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A 'lawless law' stifles dissent in Kashmir

Human Rights

Indian policemen stand guard as a girl watches an anti-India protest in Srinagar, Jammu and Kashmir, India, on 7 October 2016. © REUTERS/Danish Ismail

Police in Kashmir are taking hundreds of protesters in administrative custody using the Public Safety Act, report Majid Maqbool and Wasim Khalid.

Kashmiri human rights activist Khurram Parvez has become the first prominent human rights defender to be booked under the Public Safety Act (PSA) in Indian Administered Kashmir.

The Indian police arrested Parvez under the PSA on 15 September, on charges of being an 'anti-social element known for his anti-national activities'. The police also claimed in the First Information Report against him that he had 'achieved a prominent position in separatist camps under the hidden cover of being a human rights activist'.

Parvez is the Chairperson of the Asian Federation against Involuntary Disappearances (AFAD) and the programme coordinator of Jammu and Kashmir Coalition of Civil Society (JKCCS), a prominent rights organization which documents human rights violations in the state.

The JKCCS has strongly refuted the allegations of the Indian state, terming the arrest of Parvez under the 'draconian law' as an attempt to sabotage the efforts of human rights defenders in Kashmir.

The Public Safety Act has been used far too often to lock up people without charge or trial

Founding president and patron of JKCCS Parvez Imroz said, 'he was booked under the PSA by the government to silence the voices that expose the human rights abuses committed by the Indian state in Kashmir at the international level.

'It is the first time a Human Rights defender has been booked under this draconian act. His arrest under PSA was symbolic as it sends a signal to other activists that they should behave, otherwise they too would meet the same fate,' said Imroz.

A day before his arrest in Srinagar, the summer capital of Jammu and Kashmir, Parvez was barred by the authorities from boarding a flight at New Delhi airport to Geneva, where he was going to attend the 33rd session of UN Human Rights Commission (UNHRC) to highlight the human rights violations in Kashmir.

Imroz said that both the federal and the state government had become annoyed with the human rights documentation work of Parvez which finally led to his arrest.

The Kashmir region is currently going through a phase of civil unrest after the killing of charismatic rebel commander, Burhan Wani, who died fighting Indian forces on 8 July. Thousands of people have hit the streets across the region renewing the call for freedom from the Indian rule. This was followed by shutdowns and government imposed curfews.

The location of Kashmir within India and South Asia.

In the four month long pro-independence uprising, the longest in the Kashmir region in the past several decades, about 90 people have been killed and over 14,000 have sustained injuries, some of them critical after Indian police and paramilitary force opened fire into the groups of protesters.

The police have all along maintained that its forces open fire in self defense when rocks and stones are hurled by the protesters on the streets.

The police and Central Reserve Police Force (CRPF) have come under severe criticism for using pellet gun, a type of shot-gun, against the unarmed protesters due to which, as per hospital authorities report, about 700 people have lost either one or both eyes till now.

The detention of Parvez and hundreds of other youth under the PSA, which permits that a person can be detained without a trial for at least six months, has again brought back focus on the use of this draconian law earlier termed as 'lawless law' by Amnesty International.

South Asia Director of Human Rights Watch (HRW), Meenakshi Ganguly said the PSA has been routinely misused to arbitrarily detain people for long periods in Kashmir region. 'Detention can be a short term security measure, but the PSA allows for lengthy periods in custody,' said Ganguly. 'Often, fresh orders are issued if the detention is quashed by the courts or lapses.'

The PSA allows police to take a person into preventive detention to prevent him or her from indulging in an activity which, in the opinion of state, construes threat to the security of state.

Since the start of the uprising, 450 people have been booked under the PSA, the highest number ever recorded in Kashmir according to The Indian Express. Police also arrested about 7,000 people from across the Kashmir region in a bid to end the pro-freedom protests.

According to Executive Director of South Asia Human Rights Documentation Centre (SAHRDC) Ravi Nair, over 27,000 individuals have been detained by successive governments in Jammu and Kashmir under the PSA since its promulgation in 1978.

High Court Lawyer Zaffar Shah said the law has also been used by the parties against political opponents and dissenters

Nair added that the J&K PSA, like the National Security Act elsewhere in India, is a violation of the United Nations International Covenant on Civil and Political Rights (ICCPR) of Article 9(1) of the ICCPR, which India ratified in 1979.

Aakar Patel, Executive Director of Amnesty International India confirmed the J&K Public Safety Act has been used far too often to lock up people without charge or trial. 'Its implementation is often arbitrary and abusive. The PSA’s vague and over-broad provisions facilitate a range of human rights violations in practice,' he said.

Patel said anyone who is detained by the police must be charged with recognised criminal offences and promptly tried in a court in a fair trial, or else be released. 'Not prosecuting persons suspected of committing offences also violates the rights of the victims of these offences,' he said.

The history of the PSA

The history of PSA in Kashmir dates back to 1977 when it was first slapped against the President of local Kashmir Motors Driver Association (KMDA), Ghulam Nabi. During the local assembly elections of the year 1977, Nabi contested elections on Janta Party ticket against the National Conference (NC) leader and political stalwart Sheikh Mohammad Abdullah.

Those days it was unthinkable to stand against Sheikh who was regarded as the sole representative of Kashmir, a lawyer who defended many PSA cases in the region’s High Court and studied its implementaiton to imprison dissenting politicians and youth said on condition of anonymity.

After the elections were over and NC formed the government, it introduced the Public Safety ordinance on 8 April 1978 in the assembly to visibly stem out timber smuggling in Kashmir.

The lawyer said, 'subsequently, as it was passed, the ordinance became an act. However, instead of using it against the criminals and timber traffickers, the law came to be invoked indiscriminately against the political opponents and dissenters in Kashmir.'

He said that Nabi became its first victim in the year 1978. The PSA was then revoked within a month by the then Chief Justice of J&K High Court, MM Ansari.

In 1985, former Chief Minister of Jammu and Kashmir, Ghulam Muhammad Shah, made the Act stringent by inserting section 10 (A). Due to insertion of this section, a person could be kept in detention if out of the 10 grounds just 1 proves to be correct and the incarceration could not be challenged due to its vagueness.

The maximum period of the detention under PSA is two years, the minimum being three months.

Senior Jammu and Kashmir High Court Lawyer Zaffar Shah said in the aftermath of 2010 summer uprising in Kashmir, intense criticism led to some amendments in the PSA.
Kashmir 2010 uprising – women looks on a big freedom rally in Srinagar. Image CC BY 2.0 via Kashmiri Global.

'Many minors were booked under PSA during the uprising of 2010,’ he said. ‘It led to severe criticism of the government. Later, the PSA was amended to the extent that no minor can be arrested under the PSA'.

He said that the law has also been used by the parties against political opponents and dissenters.

'The government is entitled under the law to take a person into preventive custody. However, there is difference between the law and its actual implementation in Kashmir,' said Shah, adding that the law had become the most detested act due to its misuse, besides being termed as the most undemocratic law in Kashmir.

'We have come across a number of cases where this law is being abused by the state in Kashmir.'

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