Detentions Under the Jammu and Kashmir Public Safety
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SEcurity with humAn riGhtS A ‘ lAwlESS lAw’ Detentions under the Jammu and Kashmir Public Safety Act Amnesty international is a global movement of more than 3 million supporters, members and activists in more than 150 countries and territories who campaign to end grave abuses of human rights. our vision is for every person to enjoy all the rights enshrined in the universal declaration of human rights and other international human rights standards. we are independent of any government, political ideology, economic interest or religion and are funded mainly by our membership and public donations. first published in 2011 by Amnesty international ltd peter benenson house 1 Easton Street london wc1X 0dw united kingdom © Amnesty international 2011 index: ASA 20/001/2011 English original language: English printed by Amnesty international, international Secretariat, united kingdom All rights reserved. this publication is copyright, but may be reproduced by any method without fee for advocacy, campaigning and teaching purposes, but not for resale. the copyright holders request that all such use be registered with them for impact assessment purposes. for copying in any other circumstances, or for reuse in other publications, or for translation or adaptation, prior written permission must be obtained from the publishers, and a fee may be payable. to request permission, or for any other inquiries, please contact [email protected] Cover and back phot o: Security force personnel enforcing a curfew at lal chowk in Srinagar, September 2008. © S homE basu amnesty.org CONTENTS 1. INTRODUCTION AND SUMMARY...............................................................................3 2. BACKGROUND .........................................................................................................9 2.1 Political background ............................................................................................9 2.2 Administrative detention in Jammu and Kashmir...................................................11 3. PSA VIOLATES INDIA’S INTERNATIONAL HUMAN RIGHTS LEGAL OBLIGATIONS.......15 3.1 Violations of the principle of legality ....................................................................16 3.2 Delayed and secret reasons for detention..............................................................17 3.3 No access to judicial authority ............................................................................18 3.4 Restrictions on access to legal counsel ................................................................20 3.5 Indefinite detention of foreign nationals...............................................................21 3.6 Immunity of officials from prosecution.................................................................22 4. VIOLATIONS IN THE PSA DETENTION REGIME ........................................................24 4.1 Incommunicado detention ..................................................................................25 4.2 Torture during interrogation and coerced confession ..............................................26 4.3 Detention without any legal basis ........................................................................29 4.4 Lack of information and access to Family.............................................................30 4.5 Failures of the executive detaining authority .........................................................31 4.6 Detention on vague and general ground................................................................33 4.7 Risk of fabricated grounds of detention................................................................36 4.8 Ill-treatment and conditions in prison ..................................................................38 5. DETENTION FOR POLITICAL ACTIVISM....................................................................41 5.1 Detention of political leaders ..............................................................................42 5.2 Detention of ‘stone pelters’ ................................................................................ 49 5.3 Detention of bar association lawyers.................................................................... 51 6. AN ‘INFORMAL’ CRIMINAL JUSTICE SYSTEM.......................................................... 53 6.1 PSA detention instead of criminal charge............................................................. 53 6.2 PSA detentions and criminal proceedings in parallel ............................................. 54 6.3 Continued PSA detention despite acquittal or bail ................................................ 56 6.4 Repeat and successive detention orders............................................................... 58 6.5 Revolving door detentions .................................................................................. 61 7. BARRIERS TO JUSTICE.......................................................................................... 63 7.1 The limits of habeas corpus and the High court.................................................... 63 7.2 Right to compensation....................................................................................... 65 8. CONCLUSION........................................................................................................ 67 Recommendations................................................................................................... 69 1. INTRODUCTION AND SUMMARY ‘We have to keep some people out of circulation...’ Samuel Verghese, (then) Financial Commissioner - Home, Jammu and Kashmir in a meeting with Amnesty International, Srinagar 20 May 2010 Shabir Ahmad Shah has been kept “out of circulation” and in and out of prison for much of the time since 1989, when a popular movement and armed uprising for independence began in the Indian state of Jammu and Kashmir (J&K). As the leader of the Jammu and Kashmir Democratic Freedom Party he has been amongst the most vocal and consistent voices demanding an independent Kashmir. As a result he has spent over 25 years in various prisons, much of it in “preventive” or administrative detention, that is, detention by executive order without charge or trial.1 His incarceration has been solely for peacefully expressing his political views. Shah was last released from prison on 3 November 2010 but since that time has been subject to periods of arbitrary house arrest. Photo 1: Shabir Shah being arrested by police while en-route to Sopore and Baramulla (© J&K Freedom Democratic Party) A ‘Lawless Law’ Detentions under the J&K Public Safety Act At the time of Amnesty International’s visit to Srinagar, the capital of J&K, in May 2010, Shabir Shah was in prison. Amnesty International was denied permission by the state authorities to meet with him, but was able to meet his wife Dr. Bilqees who said, “His continuing detention is a tactic to break his resistance. The government think that if they keep him away from us and make us all suffer, he will agree to remaining silent. Even though he is concerned about our daughters who rarely see their father, he will not desert his principles.” Shabir Shah is one of the most high profile of those detained under the Jammu and Kashmir Public Safety Act, 1978 (PSA) but he is only one among thousands who have been detained without charge or trial in this manner. Estimates of the number detained under the PSA over the past two decades range from 8,000-20,000. This report reveals how the PSA violates India’s international human rights legal obligations. It further provides evidence of the ways in which administrative detention under the PSA continues to be used in J&K to detain individuals for years at a time, without trial, depriving them of human rights protections otherwise applicable in Indian law. 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 region of Kashmir has been a source of dispute in South Asia for decades. But since 1989, J&K has witnessed an ongoing popular movement and armed uprising for independence. Armed groups regularly carry out attacks on security forces as well as civilians. Amnesty International acknowledges the right, indeed the duty of the state to defend and protect its population from violence. However, this must be done while respecting the human rights of all concerned. Amnesty International takes no position on the guilt or innocence of those alleged to have committed human rights abuses or recognizably criminal offences. However, everyone must be able to enjoy the full range of human rights guaranteed under national and international law. By using the PSA to incarcerate suspects without adequate evidence, India has not only gravely violated their human rights but also failed in its duty to charge and try such individuals and to punish them if found guilty in a fair trial. Over the past decade there has been a marked decrease in the overall numbers of members of armed groups operating in J&K. By the J&K Police’s own