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Amnesty International Report on Arbitrary Detention in Jammu and Kashmir (2011)

Document type:
Report

    Amnesty International Report on Arbitrary Detention in Jammu and Kashmir (2011)

    Commentary

    In 2011 and 2012, Amnesty International published two reports detailing the arbitrary detentions used against citizens in Indian-administered Jammu and Kashmir. Titled India: A ‘Lawless Law’ (2011) and India: Still a Lawless Law (2012), the report describes the system of arbitrary detention as part of a connected complex of practices that, along with torture, extrajudicial and custodial killings and disappearances constitute grave violations of human rights. In a telling moment, Samuel Verghese, then Financial Commissioner Jammu and Kashmir, is quoted as saying that certain political dissidents simply need to be kept “out of circulation.” Laws such as the Public Safety Act (PSA) and National Security Act (NSA) allow “preventive detention” on suspicion for up to one year, without any charges being filed. At the end of one year, the detainee is not released but is often held on different grounds. The document outlines the “Grounds of Detention” on which the prisoner has been held without any charges ending filed in court. In several cases, detention “on suspicion” can last for over a decade, while court orders mandating the release of prisoners are routinely ignored. The 2011 report is excerpted below, and discusses the case of Shabir Ahmad Shah, kept “out of circulation” from 1989 to 2010.

    —Shubh Mathurs

    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. His incarceration has been solely for peacefully expressing his political views. Shah was last released from prison on 3 November 2010 but since that time has been subject to periods of arbitrary house arrest.

    At the time of Amnesty International’s visit to Srinagar, the capital of J&K, in May 2010, Shabir Shah was in prison. Amnesty International was denied permission by the state authorities to meet with him, but was able to meet his wife Dr. Bilqees who said, “His continuing detention is a tactic to break his resistance. The government think that if they keep him away from us and make us all suffer, he will agree to remaining silent. Even though he is concerned about our daughters who rarely see their father, he will not desert his principles.”

    Shabir Shah is one of the most high profile of those detained under the Jammu and Kashmir Public Safety Act, 1978 (PSA) but he is only one among thousands who have been detained without charge or trial in this manner. Estimates of the number detained under the PSA over the past two decades range from 8,000-20,000.

    This report reveals how the PSA violates India’s international human rights legal obligations. It further provides evidence of the ways in which administrative detention under the PSA continues to be used in J&K to detain individuals for years at a time, without trial, depriving them of human rights protections otherwise applicable in Indian law.

    The report is based on research conducted by an Amnesty International team during a visit to Srinagar in May 2010 and subsequent analysis of government and legal documents relating to over 600 individuals detained under the PSA between 2003 and 2010. The research shows that instead of using the institutions, procedures and human rights safeguards of ordinary criminal justice, the authorities are using the PSA to secure the long-term detention of political activists, suspected members or supporters of armed groups and a range of other individuals against whom there is insufficient evidence for a trial or conviction – to keep them “out of circulation.”

    The region of Kashmir has been a source of dispute in South Asia for decades. But since 1989, J&K has witnessed an ongoing popular movement and armed uprising for independence. Armed groups regularly carry out attacks on security forces as well as civilians. Amnesty International acknowledges the right, indeed the duty of the state to defend and protect its population from violence. However, this must be done while respecting the human rights of all concerned.

    Amnesty International takes no position on the guilt or innocence of those alleged to have committed human rights abuses or recognizably criminal offences. However, everyone must be able to enjoy the full range of human rights guaranteed under national and international law. By using the PSA to incarcerate suspects without adequate evidence, India has not only gravely violated their human rights but also failed in its duty to charge and try such individuals and to punish them if found guilty in a fair trial.

    Over the past decade there has been a marked decrease in the overall numbers of members of armed groups operating in J&K. By the J&K Police’s own estimates, only around 500 members of armed groups now operate in the Kashmir valley. But in the last five years, there has been a resurgence of street protests. Some of the protesters, most of them young, have resorted to throwing stones at security forces, which have on many occasions retaliated with gunfire using live rounds. Despite this apparent shift in the nature of opposition to the Indian state, there does not appear to be a change in the approach of the J&K authorities. They continue to rely on the extraordinary administrative detention powers of the PSA rather than attempting to charge and try those suspected of committing criminal acts. Between January and September 2010 alone, 322 people were reportedly detained under the PSA.

    Many of these individuals may have been detained after being labelled as “anti-national” solely because they support the cause for Kashmiri independence or a merger with Pakistan and because they are challenging the state through political action or peaceful dissent. Some of the political activists detained under the PSA include lawyers and journalists. Besides Shabir Shah, a number of prominent political leaders have been detained under the PSA; many including Masarat Alam Bhat remain in detention.

    Amnesty International opposes on principle all systems of administrative detention. The Indian Supreme Court has also described the system of administrative detention as “lawless law”. The PSA has become precisely such a “lawless law”, largely supplanting the regular criminal justice system in J&K. Criminal justice systems have developed procedures, rules of evidence, and the burden and standard of proof in order to minimize the risk of punishing the innocent and to ensure punishment of the guilty. It is unacceptable for any government to circumvent these safeguards by use of “preventive” or any other form of administrative detention: punishing those suspected of committing offences without ever charging or trying them.

    The rate of conviction for possession of unlawful weapons – one of the most common charges brought against alleged supporters or members of armed groups – is 0.5 per 100 cases: over 130 times lower than the national average in India. Similarly the conviction rate for attempt to murder in J&K is eight times lower than the national average, seven times lower for rioting and five times lower for arson [...] In contrast, the number of persons in administrative detention without trial in J&K is 14 times higher than the national average – a possible result of the monthly / quarterly “targets” or quotas of detentions apparently followed by the J&K police

    Many of the people detained under the PSA without charge or trial for periods of two years or more may have committed no recognizably criminal offence at all. Under the PSA, detention can be justified for undefined acts “prejudicial to the security of the State” and for extremely broadly defined acts “prejudicial to the maintenance of public order”. The possibility of detention on such vague and broadly defined allegations violates the principle of legality required by Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR), to which India is a party.

    Detainees also cannot challenge the decision to detain them in any meaningful way; there is no provision for judicial review of detention in the PSA; and detainees are not permitted legal representation before the Advisory Board, the executive detaining authority that confirms detention orders. The United Nations Working Group on Arbitrary Detention (WGAD), in a November 2008 opinion on 10 PSA cases from J&K, found that the detentions did not conform to the international human rights legal obligations that the Government of India is bound by.

    Furthermore, state officials often implement this law in an arbitrary and abusive manner, as numerous cases cited in this report demonstrate. Detaining authorities fail to provide material on which the grounds of detention are based to detainees or their lawyers. Detainees can approach (often successfully) to the High Court to quash their order of detention, but Amnesty International’s research clearly shows that the J&K authorities consistently thwart the High Court’s orders for release by re-detaining individuals under criminal charges and / or issuing further detention orders, thereby securing their continued incarceration. The ultimate decision as to whether PSA detainees are allowed to go free lies with an executive Screening Committee made up of government officials, police and intelligence officials whose deliberations are not open to any public scrutiny.

    Systems of administrative detention are notorious for facilitating human rights violations, including incommunicado and illegal detention and torture and other forms of ill-treatment in police and judicial custody. The PSA is no exception. Many of the PSA cases studied by Amnesty International for this report contained evidence of periods of illegal detention in violation of national and international law. Many alleged the use of torture and other forms of ill-treatment in coercing confessions. The PSA provides for immunity from prosecution for officials operating under it, thereby permitting impunity for human rights violations carried out under the law.

    Amnesty International has previously called on the Government of India to reform its administrative detention system, as have other international human rights organisations and a number of UN human rights mechanisms. India has so far chosen to ignore such calls. In a meeting with Amnesty International delegates in Srinagar in May 2010, the then Additional Director General of Police (Criminal Investigation Department) of J&K asked, “What rights are you talking about? We are fighting a war – a cross border war.”

    Such opinions, and the practices that result (as documented in the current report), run directly counter to legal commitments made by India in ratifying international human rights treaties, and assertions regularly made by government officials at both the state and central level that the rule of law should prevail in J&K. The widespread and abusive use of the “lawless” PSA, far from building confidence amongst the Kashmiri population, further risks undermining the rule of law and reinforcing deeply held perceptions that police and security forces are “above the law.”

    Source: Amnesty International. India: A 'Lawless Law’: Detentions under the Jammu and Kashmir Public Safety Act. 21 March 2011. http://www.amnesty.org/en/library/info/ASA20/001/2011.

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