Lawless Law

While the state government has been calling for repealing of AFSPA, it has generally evaded debates on PSA over which it has all the powers. After the Amnesty International’s damning report on the Act, the government is making the right noises, but will it make the change suggested by the watchdog.  Shahnawaz Khan reports.

Two days after international rights watchdog Amnesty International came out with a report slamming the Jammu and Kashmir Public Safety Act, Chief Minister Omar Abdullah said the report won’t be thrown into the dustbin, and the suggestions made would be looked into.

Abdullah told the state legislature that time has come for when PSA should be debated upon for its amendment or replacement by some other relatively better law.

However, given the chief minister’s past statements or assurances about revoking of AFSPA, not many would take his words seriously. Moreover, the state government’s newfound love for PSA – a number of youth, including students and minors, and separatist leaders or activists have been booked under PSA in recent months- also makes its dumping unlikely.

The Amnesty report may, however, succeed in initiating fresh debate on the Act, like the Armed Forces Special Powers Act which generally remains a part of the discourse.

In its 70-page report made after studying 600 cases of PSA in J&K, the Amnesty International describes it as a lawless law, quoting the term from the  Supreme Court’s description of administrative detentions – the amnesty report is also titled ‘A Lawless Law’. The report documents how PSA is used to secure long term detention of people without sufficient evidence for a trial.

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 report also quotes Samuel Verghese, (then) Financial Commissioner from a meeting with visiting Amnesty team in May 2010.

“We have to keep some people out of circulation,” Verghese told the team according to the report.

Verghese’s comment seems to be in tune with the government’s views about the law as reflected by Law and Parliamentary Affairs Ali Muhammad Sagar’s statement in the legislative assembly in 2010.

“PSA is a must for running the affairs in the State. It is not a joke,” Sagar said reacting to a bill introduced by PDP legislator Basharat Bukhari seeking amendments in PSA.

Bukhari had moved a private member’s bill seeking the amendment. Seeking three changes in the existing law, Bukhari termed Public Safety Act as the “most misused law” insisting that “the present turmoil and turbulence in the state owes much of its origin to the misuse, abuse and overuse of this 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 adding, “it means that a person can even be detained on nonexistent, vague, irrelevant grounds or even if the concerned person is not connected at all. A democratic set up cannot afford to have such a law”

To this Sagar retorted. “The MLA should not be angry. It is about running the affairs of the state. When PDP was in power, it never thought of amending the Act, which is necessary for running the state,” Sagar said. The bill was not passed.

As the legislative assembly is set to hear another bill seeking amendments in PSA this week, it remains to be seen if any changes – major or minor – come about or the bill meets a similar fate.

Senior CPI-M leader, MY Tarigami, has brought a private member’s Bill in the state Assembly seeking to revisit the Act and do away with its harsh clauses.

The Bill proposes that the minimum detention period of a person under the Act from 12 months to 2 years without trial should be reduced to 3 months and 6 months respectively. It also proposes that following revocation of the detention order by the High Court, the detainee shall be released forthwith and handed over to his or her family members. It also stresses that no detention order should be issued on a ground which is the subject matter of investigation or trial and that the detainee should be allowed to challenge the order within one week.

When it comes to the laws termed draconian by rights activists, the discourse in the state is generally dominated by AFSPA, more so in recent months.  PSA which is a state law, and allows for prolonged detentions under vague provisions, is discussed less.

While the demands for AFSPA removal have generally been resisted by Army and Centre, even if the request came from the state government, the state on its part hasn’t done away with the act that was in its hands.

Rights activists have long argued that PSA was a draconian law. Amnesty’s report says that not only does the act violate the principle of legality, with its vague and broad definitions, the implementation is also often arbitrary and abusive, with many of those being held having committed no recognizably criminal acts.

Many of the people detained under the PSA without charge or trial for periods of two years or more may have committed no recognizably 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.

“The cases studied by Amnesty International indicate that the authorities in J&K have used the PSA to create a parallel or ‘informal’ criminal justice system – bypassing the regular criminal justice system to secure the long-term detention without trial of individuals, depriving them of human rights protections otherwise applicable in Indian law,” the report remarks.

The PSA, it adds, violates the principle of legality by defining offences so broadly as to allow security officials to detain individuals on extremely vague grounds including for exercising their rights to peaceful assembly and freedom of expression.

“The PSA’s operative provisions are so broad and vague that they fall foul of this basic principle (legality).

“Section 8(1) (a) of the PSA, under which the majority of people are detained, allows for detention on grounds including ‘acting in any manner prejudicial to the security of the State.’ However, the PSA does not define ‘security of the State’.

“Section 8(3) (b) allows for detention for ‘acting in any manner prejudicial to the maintenance of public order,’ and lists a number of activities that fall under this definition” However, the activities mentioned in the list are so vague and broad and thus “grant the authorities sweeping powers, whilst also seriously diminishing any real possibility for detainees to contest the legality of their detention.”

The report goes on to slam the Act further for its various provisions, which include lack of access to judicial review, immunity of officials from prosecution, the scope for torture based confessions, incommunicado detentions and practice of successive detentions.

“The PSA does not allow for ordinary access to a judicial authority. Under Article 9(4) of the ICCPR, all persons deprived of their liberty, whether arrested or detained must be ‘entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful,” says the report observing that, Section 15 of the PSA provides only for the detention order to be referred within four weeks of the date of detention to an Advisory Board headed by a sitting or former judge of a High Court or a person qualified to be one.

Section 16 allows the Advisory Board another four weeks within which to provide its report to the government. There is no process of appeal against the decision of the Advisory Board. Section 16(5) of the PSA provides a bar on legal representation for the detainee. Asking the state government to repeal the law, Amnesty says the existence of the PSA violated India’s human rights obligations.

“The PSA violates international human rights law and standards by providing for detention without trial while denying the possibility of judicial review and other safeguards for those in detention required under international human rights law.”

The amnesty report makes reference to the remarks made by UN Working Groups Against Detentions (WGAD) in 2008 related to 10 PSA cases from J&K.

The WGAD ruled that 10 individuals detained under the PSA in J&K had been arbitrarily detained in violation of articles 7, 9, 10 and 11(1) of the Universal Declaration of Human Rights and Articles 9 and 14 of the ICCPR. It called on the Government of India to bring its laws in conformity with its international human rights obligations.

The Amnesty report also makes some damning revelations, like the existence of a monthly target for arrests. (See box: MONTHLY DETENTION TARGETS)

Much of what the Amnesty report says is a common knowledge in Kashmir, like the practice of successive detentions (what it calls the revolving door detentions).

“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,” said Sam Zarifi, Amnesty International’s Asia-Pacific Director after releasing the report.

Zarifi who was supposed to release the report in Srinagar could not make it as he was not granted travel permit by the Indian government. India has routinely denying travel permits to Amnesty officials. In Zarifi’s absence the report was released by Amnesty staff of Indian origin, who also have compiled the report as they did not require permits to travel to Kashmir.

On 10 March 2005, a “special security meeting” was held at the Srinagar headquarters of the Army discussing in part the issue of supporters or sympathizers of armed groups (referred to as Over Ground Workers or OGWs).

The minutes of the meeting note, “proactive action to neutralize them [OGWs] needs to be initiated”. Two Army generals who were commanding counter-insurgency forces recommended the setting of monthly targets for detaining OGW’s. The below action points were agreed upon and are excerpted from the minutes of the meeting.

“(i) Lists of OGWs to be prepared in mutual consultation between JKP [JK Police], Civil Administration and the Security Forces

(ii) Quarterly targets for OGW neutralization to be decided upon and all actions to book them to be initiated well in time.

(iv) The police and the District Magistrates must informally discuss the actions required to book the OGW targeted for the month.

(v) Dossiers on the OGWs should be prepared in advance. The requirements of booking them under PSA as well as under Section 87, 88, 107, 108, 133, 145, 151 and 512 of RPC should be deliberated and decided upon.”

A majority of those detained under the PSA are described as OGWs. Of the approximately 600 PSA cases studied by Amnesty International, 356 persons (59%) were detained as OGWs of various armed groups.

Amnesty International has been informed that similar “targets” or quotas currently remain in place.

Source: A Lawless Law: Detentions under the Jammu and Kashmir Public Safety Act (Amnesty International, 2011).

AI Recommendations
Amnesty International calls upon the Government of Jammu and Kashmir to:

Repeal the J&K Public Safety Act and any other legislation facilitating the use of administrative detentions;

Abolish the system of administrative detentions in J&K and either release or charge persons accused of committing criminal acts for recognizably criminal offences and try them in a regular court with all safeguards provided;

Implement court rulings ordering release of detainees without delay;

Immediately and unconditionally release all detainees deprived of liberty solely for the peaceful exercise of their rights of freedom of thought, conscience, religion, opinion or expression;

In the period before repealing the PSA, strengthen protection during detention by:

– Ending immediately the use of incommunicado detention;

– Ending detention in unofficial places of detention;

–  Ensuring officers carrying out the initial arrest inform the families of the place where the detainee is held;

– Ensuring all detainees are brought before a judicial magistrate within 24 hours of arrest;

– Ensuring that detainees have access to their families and legal counsel and all detainees are able to exercise their right to be examined by an independent doctor as soon as they are arrested and after each period of questioning; and monitor the quality of medical reporting;

– Ensuring that the families of those detained are informed of subsequent transfers to other places of detention, without delay;

– Maintaining a centralized register of all detainees available for public access, detailing the date of order or arrest and detention, authority issuing such orders and all transfer, release and revocation orders;

Take all necessary measures to improve prison conditions, including by: (1) ending overcrowding and providing adequate food and medical care, in accordance with theUN Standard Minimum Rules for the Treatment of Prisoners and the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; and

(2) adopting a mechanism that provides for the mandatory independent, unrestricted and unannounced monitoring of all places of detention (which include confidential interviews with any detainees of the visiting body’s choice);

Amend the J&K Juvenile Justice Act to make it compatible with the UN Convention on the Rights of the Child and implement its provisions in full.
The Governments of India and Jammu and Kashmir must further:

Carry out an independent, impartial and comprehensive investigation into all allegations of abuses against detainees and their families, including of torture and other ill-treatment, denial of visits and adequate medical care, make its findings public and hold those responsible to account;

Take all appropriate criminal or administrative measures against officials who fail to comply with safeguards against human rights abuses;

Ensure all victims of human rights violations have access to effective reparations.

Amnesty International urges the Government of India to:

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;

Ratify without reservations, and fully implement in practice the UN Convention against Torture and its optional protocols;
Withdraw its reservation to Article 9 of ICCPR.


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