Preventive Detentions in Kashmir: Still a Lawless Law

204244_206856999338296_100000419918643_717016_4903588_oAdmin’s Note: The people residing in Kashmir and some parts of the North Eastern states have for long been subjected to atrocities and unnecessary interferences by the armed forces in their daily lives. The Jammu and Kashmir Public Safety Act, 1978 and the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990 have been misused severely and this has attracted condemnation from several noted human rights activists and organisations. In 2011, Amnesty International had come out with a report titled ‘A Lawless Law’ on the Jammu and Kashmir Public Safety Act, 1978. The law was amended in response to this and thereafter Amnesty International again came out with a report to study the effect of the amendments. What follows in the report can be summed up by its title – ‘Still A Lawless law’. The term ‘lawless law’ was used by the Supreme Court of India to describe preventive detention laws in a number of cases. In this post, Gazala Peer a resident of Sopore in Kashmir has reviewed this report. She recently completed her LLM from the National University of Juridical Sciences, Kolkata and is an independent legal researcher since then. Incidentally, Sopore, her hometown has been continuously in the news since last month due to the public outcry over Afzal Guru’s hanging in Tihar jail and the subsequent clamping of curfew in that area for several weeks.

Stone pelting   1The political status of the territory of Jammu and Kashmir remains controversial for the past sixty-five years. After peaceful methods and negotiations failed, the people of Jammu and Kashmir took to arms in the year 1989. Since 1989, Jammu and Kashmir has seen fierce demand for self-determination and independence. To suppress the movement, the government of India and the government of Jammu and Kashmir joined hands. The methods of repression which were/are being used range from imposition of black laws to official impunity provided to the armed forces and rigorous use of certain old legislations. The Public Safety Act of 1978 and the Armed Forces Special Powers Act, 1990 are invoked by the armed forces to maintain “public order” or the “security of the state”. These laws although being used on the pretext of protecting the local population of Jammu and Kashmir have been the major cause of human rights violations.

psaAmnesty International in the year 2011 released a report titled ‘A Lawless Law’ on the Jammu and Kashmir Public Safety Act, 1978. After the report was released some major developments took place in Jammu and Kashmir. The UN Rapporteur was allowed to visit Kashmir after twenty years and this apart a team of Central Government appointed interlocutors was sent to assess the ground realities in Kashmir. The rapporteur urged India that it should take measures to ensure human rights are not violated and the interlocutors urged for removal of draconian legislations which do not serve the purpose. In this backdrop the PSA was amended in the year 2012 to bring it in tune with the constitutional and basic rights of the people. As a follow up, Amnesty International again assessed the PSA (amended) and released a report titled ‘Still A Lawless law’ to study whether the amendments have improved the human rights situation under this particular law or not.

The Amnesty International report of 2011 A ‘Lawless Law’ had raised concerns that the Act poses a threat to certain basic and fundamental rights of the people of Jammu and Kashmir: the right to life and liberty, right to freedom of speech and expression and right to free movement.  It further says that the abuse which is inherent in the Act poses serious threat to the safety and security of the population of Jammu and Kashmir.

1345211861-kashmir-observes-alquds-day-amid-stone-pelting_1392518The main feature of PSA are that the Act allows detention of any person on the grounds of mere suspicion that he/she may disrupt law and order in the state or may act in a manner prejudicial to the security of the state. Further, under this Act the state while preventing smuggling of timber or preventing presence of a foreigner or a person who is residing in the territory of Jammu and Kashmir under the occupation of Pakistan, may detain such person. The order of the detention under the PSA cannot be held to be inoperative or invalid on the grounds of technical issues, vagueness, nonexistence of one or more grounds or that the grounds are irrelevant, or the officer had no territorial jurisdiction to make such detention.  The government has powers to restrict or stop circulation of any documents in and out of the state and may seize those documents to prevent entry. The Act also empowers the government to declare any area as prohibited or protected and can restrict entry thereto.

Backed by case studies the Amnesty International in its report of 2011 immaculately and comprehensively analysed the PSA in Jammu and Kashmir and concluded that this Act is not only in serious violation of basic human rights but is in fact contrary to India’s obligation under domestic and international law. The report evidently demonstrates that in Jammu and Kashmir PSA is being used to detain people without charge or trial. This report reveals how PSA continues to be used in Jammu and Kashmir to detain individuals for years at a time, without any charge or trial.

picture-31For instance, Shabir Ahmad Shah has been kept “out of circulation” and in and out of prison for much of the time since 1989, when a popular movement and armed uprising for independence began in the Indian state of Jammu and Kashmir (J&K). As the leader of the Jammu and Kashmir Democratic Freedom Party he has been amongst the most vocal and consistent voices demanding an independent Kashmir. As a result he has spent over 25 years in various prisons, much of it in “preventive” or administrative detention, that is, detention by executive order without charge or trial.

India Kashmir ShootoutThe report showed that the PSA bypasses all the institutions, procedures and human rights safeguards of ordinary criminal justice system in order to secure a long detention term. The report further showed that the PSA incarcerates suspects without adequate evidence, a fair trial, without following rules of evidence, and the burden and standard of proof that one is expected to follow in order to minimize the risk of punishing the innocent, are bypassed under the Act.  It further highlights that from last five years there has been resurgence in the number of street protests in Jammu and Kashmir and that these protests largely comprise of young boys and children. State authorities have largely controlled these protests by extensive use of PSA being slapped on them. The report raises serious concerns that despite the shift in the situation (in terms of dying militancy) the government still uses such extraordinary measures in Jammu and Kashmir. Protestors in Kashmir are often labelled as “anti-national” solely because they express their political dissent through peaceful action. While reviewing background of the people booked under PSA, the report highlights that the people detained under PSA include political activists, lawyers and journalists. This report brings to light the fact that this Act allows the State and its law enforcement agencies to book people on mere suspicion and against whom no concrete proof of guilt can be established. While analysing the cases under PSA, the report interestingly highlights that the rate of conviction for possession of unlawful weapons which is one of the most common charges of detention is 0.5 per 100 cases, which is 130 times lower than the conviction rate in India for the same offense, if prosecuted before the civil court but the PSA allows State and its law enforcing agencies to detain people all together for years without any legal recourse and without any chance of them being produced before the court.

 As the report is quite extensive it also highlights that the PSA is violative of the principle of legality under international law. Delayed and secret reasons for detention (which are not communicated to the detainees), detainees having no recourse to justice (as no legal representation is permitted before the Advisory Board which is there to review the order of detention), the indefinite detention of foreign nationals and the immunity provided to the officials from prosecution under the Act.

In addition, the report raises some relevant issues that within the detention processes, the incidents of serious abuses committed by the officials (unacceptable under the international and human rights law) have been reported from Kashmir. Further elaborating on this point the report emphasizes that in the cases of incommunicado detentions: detentions in secret places and without any formal orders jeopardizes the safety and life of a detainee (given the fact of disappearances in Jammu and Kashmir) and that these detentions are done 1279039016-protest-in-kashmir_48268without any legal ground and are often based on vague or fabricated evidence and without any application of mind. Further highlighting the nature of ‘lawlessness’ experienced under the PSA, the report emphasizes that the families are often denied access to the detainees and that  family members are not even informed about the place of detention. The report further elaborates that the practice of torture and ill-treatment towards the detainees is rampant. Once a person is detained it becomes impossible or difficult to live a normal life as the officials then use ‘revolving door detentions’:  that even as soon as one detention order is quashed by the High Court a new detention order is slapped. Highlighting the seriousness of the situation the report notes that the number of habeas corpus petitions in the Jammu and Kashmir High Court is so enormous that one day of the week is reserved for the same only.

One of the major concerns that the report reflects on is that the government and the law enforcement agencies have put up a bench mark for detentions and every agency in a particular area has to meet the minimum target. This would mean that a particular agency news_20_12_2010_1can detain and in fact detains anybody to complete the target. In pursuit of reaching the minimum target the agencies often violate child rights under the PSA. The Jammu and Kashmir Juvenile Justice Act provides that any boy who has attained the age of 16 years and any girl who has attained the age of 18 years is a juvenile. Whereas the law for the rest of India, and the conventions on the rights of a child, which India has ratified, the age of a minor is below 18 years. Further, PSA does not provide any specific provisions to set an age bar below which no one could be detained. Thus this leads to a situation where a large number of children are being detained for pelting stones or otherwise for meeting the target for detentions. These children are slapped with some of the most serious charges that include rioting, attempt to secession, anti-national activities, waging war etc. The report A ‘Lawless Law’ thus recommended that PSA should be repealed as it violates the basic human rights of the people of Jammu and Kashmir. It also urges India to ratify without reservations, and fully implement in practice the UN Convention against Torture and its optional protocols. The report further urges India to withdraw its reservation to Article 9 of ICCPR in the presence of Article 22 of the constitution of India which provides for preventive detention. However, the UNHRC, the expert body charged under the ICCPR with overseeing its implementation, has specifically clarified that Article 9 would also apply in cases of preventive or administrative detention despite reservations. The report also recommended that provisions must be there for compensation of illegal detention which Indian law is yet to bring in.

In the back drop of the recommendations by Amnesty International the government of Jammu and Kashmir amended the Act in the year 2012. It was hoped that these amendments will bring the Act in consonance with the fundamental rights guaranteed to the people of Jammu and Kashmir.

indianpolicekashmirSecond report by Amnesty International on PSA titled Still A Lawless Law’ was produced in continuation of the previous report titled ‘A Lawless Law’. The report focuses on whether the amendments have actually addressed the issues and concerns raised by Amnesty International earlier vis-a-vis Public Safety Act. While welcoming the amendments, Amnesty International has expressed hope that the state will further ensure that law and order situations are taken care of without compromising on the human rights. However, the report expresses serious concerns that even after the amendments the PSA continues to be an abusive law and continues to operate or being operated as A ‘Lawless Law’.

The second report in its introduction presents to the readers a classic case of detention under the PSA. The state authorities detain people on flimsy grounds and without any application of mind causing serious threat to the liberty of the people and making the whole population vulnerable to the abuse of the Act. This classical case further shows that the state has as a matter of policy used the tactics of  revolving door detentions (once the detention period is over or the court quashes the order and directs for the release, new detention order is slapped on that person) which puts the people behind the bars without any formal legal proceedings. The report expresses its concern majorly on the issues of detention without application of mind and revolving door detentions. The report suggests MDG-State-of-Kashmir-007that under the Act there have been around 15,600 illegal detentions (this number is even acknowledged by S M Sahai, the chief of police in Kashmir Division). The report notes that the political status of Jammu and Kashmir has been controversial for decades as the people are fighting for their right to self-determination and independence. The report acknowledges that the laws like the PSA and the Armed Forces Special Powers Act are draconian and violate basic human rights of the people.

 The report takes a note of the amendments to the PSA. They are:

•  Section 8 of the PSA was amended to provide that no person under the age of 18 may be detained under the PSA for offenses under sections 8(a) and (a-1) of the PSA.

•  Section 13 was amended to add that the grounds of detention have to be communicated to the detainee within 10 days from the time of arrest and in a language that he or she understands.

• Section 14 was amended to introduce a maximum term of office for the Chair and members of the Advisory Board. Now, they can hold office for a maximum of three years, which will be extendable for a further period of two years. Prior to the amendments, there was no maximum term.

•  Following the amendment to section 16, the Advisory Board must submit its report to the Government within a period of six weeks from the date of detention. They had eight weeks to do so prior to the amendments.

•  Section 18 was amended to reduce the maximum period of detention under the PSA. This was reduced from 12 months to three months, extendable to 12 months, in the case of persons “acting in any manner prejudicial to public order”. It was reduced from two years to six months, extendable to two years, in the case of persons acting in “any manner prejudicial to the security of the state”.

The report explains that even after amendments to the law the main provisions of the Act remain as under:

disappearedUnder section 8, a Divisional Commissioner or a District Magistrate may issue a detention order to prevent any person from acting in a manner prejudicial to the “security of the State” or “the maintenance of the public order”.

The authority is not required to disclose any facts “which it considers being against the public interest to disclose”.

As per section 22, no “suit, prosecution or any other legal proceeding shall lie against any person for anything done or intended to be done in good faith” under the PSA.

amnestyjandkThe report concludes that even after the amendments the PSA violates International Human Rights Law and international Human Rights Law in practice. The report focuses on the detention of children. Even though the PSA was amended to expressly bar detention of any person who is below the age of 18, the detention of children continue to be the practice in total disregard of the Act itself and the Convention on the Rights of a Child to which India is a signatory. The report provides us with the detailed proof where children below the age of 18 are falsely mentioned as 18 or above 18. In fact, Amnesty International found that in at least three cases authorities’ detained children by falsely recording their age as being above 18. Both Mohammad Rafiq Sheikh and Murtaza Manzoor Panzoo were detained when they were 17, but their grounds of detention stated that they were 19. This practice has become very rampant in the wake of stone pelting incidents. The report further raises concerns that necessary processes are being bypassed like communication of the grounds of detention are not made known to the Kashmir-PSA-Still-a-lawless-lawdetainees. Review by the Advisory Board is still done without any legal representation on behalf of the detainees and Revolving Door Detention remains the norm. Still detentions are made on the pretext of being supporters of pro-freedom parties and political dissent is still treated with slapping of PSA. The second report thus highlights that the amendments did not bring any significant change in torture trail or in other Ill-Treatment and lack of Medical Treatment to the detainees. The report rightly concludes that even after the amendments, PSA still remains a lawless law.

Image Courtesy: here, here, here, here, herehere, here, here, here, herehere, here and here

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