The 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.
Amnesty 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.
The 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.
For 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.
The 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 donewithout
any legal ground and are often based on vague or fabricated evidence and
without any pplication 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 agencycan
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. TheJammu
and Kashmir Juvenile Justice Actprovides 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.
Second 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
suggeststhat 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:
Under 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.
The 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 thedetainees. 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.
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