INDIA: Mr. Khurrum Parvez’s arrest exposes a system that lacks justice at its core

Mr. Khurrum Parvez is a human rights defender, the chairperson of Asian Federation Against Involuntary Disappearances, working in the state of Jammu and Kashmir. On 14 September 2016, the immigration officers stationed at the international airport in New Delhi, prevented Parvez from leaving the country. Khurrum had arrived at the airport to travel to Geneva to attend the UN Human Rights Council Session. When Khurrum enquired why he is being prevented from travelling, the officers informed him that the Intelligence Bureau has prohibited him from leaving the country. Later, on 15 September, the Jammu and Kashmir police arrested Khurrum from his home in Srinagar.

Since 15 September 2016, Khurrum is in detention. His case was taken up before an Executive Magistrate and a Sessions Judge, before the case was brought up before the High Court of Jammu and Kashmir. After detaining Khurrum for two and half months, the High Court in its order dated 25 November 2016, has said that Khurrum’s detention “is not only illegal, but the Detaining Authority has abused its powers in ordering his detention.” The High Court though it ordered Khurrum’s release from custody, fell short of taking any action against those who have illegally detained him.

Khurrum’s case is example to how India’s justice process is abused by the state and its agencies. It is also an example of how the judiciary actively participates in this cruel game, which is passed off as justice dispensation in the country.

Executive Magistrates in India, by virtue of the Code of Criminal Procedure, 1973 and through various special legislations like Jammu and Kashmir Public Safety Act, 1978, exercise enormous powers, including those to detain persons, as is evident in this case. Unfortunately, these officers, though named as Executive Magistrates, are government officers and not judges. They often lack knowledge of law, act arbitrarily, are deeply corrupt and are under the direct influence of the state. In Khurrum’s case too, the first charge against him was taken up by one such officer, who neither applied the law nor the procedure mandated by the law.

The only options available to a person who is aggrieved by such orders of these officers is to approach the Principal Sessions Judge having jurisdiction to sit on revision on the order of an Executive Magistrate, or the High Court, or the government. As evident in Khurrum’s case, the Session’s Judge who heard Khurrum’s bail application though annulled the charges against Khurrum, failed to intervene, when the authorities refused to release him from custody, and rearrested Khurrum misusing the powers under the provisions for preventive detention provided in the Jammu and Kashmir Public Safety Act, 1978. It is after this Khurrum approached the High Court.

Even at the High Court, his case was adjourned more than once, for the respondents in the case, the police and the government, to file replies in the court. It is after several such adjournments, the High Court upon final hearing of the case, has declared that Khurrum’s detention is illegal and arbitrary.

Such detention of persons on fabricated charges, or non-existent crimes are common in India. This is because, as witnessed in Khurrum’s case, if a state agency misuses its power to arrest and detain a person, there is practically no means by which the state is made to answer for it. This is not because the courts in India are not empowered to entertain such a jurisdiction, but due to the institution’s unwillingness to make the state accountable for its misuse of authority.

The role of a judicial officer, above everything else is to check the authority of the government in restricting personal freedom. India’s judiciary however has repeatedly failed in this role. In fact, most judicial officers do not even know about such a duty, and consider applications challenging arrest and detention as mere ‘routine’ matter, as was evident in Khurrum’s case.

Equally appalling is the manner in which the High Court that has now ordered Khurrum’s release, handled his case. On multiple occasions the court adjourned the case for the respondents in the case to furnish reasons why Khurrum should be held in detention. After adjournments, one after the other, when the documents were finally produced before the court, none had anything justifying Khurrum’s arrest and detention in them.

This case, among many others from the past, highlights how India’s judiciary actively participates in the misuse of due process in India. India has a dead justice process. What was introduced by the British, are institutions and procedures that were required to run the colony. None of them had justice at its core. While on the surface institutions were created, they are built on procedures that leaves possibilities for the authorities to misuse them as and when they chose.

Not many in India even know that the formative template of the Indian police is the Irish Constabulary Model, and not the London Metropolitan Model. The judicial process in India is incompatible with the London Metropolitan Model of policing. The Irish Constabulary Model, however requires enormous powers conferred upon state agencies like the Executive Magistrates, since what the Irish Constabulary required was executive approval for arbitrary arrest, prolonged detention, and impunity for police action.

This case came to the limelight, only because Khurrum is a popular human rights defender in India and abroad. Many others, who are not widely known, do not have this privilege, to even have a lawyer that can appear on their behalf. They simply rot in detention, often years beyond the period of punishment they would have been sentenced to had they chosen to admit guilt.

Khurrum’s case highlights to a certain extent the true state of India’s so called justice process. Justice is a phantom limb in India. Unfortunately, not many have realised this.