Charged with throwing stones, youth are in detention.
SRINAGAR, INDIAN-ADMINISTERED KASHMIR – Faizan Rafiq Hakim, 14, was arrested in February on the charge of being involved with throwing stones during a protest in Indian-administered Kashmir. His family says he was innocent.
Local courts granted Faizan bail, but authorities then detained him under the Public Safety Act, PSA, which permits detention without trial for up to two years.
It took a campaign by Amnesty International, a human rights organization, to secure the release of Faizan. Although Faizan’s family produced school records that showed Faizan was 14, police said a medical test suggested he was older than 17.
After Amnesty International launched its campaign to bring awareness to the PSA here, hundreds of microbloggers tweeted angry posts to Kashmir Omar Abdullah, chief minister of Indian-administered Kashmir, via Twitter, a social networking device. Local media also took on the story until, under mounting pressure, Abdullah ordered his release.
Faizan and his family say they are now relieved and consider themselves lucky.
“I am very thankful to Amnesty International and the local media for helping my son out,” Faizan’s father, Rafiq Ahmad Hakim, told local media after his son’s release. “My son would not have been released had AI and the local media not highlighted the case.”
In the weeks since his release, a once-secretive policy of administrative detention has continued to receive increased attention from activists and media outlets alike. Research now reveals that detentions under the PSA, even successive two-year detentions, are routine in Indian-administered Kashmir. Calling the PSA a “lawless law,” Amnesty International released a report last month urging authorities to revoke it. Local lawyers have supported this request. Although one lawmaker introduced a bill to amend the act, other lawmakers say the act is here to stay.
Enacted in 1978, the PSA is a state act that aims to protect the security of Jammu and Kashmir. But according to the Amnesty International report, it allows detention under “broad and vague” grounds to keep people “out of circulation.”
Since 1989, when an anti-India armed insurgency broke out in the region, between 8,000 and 20,000 people have been detained under the act, according to the Amnesty International report. Amnesty officials say the range is broad because of conflicting figures released by the state.
Detainees include separatist political leaders and activists, suspected militants and sympathizers, and, lately, an increasing number of youth and teenagers.
In the last three years, Kashmir has seen an increase in the number of public protests. Protests often lead to stone throwing by both youth and the police, who arrest the youth and many times detain them under the PSA.
Srinagar resident Omar Hamid Hanga, 19, says police arrested him on the charges of stone pelting during the unrest last summer, when a cycle of protests and killings erupted after a police tear gas shell killed a teenager. While Hanga’s family tried to contest the police allegations, authorities booked him under the PSA and sent him to jail in Jammu.
“We were asked by local police to produce Omar for questioning on Jan. 31, but when we went there he was detained,” says his father, Abdul Hamid Hanga. “Then we met the city police chief, and he assured his release. The day we expected his release, we came to find out he is being sent to Jammu jail, and PSA has been slapped on him.”
Stories like Hanga’s spurred last month's Amnesty International report that concluded by urging the state to repeal the PSA, which it says traps detainees in a “cycle of detention.”
“The Jammu and Kashmir authorities are using PSA detentions as a revolving door to keep people they can’t or won’t convict through proper legal channels locked up and out of the way,” Sam Zarifi, Amnesty International’s Asia-Pacific director, wrote in a press release.
Those held under the PSA can face up to two years in detention. But according to the report, Kashmiri authorities consistently thwart the Jammu and Kashmir High Court’s orders for the release of improperly detained individuals by issuing successive detention orders.
Bikramjeet Batra, Amnesty International’s campaigner for India, said at a local press conference recently that the authorities also used the PSA to bypass the ordinary criminal justice system “to secure the long-term detention of individuals without trial.”
Those detained under the PSA are also denied common legal rights.
“Those being held have no access to legal representation and cannot challenge their detention in any meaningful way,” Zarifi wrote. “Once released, they cannot seek any redress or compensation for the wrongful detention they have endured and virtually never receive justice for the torture and ill-treatment.”
According to the Amnesty report, the implementation of the PSA is often arbitrary and abusive, with many being held for committing no recognizably criminal acts.
Batra said that in this way, the PSA violated the principle of legality.
“This essentially means that when there is law, what is made illegal by the [law must] be easily identifiable,” said Batra, explaining that the grounds of detention under PSA are so vague and broad that anyone could be detained under it.
Batra also criticized the courts for not acting against the authorities for violating their orders.
Amnesty has urged the state to revoke the act and resort to regular criminal laws wherever needed, insisting the PSA violates India’s international commitments to human rights. The report also asks the state to update its juvenile act, which considers boys above 16 as adults, while 18 is the age of adults in the rest of India.
Lawyers in Kashmir have also criticized the PSA.
The Jammu and Kashmir High Court Bar Association, a lawyer’s association here, has been vehemently challenging the arrests in court.
Its vocal president, Mian Qayoom, and general secretary, Ghulam Nabi Shaheen, were booked under the PSA at the peak of the 2010 summer unrest. Despite court orders and prolonged strikes by lawyers, they were not released. Qayoom was recently released, but Shaheen is still in jail.
Aijaz Ahmad, a lawyer in Srinagar, says the authorities rarely respect the court orders of release.
“They have no regard for the orders, and they put the orders in [the] dustbin and book the same person in another false FIR [First Information Report] and PSA again,” Ahmad says.
Abdullah said the Amnesty report’s suggestions would “not be thrown into [the] dustbin.” But some say that, given the state’s past record, a revocation of the policy is unlikely.
Still, even before the AI report brought an international spotlight on the issue, some local advocates were working to change the PSA policy. In 2010, lawmaker Basharat Bukhari introduced a bill in the legislative assembly to amend the PSA. He called the PSA the most misused law.
“No civilized state believing in rule of law can afford to have a provision like section 10(a) of the act, which provides that the order of detention cannot be deemed to be invalid even if the grounds of such detention are vague, nonexistent, not relevant and not connected with the person to be detained,” Bukhari said during a legislative assembly session.
But the majority disagreed, and the legislative assembly did not pass his bill.
“PSA is [a] must for running the affairs in the state,” Ali Muhammad Sagar, minister of law, said during the assembly. “It is not a joke.”
For now, many local activists see Faizan’s release as a major reprieve. But they say that scores of others, including an unconfirmed number of teenagers, continue to languish in jails.