Writ of Habeas Corpus

After she met me, my wife went back to her village. On 9th February she wrote to the Chief of Army Staff, detailing in the letter, every thing that she had either observed or was told to her by me, and asked for an interview to explain in person, the atrocities which had been and were being committed on me; but the interview was never granted.

Disillusioned as she already was, and finding no response from the army authorities, Mrs. Swaran went to the Defence Minister Mr. Jagjivan Ram, alongwith the MP (Member Parliament) Mr. Ranjit Singh, of her area and submitted to him a written petition; bringing out briefly the illegalities and atrocities committed on her husband. In the petition she wrote, "These barbarous atrocities perpetrated on my husband have surpassed all the existing records available in history. This is never heard of, that a democratic civilised organisation will adopt such rough methods to insult, harass and humiliate an innocent man. It is very strange that such contemptuous things are performed in our holy land.... I would like to tell you that when my husband was not permitted to write to me or to read my letters, he was kept under most disgraceful, unhygienic conditions. Does our Constitution permit such unkind treatment?' She also enquired from the Minister in question the reasons why she was not permitted to meet me. "They did not grant the permission because they did not want me to see him in that deteriorated and tormented physical condition. At that time all wounds due to torture were fresh on his body."

In the petition as well as personally, she requested the Minister to have the whole matter investigated and give permission to get her husband medically examined.

Copies of the petition were forwarded to all concerned including the Prime Minister. Nothing happened except that she received an acknowledgement which said "Your petition has been forwarded to the Chief of Army Staff for necessary action." And of course the Chief was busy taking necessary "actions". Any further correspondence, the acknowledgement read, should be made directly with him.

She even went to Mrs. Indira Gandhi, though of course the latter had her own problems as the Janata Government was trying to crush her.

Disappointed from all sides she approached the Supreme Court and filed a writ of Habeas Corpus. Thus for the first time the matter came into the Press.

I started getting regular letters but I was perturbed to find that none of the letters written by me were received by my wife. I complained of the matter of my CO, but without results. My letters were held up because they reflected the incompetence of the commanders concerned and about the details of constitutional violations.

The authorities had found another way to continue the harassment, by holding the letters of my wife and denying her the access to information which could have been very damaging to the Intelligence Directorate.

On February 28, 1979, at about 5 P.M, Major Sharma alongwith a doctor entered my cell. He told me that a doctor had been sent to conduct my medical examination. He asked if I was willing to be examined.

It was after a lapse of exactly one and half months since my appeal for a medical examination, that the army authorities were able to spare a doctor! Was the medical examination such a serious operation that required so long a period to arrange? Was there any planning involved in simply sending a doctor? Or still, were the authorities trying to deceive me? Why did they send the doctor at that belated stage when the same authorities had not taken any cognizance of my request?

I considered the above questions to reach at a deduction :

The medical examination was nothing but an eye wash.

Sending of a doctor by the army authorities was probably the result of my wife's petition to the Defence Minister and others. However, the action of my wife was not an effective blow to cause any noticeable impact on the echelons of the army command.

It was observed by them without any efforts.

Since I was apprehensive of the real intentions, I refused to get myself examined by the army doctor. Was Captain Verma not a doctor? Verma had hinted at the way authorities were looking at me. Hence in response to the doctor's request I gave a written certificate of denial. I would have my medical examination carried out by impartial civil doctors.

I thought that the exercise of sending a doctor was planned due to the persistent letters from my wife asking the authorities to permit the examination by a civil doctor. How could such authorities allow it? Wouldn't that have exposed their shroud to the public and affect the security of the Nation? Or contrawise it would mean pointing a finger at the efficiency of the army doctors?

There is no denying that the army has highly qualified and an adequate number of doctors!

Whey when I pleaded, was no doctor made available, then?

The intention of the authorities concerned were soon realised through a letter written to my wife by the assistant Adjutant General (AAG), Lt. Colonel DN Tankha of Hqs 16 Corps. The letter which was signed on 01 March 1979, read :

"Dear Madam, 1. Kindly refer to your letter dated 09 February 1979. 2. Your husband, Capt. RS Rathaur, has been medically examined and found fit. He has been provided full medical facilities including attendance by a medical officer and there should be no cause of anxiety for you."

This letter was marked as CONFIDENTIAL!

Two things emerge from the contents of this letter. One : there had been no medical facilities given to me earlier; Two : there was a requirement of a doctor to attend to me regularly.

If that was not so, the letter would have not been written as it was, notwithstanding that the assurance was only in paper. Practically neither the medical examination nor the facilities of a doctor were given to me.

Couldn't the authorities inform my wife that I had refused for me medical examination, instead of issuing a fake letter? Where was the requirement to act dishonourably?

My wife got an opportunity in the first week of March to meet me for the second time. She had come to Nagrota to depose in the case of Sepoy Karam Singh.

The incident took place at the instance of the defending officer Captain Chaturvedi. I had stated while deposing, that I was on leave during the alleged period. So to have this statement verified, I had sent a written message through the brother of Karam Singh, to bring any material proof to show that I was in my village, on leave, during December '75 and january '76.

Following this, Shri Hem Raj the shopkeeper and Roshan Lal the secretary of cooperative society had come and deposed.

During my wife's visit she told me that she had approached the Defence Minister, and about the representations that she'd filed to various other dignitaries.

I was pleased with her efforts. I told her about the doctor who'd come to carry out my medical examination and that I had declined to get myself examined by the army doctors, as I was apprehensive about their attitude and their intentions.

After her return to the village my wife found the above letter of the Corps Hqs sent by AAG, Lt. Colonel DN Tankha. It was this letter which made her lose faith in the army authority. It could be, that they were afraid of their atrocities becoming public.

Whatever it was, she realised the things were not moving as per the law. Thus forced by the unconstitutional actions of the military dictators, she had filed the writ with the Hon'ble Supreme Court at the end of March 1979. The court while admitting the writ issued notice to the Union Government and Director of Military Intelligence, returnable by 3 April 1979. The court also gave her the right / liberty to apply for the production of her husband by 04 April 79. This was reported by all the news papers, in India.

The news was given to me the same day by the CO, who looked very worried. From his talk and his actions the CO conveyed an impression of complete innocence against atrocities and illegalities which were being perpetrated upon me under his command. He said, `The people who have wronged you will pay for their deeds. Rathaur tell me, have I not given you full cooperation? You see everything was being controlled by the Corps Hqs I have nothing to do with your case. You must understand my position. Right? You know I went out of my way to send a telegram to your wife informing her that you have received four of her letters. That was on my own initiative the Corps Hqs does not know about that?'

`Well, sir, I really thank you, for that,' I believed what the CO told me.

`By the way you'd asked me to permit you to sit in the sun. That has been now clarified. I have been told, you can sit in the sun for an hour daily. Okay?'

`That's fine I am grateful to you, sir. But I don't need any sun during this season of the year, Instead of this, I will now request you whether the ceiling fan can be made functional?'

`Of course it can be done but I suggest you utilise the time given to you for exercise. In your state of physical debilitation it would do you good,' The CO suggested, and before leaving he stressed upon me not to tell anybody that he had disclosed the news to me!

Under the excitement of good news I raved. I could not sleep the entire night. I read and re-read the news that had appeared in the paper, specially sent for me by the CO, till I could remember each word by heart. I imagined and pictured the future, the way I thought it would happen. Overcharged by my emotions and unable to control them, I started praying while I cried out my heart to God.

The next day, I found my wife reflecting a contented happiness over her success. But was the successful?

Since the court had given the liberty for the production of her husband, my wife had applied accordingly. Hence she returned to Delhi the day after of her arrival in Nagrota.

We expected to meet on 04 April. By April 3rd I was very hopeful of being sent to Delhi, unaware, that this time also, my hopes were to be dashed to the ground as usual. I kept waiting hopelessly to be shifted. When I found there was no hint of any action being taken in that direction, I once again went into morbid depression, wondering why I was not shifted to Delhi. I wanted to find out from the CO the reasons, instead he became once again, hardened in his attitude, as he had been earlier.

On 9 April '79, the doctor who had earlier come for my medical examination, and whose name I later came to know as Captain Asis De, came accompained by the CO.

The CO said that I was required to be examined medically. I apprised the CO that I had already refused to get myself examined by any army doctor. But the CO insisted that the "particular" medical examination was required in connection with my trial, which was being held shortly.

I was carried away by the news. I was very happy thinking the day had come when I would bring out the whole conspiracy in the open. I conceded and the medical examination was carried out. Helping the Medical Officer in the examination, was Lt. Colonel SS Sohi, an officer from the Electrical and Mechanical Engineering (EME) branch of the Indian army!!

The medical examination was not carried out, for the purpose as was told to me. In fact the report was to be produced in the Supreme Court. The report realised my apprehensions about the credibility and impartiality of army doctors. It was simply a report.

My medical examination was of a clinical nature. Captain De was not qualified to conduct such an examination. The maximum he could do was to refer me to a specialist.

Captain De did not think it appropriate to do so. Was he pressurised from the top?

On April 11, 1979, my wife was back in Nagrota. She met me and told me the reasons why I was not produced in court. During the transit I could be killed by either my accomplices or the Pak Masters! The Solicitor General had contended on behalf ofthe army, and the court would not take the risk.

Dismissing the writ the court observed that since my GCM was already in progress, the writ had become infructuous. However the court upon the complaint of torture, gave its directions Justice shoud not be actually done, but it must appear to have been done. In the circumstances therefore, if the petitioner makes an application to the military authorities for getting the detenue examined by the Principal Medical College Jammu, the said authorities will seriously consider the desirability of doing so in order to illustrate the principle that Justice must appear to have been done. Such examination by a civil doctor should not be taken as casting any reflection or aspersion on the impartiality or competence of the doctors of the Military department. Nor shall this be treated as precedent in other cases."

With these observation the petition was dismissed on 28 April. There were two striking aspects. One ; the writ of Habeas Corpus was heard incamera, probably for the first time in the history of such writs. Two; I was never produced in the court even after the highest court of the land had given liberty to the petitioner and the court declared the writ as infructuous on the grounds that the trial was already in progress. The trial had not started when he writ was filed and the same was admitted.

My trial was held on 17 April 1979, whereas the writ had been admitted on 28 March and at that time there was no possibility of commencing the trial. In fact the Solicitor General himself was not sure when the trial would commence. When the Hon'ble Judges asked him to specify, the dates of GCM was initially given as May, then advanced to April 1979. In April too, he changed two dates and gave 17 April as the date, after pressure from the court.

Why the Hon'ble Judges of the Supreme Court declared the writ as infructuous and allowed the trial by the GCM? May be they considered the matter and refrained from interfering in the army matters affecting the security of the country! Alas! if only the writ had been allowed and the case decided by the Judge of the Supreme Court. But it was not to be!

A counter affidavit filed by the Army authorities was completely false, but the counsel for the petitioner Mr. Danial Latif could not argue, possibly without correct information. And the correct information was not known to Mrs. Swaran Rathaur the petitioner! It would have been a different matter had I been allowed and produced in court in person.