SRINAGAR, INDIAN-ADMINISTERED KASHMIR – Nazir Ahmad Matta, a resident of Srinagar, the summer capital of Indian-administered Kashmir, was detained under the Jammu and Kashmir Public Safety Act during October 2012.
Authorities alleged that he stole a car among other activities prejudicial to public order. They booked him under the controversial act, which critics say enables authorities to detain people for extended periods without charges or a trial.
Matta, a laborer who maintains that he’s innocent, is still in detention at Central Jail Kotbhalwal Jammu in Jammu and Kashmir state.
His wife, Sheebu Akther, is trying to get him released. She has consulted a lawyer, but Matta’s grandfather disagreed.
“I told Matta’s grandfather that [an] advocate charges 10,000 rupees ($180) for pleading the case and even offered to pay half the amount,” she says. “But he didn’t agree and asked me to wait [until] he is released on his own.”
Akther’s lawyer, Ghulam Nabi Shaheen, former general secretary of the Jammu and Kashmir High Court Bar Association, a voluntary association of lawyers, says that if Matta hadn’t been detained under the Public Safety Act, he would have been charged under section 379 of the Ranbir Penal Code, the state equivalent to the Indian Penal Code. This section governs car theft, with punishments ranging from three years to six years in jail and fines, if proven guilty.
“He should have been prosecuted before court,” Shaheen says, “and, if his guilt was proved, then [the] court would have sentenced him.”
Instead of providing Matta a fair trial, authorities put him directly into detention, which means he has already been punished for an offense he has not been proven guilty for, Shaheen says.
“Simply, this is abuse of power,” he says.
The Public Safety Act has long been controversial, with local and international critics citing extensive detention periods without charge, trial or legal resources. Last year, the state amended the act, which it insists is necessary to ensure public order and state security after conflict in the region. The government amended the act in 2012, but Amnesty International and Kashmiris alike say the changes aren’t enough and call for its repeal.
The Public Safety Act came into force in Jammu and Kashmir in 1978. It permitted people to be detained for activities deemed prejudicial to the security of state or public order for up to two years without charge, trial or legal resources, Shaheen says.
An anti-India armed insurgency broke out in the region in 1989, leading to two decades of conflict. The number of people detained since then under the Public Safety Act varies depending on the source.
S.M. Sahai, chief of police in the Kashmir Valley, one of three divisions in the state, acknowledged that around 15,600 people in the valley have been detained under the Public Safety Act without charge or trial during the last two decades, according to Amnesty International’s October 2012 report, “Still A ‘Lawless Law.’”
Meanwhile, the state government maintains that about 3,400 people have been booked under the act during the past two decades in seven of the Kashmir Valley’s 10 districts, according to its response to a Right To Information application – which allows citizens to legally obtain government records – submitted by Jammu Kashmir Coalition of Civil Society, a human rights group.
Chief Minister Omar Abdullah informed the State Assembly during March 2012 that at least 1,332 people have been booked under the act during the last three years in the state.
Shaheen calculates that there were more than 250 detentions under the act from January to October 2012.
“Out of these, more than 20 cases are minors and are under challenge,” he says.
Amnesty International has long noted violations of various rights under the act, including: unlawful deprivations of liberty through “revolving door detentions,” detention of children, torture, denial of medical care to detainees and lack of reparations for victims. Revolving door detentions refer to a practice of detaining people, releasing them, and then immediately redetaining them under the act.
Amnesty International followed up on its 2011 report on the act during two visits to the state during April and July 2012. It analyzed 110 detention orders and conducted interviews with police, lawyers, the State Human Rights Commission, media, civil society groups and the families of detainees.
“Despite legal and policy developments, Amnesty International’s key human rights concerns with the PSA and its application remain unchanged: the PSA is still a ‘lawless law,’” according to the 2012 report.
Hurriyat Conference-Geelani, a separatist group demanding the liberation of Jammu and Kashmir state from Indian rule, provides a list of 24 militancy-related detainees lodged at the Central Jail Kotbhalwal Jammu as of mid-October 2012. The list comprises 13 from India, five from Pakistan-occupied Kashmir and six from Pakistan, most of whom are affiliated with various militant groups.
Shaheen says he was himself detained under the Public Safety Act just southeast of Srinagar in July 2010 while serving as general secretary of the Jammu and Kashmir High Court Bar Association. He had been leading a protest demonstration against the arrest of the association president at the time.
“I was arrested and taken to Joint Interrogation Centre Jammu on the ground that I am ideologue of separatist movement,” he says.
A police officer, who spoke under condition of anonymity because of the sensitivity of the issue, says that people arrested don’t necessarily remain in the same area as the arrest.
“If anyone is arrested under this act, he can be lodged in jail anywhere in the country,” he says.
Shaheen says the length of detainment varies by detainee.
“This is illegal custody and varies from case to case,” Shaheen says. “It could be few days or months together. During this period, detainees are interrogated.”
He says that justice is weak.
“Most of the people detained under the act are innocents and suffer a lot until court comes to the conclusion,” he says.
The act allows for law abuse with the intention of punishing detainees, even using torture, he says.
“Detainees and their parents suffer from mental agony, physical pain, depression and no faith in judiciary,” he says.
He says those detained under the act perish inside jails because a lack of legal awareness and weak financial conditions. The state doesn’t provide public defenders.
“To date, we’ve not come across any such case where free legal aid has been provided to PSA detainee,” Shaheen says.
The ultimate decision on whether the detainees are allowed to go free lies with the Advisory Board, an executive screening committee made up of government officials, police and intelligence officials, according to Amnesty International’s 2012 report. Their deliberations aren’t open to the public.
Shaheen says that if the High Court of Jammu and Kashmir quashes the detention order, detainees are sent to the Joint Interrogation Centre in Jammu, then to Counter Intelligence Kashmir in Srinagar and then to the concerned police station.
“If authorities feel to release them, they are,” he says. “Otherwise, they are redetained.”
He says that this happened to another man whose case he is pleading, Bashir Ahmad Wani, a 29-year-old carpenter detained under the Public Safety Act in 2010 on the charge of militancy-related activities.
The High Court has quashed three successive detention orders so far against Wani, who was then sent through the various stages for release, Shaheen says. But after officials released him at the police station, they immediately rebooked him under a fake incident report, Shaheen alleges.
The anonymous police officer source rejects the allegations about police using fake incident reports to detain people or to rebook them.
“Those indulged in subservient activities or those who wage war against the state or country are detained under the act without any trial,” he says. “How can we book a person if he is already in custody?”
Shaheen says that the High Court quashed three subsequent detention orders when he was detained as well. Finally, authorities released him in April 2011 – nine months after his original detention – when Amnesty International and other human rights groups intervened.
The 2012 Amnesty International report found that detainees often successfully approach the High Court to quash their order of detention, but release is less likely.
“Jammu and Kashmir authorities consistently thwart High Courts’ orders for release by re-detaining individuals under criminal charges and/or issuing further detention orders, thereby securing their continued incarceration,” according to the report.
All Parties Hurriyat Conference-Geelani provided a list of 54 prominent leaders and members of political, social and religious organizations who have been booked under the Public Safety Act and other cases, time and again, since 2004.
Police authorities have time and again said that they are dealing with a dangerous situation during past 20 years. Public Safety Act detainees are involved in serious offenses, ranging from killing to injuring policemen to rioting.
The anonymous police officer source says that the Public Safety Act is necessary for the interest and security of state, as well as maintaining law and public order.
“With eruption of militancy in Jammu and Kashmir in 1989, 1990,” the officer says, “the state was empowered under Public Safety Act, 1978, to detain a person without trial for two years under the provisions of public order. The law is still applicable.”
Abdullah, the chief minister, promised a review of the act in 2008 once he took office. The three-member team of interlocutors appointed by the Centre in New Delhi suggested amending the act after the 2010 summer unrest that left more than 100 people dead, including teenagers.
“PSA is being used less frequently,” according to their report, filed in October 2011 and released in May 2012.
But the interlocutors concluded that the act still gave authorities sweeping powers that allowed for abuse and required amendment. They recommended reducing the period for approval of detentions from 12 to four days; outlawing detention of juveniles it; and requiring the clear communication of offenses and detention periods to detainees.
The state government amended the Public Safety Act during April 2012.
The amendment outlawed the detention of minors younger than 18. It required authorities to communicate the grounds of detention to detainees within 10 days from time of arrest in a language that he or she understands.
It also reduced the maximum detention period from two years to six months in cases of state security and from 12 months to three months in cases of public order.
But the amendment didn’t outlaw rebookings or entitle detainees to trials.
Amnesty International welcomed the amendment in its 2012 report. It stated that amendments, if applied in practice, should improve the current situation.
But it reiterated that amendments were far from adequate.
“Several provisions in PSA still don’t comply with India’s international law obligations,” the report reads. “Notably, amendments don’t even go as far as recommendations made by interlocutors in their report.”
The Amnesty International report cites detainments for years at a time, without trial and human rights protections otherwise guaranteed under Indian law. International law prohibits “torture and other cruel, inhuman and degrading treatment.”
The Amnesty International report also found that authorities often disregard requirements to provide grounds of detainment to people within 10 days of their detention and sometimes don’t provide it at all.
“Authorities in Jammu and Kashmir are still using PSA to detain individuals without charge or trial in violation of their human rights,” according to the report.
Former detainees interviewed for the report states indicated they were often not given an opportunity to be heard by the Advisory Board, which has the authority to confirm or reject detention orders.
“The only legal avenue open to families of those detained continues to be filing a Habeas Corpus petition in the High Court,” according the report. “Even this process is far from simple. Delays in hearings are a major problem.”
Amnesty International still calls for the state government to repeal the Public Safety Act and any other legislation that enables administrative detentions.
Pervez Imroz, a patron of the Jammu Kashmir Coalition of Civil Society, a human rights group in Jammu and Kashmir state, says that authorities are still using the Public Safety Act widely and that practices haven’t changed since its amendment.
“Authorities are booking and rebooking activists and stone-pelters,” he says. “Political activists have been repeatedly booked under the act and even after the act was amended.”
The state fears that if any untoward incident happens, people will take to the streets to carry out protest demonstrations as they did during the 2010 summer unrest, he says.
But data in the Amnesty International report suggests that fears are unfounded. 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. This is more than 130 times lower than the national average in India for this rate. Yet the number of people in administrative detention without trial in Jammu and Kashmir is 14 times higher than the national average.
Shaheen says that the Amnesty International report reflects the general opinion of the masses that the government should repeal the Public Safety Act. There is nothing substantial in the amendment that provides any relief to public at large. It simply reduces the period of detention.
“In terms of rights of individuals, it is useless affair because detentions under PSA are used with gross abuse by authorities to imprison a person without trial,” Shaheen says. “Its objective remains there: Detainees are actually prevented from fair trial and proper play of justice.”
Local and international demands for the act’s revocation continue, and debates involving various stakeholders take place frequently.