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Discriminatory Indefinite Detention Increases in Kashmir

(Photo: Jelle Vancoppenolle / Flickr)


Discriminatory Indefinite Detention Increases in Kashmir

(Photo: Jelle Vancoppenolle / Flickr)

April 5, 2011, was the happiest day in 14-year-old Faizaan Rafiq's life. On that day, Rafiq was released from prison after two and a half months. On February 7, 2011, he had been arrested on charges of rioting and violent protest and booked under the Public Safety Act (PSA).

Rafiq lived behind bars, away from his loved ones with no one to care for him. Except for the occasional visits from his family members, Rafiq was alone for the first time. The separation from his family was the hardest part.

“I missed my home so much that I would cry all day and night. I was very scared when I was arrested. It was a nightmarish experience,” said Rafiq.

The pain was not just emotional, but physical, too. The prison's scorching heat and its lack of basic facilities made Rafiq sick. “I constantly suffered from vomiting, headache and nose bleeding. It was so bad,” recalled Rafiq, adding that six more people detained under PSA lived with him in the barrack. About the grounds for his detention, Rafiq said he never threw a stone or participated in riots.

Though Rafiq's ordeal was short-lived, for Mushtaq Ahmad, the nightmare lasted for a year. “I was having tea with my friends at a rickety restaurant when police came and arrested me. I was stunned,” said Ahmad, who was also arrested for stone pelting and rioting under the PSA early this year.

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Ahmad, who is 15 years old, (though police claimed he was 19), was the sole breadwinner of his family, which includes his ailing father, his mother and seven sisters.

“Mushtaq left his studies and worked as a bus conductor to support the family, but when he was arrested, we had none to earn,” said Ahmad's father.

In prison, Ahmad spent his time praying and missing his family. “I kept waiting for the day I will be home with my family. I missed them so much,” said Ahmad. For months, he was shifted from one jail to another while his parents fought to get him out. “We cannot say how hard it has been for us to live away from our son and struggling to get him out of prison,” said Ahmad's father.

The stories do not end here. The PSA accounts for a great number of painful stories of detentions in Indian-administered Kashmir. Though, theoretically, the act is a preventive detention law for maintaining law and order, it has, in many cases, appeared to be a means of suppressing the voices of people in Kashmir.

Since the beginning of the Kashmir insurgency against Indian occupation in 1989, thousands of people have been jailed under the PSA, usually for demanding justice and an end to human rights violations. Along with leaders and activists, citizens from all walks of life have been gripped by this law. Men, women and youth, as well as minors (in Kashmir, those under age 16) are slapped with the PSA. The charges for detention in all cases are the same: threat to the security of nation. Since 2008, the pace of detentions under the law has quickened.

Kashmir has been in the grip of massive anti-India protests since 2008 and government forces have been shooting and killing protesters, detaining hundreds of activists and usurping the people's right to assemble.

The protests started in the summer of 2008, when the Kashmir government decided to donate a piece of land to a revered Hindu shrine managed by Indian Hindus. Indians are not permitted to buy land in Kashmir, and the step was seen by Muslims as an unwelcome change in this arrangement. Scores were killed in the uprising that ensued. In the following year, Kashmir erupted again over the alleged rape and murder of two women. Investigations by federal detectives concluded that the two were neither raped nor murdered, but had drowned in a shallow stream. The theory has not been accepted by the local population.

The biggest protests happened last year after a police tear gas shell killed a 17-year-old student, Tufail Matto, during an anti-India protest. The agitation that followed left more than 113 Kashmiris dead, most of them in shootings on processions by Indian security forces. Hundreds of people were detained during and after the agitation, which lasted for six months. The authorities continue to detained people under the PSA for their alleged involvement in the 2010 unrest to prevent further disturbance of law and order in Kashmir. Many, such as Rafiq and Ahmad, though not associated with any organization, are facing detentions in the wake of last year's protests and violence.

The PSA empowers the state to detain a person without trial for at least two years for offenses that include a broad range of activities, including promoting, propagating and attempting to create feelings of enmity, hatred and disharmony on the grounds of religion, race, caste, community and region, and disturbing public order and safety.

Historically, the people of Kashmir have been facing such detentions for centuries. Though the draconian PSA is the contemporary tool, in ancient days there were no laws or rules. An arbitrary decision of the authorities was enough to detain anyone.

The history of such detentions and rebellions in Kashmir began from the Mughal rule in Kashmir, which took over in 1586 after the last Kashmiri ruler, Yaqub Shah Chak, was defeated by the Mughals. Unable to tolerate the occupation of their motherland, many Kashmiris took to arms and raised their voices against the Mughals, who ruled Kashmir for 167 years. The Mughals came down heavily on the protesters. They were detained, jailed and killed. “Though there existed no law or rule defining various crimes and their punishments, it would be the arbitrary decision of the people at the helm of affairs to detain whosoever they wished to, and some used to die in the jails,” said Zareef Ahmad Zareef, an eminent writer and social activist from Kashmir.

When Mughal rule was succeeded by Afghan rule in 1752, and again when the Sikhs took over from 1819 until 1846, atrocities against the general public and protesters continued. From time to time, Kashmiris raised their voices against the occupations of different dynasties, but each time, they were crushed. They were detained and killed.

The laws and rules that set the stage for PSA were framed during Dogra (Hindu) rule, which began in Kashmir in 1846 and lasted until 1947. Under Maharaja Ranbir Singh (Dogra ruler of Kashmir from 1857-1885) a code of conduct, called the Ranbir Panel Code, stated various crimes and their punishments.

It was also during the rule of Ranbir Singh that the trend of judicial proceedings came into being in Kashmir. The first prison, SR Ganj, was set up in the Zaina Kadal area of the old city of Srinagar (Kashmir) during the same period.

Atrocities during the Dogra rule were equally severe. “The rebellions and protesters rising against the government would be crushed. Detention was quiet prevalent. The only difference was that of existence of a law,” said Zareef Ahmad.

During the British rule in India, a preventive detention law was introduced, namely, the Defense of India Act, to suppress the Indian freedom movement in 1915. After India gained independence from British rule, the act changed nomenclature to become the Public Safety Act. The act was enacted in Jammu and Kashmir in 1978 to combat timber smugglers, who were damaging the environment in the scenic region and endangering wildlife with their poaching practices. The situation forced the authorities to take to the harsh law, but it, nevertheless, came to be used for political interests.

Though the act has been more prominently used since 1989 in Indian-administered Kashmir, the past three years have seen the maximum detentions under the PSA. Looking at the official records regarding the number of persons detained under the PSA recently, contradictory figures surface. According to the home department of the state, 137 persons have been detained under the PSA across the state from March 2010 through February 2011. Around 32 of them have been released, while 105 still languish in various jails. However, Kashmir's inspector general of police S.M. Sahai said around 171 people were detained under the PSA during the summer unrest of 2010, of which 57 have been released.

Police officials justify the arrests and jailing of youth under the PSA, saying it is imperative to maintain peace and order in the Valley.

“We really need PSA in Kashmir because the situations here are abnormal. We need this Act to curb the anti-national elements and maintenance of peace,” said Parvaiz Ahmad, deputy superintendent of police.

Giving detail of the process of detentions, he revealed, “A dossier is prepared, grounds of detentions are given and produced before the district commissioner. It is only after the commissioner is satisfied that the warrant for arrest under PSA is issued.”

The arrests mostly take place during demonstrations and after the protests are over. Undercover police keep an eye on possible troublemakers, identify their names and localities and later arrest them with the help of police and paramilitary forces, mostly in raids on the residences or places frequented by youth, such as tea stalls and restaurants.

The international human rights organizations largely condemn the use of the PSA in Kashmir, holding that its usage further risks undermining the rule of law and reinforcing deeply held perceptions that police and security forces are above the law.

In its recently released report on the PSA in Kashmir, Amnesty International has called for the scrapping of the law. The report states that 20,000 people have been held under the PSA since 1989 in Kashmir:

Hundreds of people are detained under PSA in Jammu and Kashmir, many of them political activists and youth suspected of throwing stones at security forces. Instead of trying and charging persons suspected of committing offences in a fair trial in court of law, the Jammu and Kashmir authorities continue to circumvent the rule of law by resorting to PSA.

Repealing the PSA and ending the system of administrative detentions in Jammu and Kashmir would also bring India in conformity with its international human rights legal obligations. Successive international human rights mechanisms, such as UN HRC, the Committee on the Elimination of Racial Discrimination and most recently the Special Rapporteur on the situation of human rights defenders have criticized India's administrative or 'preventive' detention legislation including the Public Safety Act. The widespread and abusive use of lawless PSA further risks the undermining rule of law and reinforcing deeply held perceptions that police and security forces are above law.

A Human Rights Watch (HRW) report on the PSA found, “The Jammu and Kashmir Public Safety Act (PSA), enacted in 1978 and amended in 1987 and 1990, allows for immunity from prosecution, stating that: No suit, prosecution or any other legal proceeding shall lie against any person for anything done or intended to be done in good faith in pursuance of the provisions of this Act.”

According to HRW:

The PSA is an overly broad and vague preventive detention law that allows the government to keep an individual in detention without trial for up to two years to prevent them from, 'acting in any manner prejudicial to the security of the state or the maintenance of public order.' Repeal the Public Safety Act, which allows preventive detention for two-year renewable periods for offenses defined by vague and overbroad terms, and violates international due process standards.

Dr. Angana Chatterji, an anthropology professor at the California Institute of Integral Studies and co-convener of the International People's Tribunal on Human Rights and Justice in Indian-administered Kashmir, believes the PSA is being used to silence the voice of the Kashmiri people, confirming that the act, “continues to be used in Kashmir to repress civil society dissent.”

She adds that the PSA is used to contain civil disobedience and detain people characterized by the Indian forces as “anti-national” and “agitational terrorists.”

“People, including minors, and political leaders that participate in resistance to state repression have been booked under the PSA,” said Angana.

Angana added that the PSA is a security legislation that contravenes international humanitarian laws and norms and must be revoked and withdrawn, together with the Armed Forces Special Powers Act and the Disturbed Areas Act.

“In July 2010, Advocate Mian Qayoom, president of the Jammu and Kashmir High Court Bar Association and a human rights defender, was booked under the PSA. Advocate Qayoom was targeted because of his longstanding work in defense of human rights, and, in particular, because of his legal advocacy for the detained and disappeared in Kashmir, and his support of self-determination,” Angana said.

Kashmir-based human rights activist Parvaiz Imroz also advocated for the repeal of the PSA. “PSA is an administrative detention which is being used to silence the dissent of people without trial,” said Imroz.

Regarding the detention of minors, Imroz commented, “It is really inhuman to book a minor under the PSA, and that, too, without trial. Even children are put behind bars.”

Legal experts here are of the view that the PSA in Kashmir is put in place with an intention to misuse it against the people in general. According to Human Rights Law Network's Syed Faisal Qadri, “Ordinarily, laws like such are enacted with a view to contain peace in the society. But in Kashmir, it has been the real cause of violence, as many innocent persons including children, women and aged persons are being booked in the name of anti-national activities. The intention of the government seems to book all persons, whether or not involved with the political movement under PSA, which is not the purpose of the Act.”

Elaborating on the detention of teenagers and minors, Faisal adds, “Detention of children under the PSA is completely against the mandate of the Juvenile Justice Act and should not be done at all. Safeguards are provided under Indian law and international laws for children against all sorts of detentions. Therefore, the PSA is against the spirit of all such laws.”

Indicating that laws like the PSA are a barrier in a contemporary world, which is fast moving toward prioritizing the welfare of citizens, Faisal said, “PSA is seen as a draconian law by the citizens … In any society which is against any such law, there is no reason for any such laws to be there when the people do not want it.”

Even in the midst of these legal debates and political struggles, the detained youth have displayed courage and dedication to their goals. Some 40 inmates in Srinagar's Central Jail pursued their academic examinations from behind bars. According to the jail authorities, the number of inmates appearing for examinations was much higher this year than in previous years, due to the scores of youth detained recently. According to jail records, this year, nine inmates appeared for matriculation, one in the 11th grade, eight in 12th and 19 for graduation examinations. It has been reported that almost 70 percent of the youths presently detained under the PSA are students pursuing their studies.

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