“We have to keep some people out of circulation…”
– Samuel Verghese, then financial commissioner
(home), Jammu and Kashmir, in a meeting with Amnesty International,
Srinagar, May 20, 2010.
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. 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 November 3, 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 Jammu and Kashmir, 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 Jammu and Kashmir 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, Jammu and Kashmir 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 recognisably 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 number of members of armed groups operating in
Jammu and Kashmir. By the Jammu and Kashmir 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 Jammu and
Kashmir 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 Jammu and Kashmir. Criminal justice
systems have developed procedures, rules of evidence and the burden
and standard of proof in order to minimise 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 Jammu and Kashmir 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 Jammu and Kashmir
is 14 times higher than the national average – a possible result of
the monthly/ quarterly “targets” or quotas of detentions
apparently followed by the Jammu and Kashmir police.
Many of the people detained under the PSA without
charge or trial for periods of two years or more may have committed no
recognisably 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 Jammu and Kashmir, 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 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) the high court to quash their order
of detention but Amnesty International’s research clearly shows that
the Jammu and Kashmir 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 Jammu and Kashmir asked: “What rights
are you talking about? We are fighting a war – a cross-border war.”
Such opinions, and the practices that result,
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 Jammu and Kashmir. 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”.
Recommendations
Amnesty International calls upon the government of
Jammu and Kashmir to:
Ř Repeal the PSA and end the system of
administrative detention in Jammu and Kashmir, charging
those suspected of committing criminal acts with recognisably criminal
offences and trying them in a court of law with all safeguards for
fair trial provided;
Ř As a means of demonstrating the government’s
commitment to the rule of law, end practices of illegal and
incommunicado detention and immediately put in place safeguards
to ensure that those detained are brought promptly before a
magistrate, provided with access to relatives, legal counsel and
medical examination and held in recognised places of detention pending
trial.
The governments of India and Jammu and Kashmir must
further:
Ř Carry out an independent, impartial and
comprehensive investigation into all allegations of abuses against
detainees and their families, including allegations of torture and
other ill-treatment, denial of visits and adequate medical care, make
its findings public and hold those responsible to account.
Amnesty International urges the government of India
to:
Ř Extend invitations and facilitate the visits of
the UN special procedures, including particularly the UN special
rapporteur on torture and the Working Group on Arbitrary Detention.
(The above article is excerpted from the chapter
entitled ‘Introduction and Summary’ in the Amnesty International
report, ‘A ‘Lawless Law’: Detentions under the Jammu and Kashmir
Public Safety Act’, released on March 21, 2011.)