Kashmir: Detainees In Debate

   

With people making a statement by sending jailed lawmaker Engineer Rasheed to Lok Sabha, the political parties are talking big about the reforms in case of political prisoners if elected to power, reports Babra Wani.

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The family members and relatives of Sarjan Barkati staged protest at Press Colony Srinagar on July 10, 2019. KL image by Bilal Bahadur

Commotion fills the streets of Kashmir as political rallies take centre stage, punctuated by the sound of loudspeakers blasting party anthems. This surge in political activity marks a significant shift after a decade-long lull. Amidst the fervour, however, a group of political prisoners remains shrouded in uncertainty, their release hanging in the balance – and, all of a sudden everybody is talking about them.

Major political parties have acknowledged the crisis in their manifestos. One of these cases – Engineer Rasheed, a jailed politician from Langate, dominated the Lok Sabha polls and helped him get voted into the parliament. He has now been given bail by an NIA court trying him for terror funding to campaign till early October 2024.

Manifestos

The political parties have pledged to address the pressing issue. The JKNC’s manifesto specifically promises to release those detained following the August 5 decision and vows to end “arbitrary detentions” under the widely criticised Public Safety Act (PSA).

Janata Dal (United), a key ally of the BJP-led NDA government, has committed to releasing stone pelters and political prisoners. “We will review cases and facilitate the release of political prisoners and stone pelters to promote peace and reconciliation,” the JD(U) manifesto states.

The People’s Democratic Party is advocating for a political solution to the region’s problems and the revocation of laws that facilitate “unjust arrests”. “We will strive for the revocation of PSA, UAPA, and Enemy Act to put an end to the unjust arrests of political and social activists, journalists, civil society members, and concerned citizens,” the manifesto reads.

Waheed Parra, PDP’s Pulwama candidate is going to the families whose wards are behind bars telling them he knows what it means because he has spent a long time in jail and is now following the case in the court of law at huge monetary and psychological costs.

Political Prisoners

Post-2019, almost the entire political class was restricted. Three former Chief Ministers, Omar Abdullah, Farooq Abdullah, and Mehbooba Mufti, were detained under the Public Safety Act (PSA) following the abrogation of Article 370 but were later released. Now, the JKNC wishes to do away with this law.

Engineer Rasheed moved out of Tihar Jail on September 11, 2024.

While Engineer Rasheed, a three-time MLA was arrested in a terror funding case; many others are behind bars for one or the other charge. Most of them are from separatist backgrounds. Several activists of separatist outfits banned by the Ministry of Home Affairs are behind bars for a variety of reasons under different laws.

In certain cases like the banned JKF leader, Yasin Malik, the court has already announced life imprisonment in at least one case. Malik was sentenced to life imprisonment for two offences: waging war against the Government of India under Section 121 of the IPC and raising funds for sabotage under Section 17 of the UAPA. He received concurrent 10-year jail terms for criminal conspiracy, conspiracy to wage war against the Government of India, terrorism, conspiracy for terrorism, and being a member of a terror organisation. Besides, he was given five-year jail terms for unlawful acts, membership of terrorism, and support given to terrorism. Malik was fined Rs 10,65,000.

Political Prisoners?

Political prisoners are individuals imprisoned for their political actions, views, or affiliations, rather than for committing a conventional criminal offence. They are often arrested for opposing or criticising the government, advocating for political reform, or engaging in anti-establishment activities. This group includes political leaders, activists, journalists, dissidents, and, occasionally, nonviolent protesters.

Political prisoners are frequently detained under broad or ambiguous statutes, such as anti-terrorism legislation or national security regulations. In territories like Jammu and Kashmir, individuals may be held under the Public Safety Act (PSA), allowing for imprisonment without trial for extended periods.

Advocate Fizah Baba, of the Delhi High Court and its subordinate courts, categorises political prisoners into several groups. “These include activists advocating for political, social, or environmental issues; opposition leaders, such as politicians or movement leaders, who oppose the current administration; journalists, reporters, and writers exposing corruption, human rights violations, or government malfeasance; and human rights defenders advocating for civil liberties, democracy, or the protection of marginalised communities,” Baba said. “All these individuals fall under the domain of political prisoners.”

Relatives of political detainees coming out of MLA hostel Srinagar - KL Image by Tahir Bhat
Relatives of political detainees coming out of MLA hostel Srinagar – KL Image by Tahir Bhat

Not Just Numbers

A report by the Polis Project reveals that, as of August 2023, 408 individuals detained under the Public Safety Act (PSA) are being held in jails outside Jammu and Kashmir, according to a document from the region’s Home Department. The PSA grants authorities the power to detain citizens for up to two years without trial or formal charges, enabling arrest and detention without a warrant or specific charges, often leading to extended confinement without a clear time limit.

Since 2018, 1122 individuals subjected to the PSA have been relocated to prisons beyond Jammu and Kashmir – 44 in 2018, 295 in 2019, 146 in 2021, 585 in 2022, and 52 as of 1 August 2023. This relocation began after the then Governor NN Vohra eliminated Section 10 of the PSA, which had prevented authorities from moving detainees to jails outside the former state. Although the amendment faced opposition in the Supreme Court, the Kashmir administration defended their decision, citing security reasons and the need to prevent the mingling of “hardcore” insurgents with other prisoners.

A Right to Information request filed by two Kashmir University students in 2020 highlighted the issue of overcrowded jails in Jammu and Kashmir. The data showed that 4,031 prisoners were housed in fourteen jails, exceeding the designated capacity of 3,600. The National Crime Record Bureau’s 2022 data reiterated this issue, with 4,105 prisoners occupying the 14 jails, surpassing the capacity of 3,600.

Laws Concerning Political Prisoners

Political prisoners may be charged with various offences, often under the guise of maintaining public order or national security, according to Advocate Fizah Baba.

“They may face charges under anti-terrorism laws, public order laws, or defamation laws, where political prisoners are accused of defaming the government or ruling party members,” Baba said. “Governments may also accuse individuals of espionage, treason, or sedition for engaging in political activities. Receiving foreign support for political activities can lead to accusations of working against national interests.”

Baba noted that while India does not formally recognise the concept of “political prisoners” in law, individuals are frequently jailed for political purposes under various legal provisions. “These laws, although not explicitly aimed at political prisoners, are regularly used to stifle political dissent, protests, and opposition to the government.”

The Unlawful Activities (Prevention) Act (UAPA) of 1967, the Sedition Law (Section 124A of the Indian Penal Code), currently in abeyance and not part of the new Penal law, Bhartiya Nyay Sanhita (BNS), the National Security Act (NSA) of 1980, the Public Safety Act (PSA) of 1978 applicable in Jammu & Kashmir, Preventive Detention Laws, and the Armed Forces (Special Powers) Act (AFSPA) of 1958 are some of the laws that Baba said the government is using to detain politically dissenting voices.

“Indian courts have occasionally intervened to release political detainees or criticize abuses, but inconsistent implementation of legal remedies remains a concern,” Baba said while acknowledging that judicial safeguards under UAPA, PSA, and NSA aim to ensure justice, but concerns persist about misuse, prolonged pre-trial detention, and difficulty in securing bail.

Amnesty International

Amnesty International’s report on Kashmir reveals a dire human rights situation, with thousands of Kashmiris arbitrarily detained under laws lacking vital legal safeguards.

“Thousands are detained under special laws, held for months or years without charge or trial, with sweeping powers granted to security forces,” the report states.

It said the government’s efforts to address human rights violations have been insufficient, with few perpetrators brought to justice.

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