his known cardio-vascular and ear condition. The court, therefore, directed the Principal of the Government Medical College Jammu, Dr. H.L. Goswami to immediately constitute a Medical Board and have him medically examined. Pursuant to these directions, Dr. H.L. Goswami constituted a Medical Board under the Chairperson of Dr. Sheetal Singh, with Dr. C.D. Gupta, Dr. Vijay Gupta and Dr. Sunil Kotwal as the other members of the said Board. Yasin Malik was taken to the Govt. Med. College, Jammu, for a medical examination. As per newspaper reports, upon examination the Medical Board recorded that Yasin Malik was suffering from Rhino-Pharyingitis (a throat & ear infection). They also found him to be suffering from a high fever. Yasin Malikís subsequent whereabouts were not disclosed to either his counsel or his family.

Concerned at newspaper reports of Yasin Malikís arrest and his subsequent declaration of a hunger strike, four members of the Committee left Delhi for Jammu on 30.03. 2002. On arriving at Jammu, they met . Amina Malik, Yasin Malikís sister, who had just returned from a meeting with her brother at the Police Lines Hospital, Jammu. Amina Malik was in tears and broke down completely while describing her brotherís condition. She stated that it had taken her three days of desperate efforts before she was permitted by the Court of the Designated Judge at Central jail, Jammu to meet him.
Amina Malik told us that her brother was in a very critical condition. A brief description of their meeting is given below.
Yasin Malik was lying in a bed in a very large ward of the hospital. All the other beds of the said ward were empty. Yasin appeared to be unconscious when Amina Malik first approached him. The police officer accompanying her, however, roused Yasin and informed him that his sister had come to visit him. As she approached closer to her brother to embrace him, he winced in pain and motioned her to keep away from the region of his right ear. He also indicated with gestures that he could not hear anything from his right ear and asked her to sit next to his left side to converse with him. Amina Malik then noticed that the entire region around the right ear appeared to be red and swollen. On asking, she was informed by her brother that he had been severely assaulted by one Mr. Manohar Singh, Superintendent of Police (Special Operations Group) Jammu, and some other police officers. Yasin further told her that after his medical examination he was taken to some place, probably a "Safe House" controlled by the SOG, J&K police. Soon after reaching there Mr. Manohar Singh entered the room in which he was being detained along with some other officers and, hurling filthy abuses, demanded he confess that he was to have been the recipient of the money recovered from Ms.Shazia/Shamima and Mr. Mushtaq Ahmed Dar. Yasin refused to do so, saying that he knew nothing about the money. This enraged Mr. Manohar Singh who asserted that he would force him to confess and assaulted him in a most brutal manner. The police officers accompanying him also joined in beating up Yasin Malik. The assault was so severe that Yasin became unconscious. In protest against the beating Yasin Malik refused all food and water. According to Amina Malik, her brother was so weak and ill that while talking to her he kept losing consciousness.
After listening to Amina Malik, the Committee approached the government of J&K for permission to meet Yasin Malik with the intention to find a way out of a life-threatening situation in which he appeared to be. The Home Secretary of the state government allowed the Committee members to meet him. On 1 April 2002, at about 3 p.m., three members of the Committee met Mr. Yasin Malik in the police hospital at Jammu. On entering the ward they found Mr.Yasin Malik huddled in a bed with no bed sheet, pressing the right side of his head into a stained and filthy pillow. Knowing the dangers of a life threatening infection to which Yasin Malik is susceptible because of his ear condition, the members of the Committee were alarmed at the state of hygiene in which he was being kept. Dr. (Mrs.) Madhu Khullar, Medical Superintendent of the hospital, was herself alarmed when the Committee members pointed out the filthy stained pillow and the unhygienic conditions. She immediately had the pillow changed. The Committee members then inquired from Dr. Khullar and Dr. Saraf, the attending physician, whether they were aware of Yasin Malikís medical history and treatment regime that he was following prior to his arrest. They expressed ignorance and said they only had the report of the medical examination conducted by the medical board of the Government Medical College on 26 March 2002. Yasin Malik informed the Committee members that he had requested the arresting officials at Srinagar that his medical records and prescriptions be collected from his house. The request was ignored. It may be pointed out here that Yasin Malik is on life-saving drugs, which he has to take on a daily basis.
Yasin Malik told the Committee members that he went on a hunger strike in protest against the efforts of the police officials to extract a confession from him by using "Third Degree" methods. He also said he would not break his fast till the conditions of his custody conform to the minimum rights of prisoners, guaranteed by both the domestic and international law.
The Committee believes in the Rule of Law and expects that the Indian State will abide by its Constitutional and International obligations with respect to the rights of the people within its territorial jurisdiction.
The Committee submits that irrespective of the case made out by the State against Mohd. Yasin Malik, he has a right to be treated in a lawful and humane manner. He cannot be forced to confess, or incriminate himself. Nor can he be subjected to abuse or assault of any kind, while in custody. The conditions of his custody must conform to the standards and nor stipulated under the domestic and international law.
The Committee submits that by their brutal, inhuman and grossly illegal conduct, the J&K Police, particularly Mr. Manohar Singh SSP (SOG) and his associates, have put Yasin Malikís life in jeopardy. The government and its agencies are duty bound to uphold the Indian Constitution and to enforce the guarantees contained therein ó assuring justice, fair and humane treatment and protection from violation of the rights inhering all human beings.
It is submitted that the legality of Yasin Malikís arrest and detention have been vitiated by the aforementioned abuses. His fundamental rights stand grossly violated. The attempt to coerce a confession from him is violative of Section 32 of the POTO. No lawful purpose can, therefore, be served by his continued detention in police custody. Imperatives of justice and rule of law as also the necessity to alleviate the present dangers to his health and life require that he be sent to judicial custody forthwith.
RECOMMENDATIONS:

Move the court seeking Yasin Malikís immediate transfer to judicial custody;
Without further delay, arrange to have a copy of Yasin Malikís medical record and prescriptions collected from his family;
Forthwith shift Yasin Malik to the Govt. Med. College, Jammu, so that he can receive proper treatment for the injuries suffered by him at the hands of the police;
Ask the Principal, Govt. Med. College, Jammu, Dr. H.L. Goswami to reconvene the Medical Board that was constituted vide order dated 26.3.2002 by the learned CJM Udhampur, for Yasin Malikís immediate medical examination and for a report on the deterioration of his condition in the intervening period since the previous medical examination by the said Board;
Direct that an ENT specialist of note should be co-opted onto the reconvened Medical Board in order to discover the nature & extent of the damage caused to Yasin Malikís right ear following the beating by the police officers named above and, for suggesting the immediate treatment that may be given to him in order to prevent further deterioration in the condition of his ear;
In view of his precarious medical condition following his week long stay in police custody, it is highly desirable that his personal physician be brought in to monitor the treatment and his progress;
Initiate inquiries, as required by law, into the complaints by Yasin Malik of the abuse of his rights and physical injuries suffered by him.
Instruct the detaining authorities to ensure that his family, friends and legal counsel are permitted to meet him without let or hindrance.

We believe that the government of Jammu & Kashmir does not endorse invidious abuse of law, particularly in cases within a draconian regime of POTO that has been justified as a necessary evil to curb cynical terrorist violence. We also hope that the government will expand the recommended inquiry to ascertain the officials responsible for apparent abuse of POTO in the present case.

Tapan Bose Rita Manchanda Ashok Agrwaal Ram Narayan Kumar

Camp Jammu

Dated: 2.4.2002

Postscript

The report was also submitted to the Jammu and Kashmir Minister of State for Home, Mr. Najeeb Suharwardy on April 2. He promised to look into the matter and in front of us contacted on the telephone Mr. Manohar Singh, the SP who had allegedly beaten up Mr. Yasin Malik. ( We saw Mr Manohar Singh waiting for the Minister in his ante room as we left). However, the Minister told us that he was unable to take any decision in the absence of Dr. Abdullah, the Chief Minister. Subsequently, on April 2, the government of Jammu and Kashmir got Mr Yasin Malik's police remand extended by another five (5) days. The extension was granted by the Chief Judicial Magistrate of Jammu city. His earlier remand was granted by the Chief Judicial Magistrate (CJM) of Udhampur District. Evidently, on a special dispensation, the extension of police remand was made not by the CJM who had granted the original remand but by the Jammu city CJM on the grounds that Mr Malik was in a weakened condition and therefore could not be moved to Udhampur from Jammu.

On April 3, we met Mr. Phunsog, the Principal Home Secretary of Jammu and Kashmir. He too was unwilling to take any decision as the Chief Minister and the Chief Secretary were in Srinagar attending to the visiting Defence Minister of India.

At the suggestion of Mr. Phunsog, we met the Director General of Police (DGP), Jammu and Kashmir, Mr. Ashok Suri. Initially, Mr. Suri was unwilling to concede to any of our requests. He not only rejected the suggestion that under the circumstances it would be better to send Mr Yasin Malik to judicial custody, he even refused to order an inquiry into the allegation of physical abuse in custody. He suggested that the complaint was a false one and that Mr Yasin Malik had gone on hunger strike in order to avoid being questioned by police officers.

We pointed out that Mr Yasin Malik who suffered from a known heart condition and depended on daily medication would not put himself to risk, lightly. Jammu and Kashmir police knew that he was required to take prescription drugs every day. We also pointed out that Mr Malik had recently undergone extensive surgery on his right ear in the United States as he was afflicted by a life threatening infection. His medical reports and prescriptions were available at his home in Srinagar. We drew the DG P's attention to the fact that the police did not have a copy of his medical history even after Mr Malik on March 25 requested them to collect a copy of his medical records, prescriptions and medicines as he depended on them for his very survival.

The DGP finally agreed to get Mr Malik's medical records collected from his house in Srinagar and forward them to the doctors attending on him at the Government Medical College in Jammu. He also agreed that Dr. Jai Paul, the Chief of ENT section of the Government Medical College, Jammu would examine Mr Malik to check whether he had suffered any loss in his hearing during his arrest and detention. It was agreed that DR Jai Paul would compare his test reports with the reports of ENT surgeon who had treated Yasin in the United States in 2001, in order to determine the any impairment in his ear condition. This could be cited as evidence of willful physical abuse in custody.

We went back to the Government Medical College, Jammu where Mr Malik was being held and informed him about the decision of the DGP. We requested him to give up his hunger strike on the assurance of the DGP that if evidence of illtreatment and abuse was established by Dr Paul's investigataion's then an inquiry would be ordered. At our request, Mr Malik broke his hunger strike at about 7.40 p.m. on April 3, 2002, his birthday. On April 8, we learnt that CJM Jammu has ordered that Mr Malik be shifted to judicial custody for 15 days and he is now lodged in the Central Jail Jammu. .

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