One common factor among all these laws, national or state level, is that they give unchecked immunity “in acts in good faith” performed by law enforcement agencies.

Let us have a look at these outdated laws that have been used by several governments over the years, all of which violate fundamental human rights.

NATIONAL SECURITY ACT, 1980 (NSA)

Despite the NSA being a central law, it is being increasingly used by states to detain individuals. Its misuse has even been brought into question by the Supreme Court. In recent times, the apex court expressed shock that NSA was invoked against Samajwadi Party leader Yusuf Malik in a revenue recovery case without application of mind. In another case, NSA was invoked by Tamil Nadu against a YouTuber from Bihar who was arrested for spreading fake videos of attacks on migrant worker and the apex court questioned this decision as well.

• Under the NSA, a person is detained to prevent him or her from acting in any manner prejudicial to “the security of the state” or for “maintenance of public order” or “to the maintenance of supplies and services essential to the community”
• Such authority to detain lies, apart from the Central and state government, with the District Magistrate or a Commissioner of Police; thus allowing detention on a mere administrative order.
• Such Order of Detention can be issued for a period of three months at a time and the administrative order has to be approved by the state government within 12 days of issue, for it to remain operative for 3 months.
• Section 5A of the NSA states that if detention is made on multiple grounds, then the order will be deemed to have been made separately for each ground. This means that even if all but one ground is held by the Court to be vague or invalid, even that one ground would still remain and the detention order sustained.
• The grounds of detention are to be communicated to the detainee within five days or latest within 15 days in exceptional circumstances.
• The detention order is to be placed before Advisory Board within three weeks whereby it shall consider the grounds and the detainee’s representation.
• Once confirmed by the Board, the person can be detained up to one year. Once this period expires, the person can be detained once again without any fresh facts, for another period of one year.
• Under section 14A, the detention order can be extended beyond three months, without the Board’s confirmation, for up to six months if the person is detained to prevent him in any “disturbed area” from interfering with efforts of Government in coping with the terrorist and disruptive activities as also from acting in manner prejudicial to defence, security of the nation and state, maintenance of public order or maintenance of supplies and services essential to the community
• Delhi Lieutenant Governor Anil Baijal had authorised the Delhi Commissioner of Police to detain people under the National Security Act till October 18, 2021 amid the farmers’ protest and then upcoming Independence Day celebrations.
• Dalit leader Chandrashekhar Azad had been detained by the Yogi Adityanath led UP govt in November 2017 for his alleged involvement in violence over installation of Dr Babasaheb Ambedkar’s statue in Sharanpur in May that year. One year later, Azad was released from detention after this decision was challenged before Supreme Court.

JAMMU AND KASHMIR PUBLIC SAFETY ACT, 1978 (PSA)

• The law was brought in by the state’s first chief minister, Shaikh Abdullah in 1978 to prevent timber smuggling (and detain smugglers in prison) allows the state to detain persons up to two years without trial.
• Its provisions are similar to NSA but was enacted two years before the national law.
• Under section 3 and 4, the government has power to declare any place or area as prohibited or protected vide a notified order and any person, even unaware of such a notified status of the place can be imprisoned for contravention.
• Under section 6, the Government may deem any document to be detrimental to communal, sectarian or regional harmony or even public order and can prevent its circulation within the State.
• Under section 8, a person can be detained if he/she is deemed to be prejudicial to public order.­
• The reference to the Advisory Board, about the detention order, is to be made within 4 weeks and once confirmed by the Board, the person can be detained for up to 2 years
• Section 19 grants the Government the power to re-issue a detention order on basis of same facts.
• A report published by Amnesty International states that in a written reply to the Legislative Assembly of Jammu and Kashmir in January 2017, the then-Chief Minister Mehbooba Mufti stated that from 2007 to 2016, over 2400 PSA detention orders were passed, of which about 58% were quashed by courts.
• The PSA was indiscriminately used in the erstwhile state after August 5, 2019 to detain political leaders after Article 370 was abrogated by the Parliament.
• A detailed analysis of the Act may be read here.

THE ARMED FORCES (SPECIAL POWER) ACT, 1958 (AFSPA)

• AFSPA gives the armed forces the power to maintain public order in “disturbed areas”
• It was passed to curb increasing violence in north-east states in 1950s
• The law gives a free hand to armed forces to maintain law and order in these disturbed areas declared so from time to time by the Ministry of Home Affairs.
• The armed forces may use force or fire at anyone found contravening the law (for instance violating the curfew or assembling in larger numbers). They may also detain a person without warrant and search any place without warrant
• AFSPA was revoked in Meghalaya as of April 1, 2018 and in Tripura in 2015
• Under section 6 of the Act, no prosecution, suit or other legal proceeding shall lie against any person in respect of anything done or purported to be done in exercise of the powers conferred under AFSPA; thus giving complete impunity to armed forces.

Arunachal Pradesh

• As of April 1, 2021 up until September 30, 2021 districts of Tirap, Changlang and Longding as well as (i) Namsai and Mahadevpur police stations in Namsai district; (ii) Roing police station in Lower Dibang Valley district; (iii) Sunpura police station in Lohit district have been declared as disturbed areas as per section 3 of AFSPA

Manipur

• As of December 1, 2020 the entire state of Manipur, except Imphal municipal area has been declared as disturbed area for a period of one year i.e. until December 1, 2021

Assam

• On February 22, 2021 the entire state of Assam was declared as a disturbed area for 6 months citing the state Assembly elections and the activities of extremist outfits like ULFA(I).

Nagaland

On June 30, 2021 the application of AFSPA to the entire state was extended for another 6 months

MAHARASHTRA CONTROL OF ORGANISED CRIME ACT (1999),

• Organized crime is a grouping of highly centralized enterprises run by Criminals who tend to engage in illegal activity. Unlawful activities like terrorism, theft, prostitution, robbery, drug trafficking, human trafficking, forced labour which are practiced collectively by group of people are called as organized crimes.
• Section 2(e) defines ‘Organised Crime’ which means “any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency”.
• Under section 3 there exists presumption of offence if unlawful arms and other material including documents and papers were recovered from the possession of the accused that were used in the commission of the crime and also if finger prints were found at the crime scene.
• Presumption of offence means the court shall presume the accused to be guilty unless the contrary is proved, thus putting the onus of proving himself innocent upon the accused.
• The investigating authority has special powers like intercepting wire and oral communication in the process of investigation.
• Further, under section 18 confessions made by the accused before the Superintendent of Police or higher rank police official as accepted as evidence in trial.
• The offences under the Act includes conspiring, attempting to commit or abetting organized crime or harbouring member of organized crime or being a member of such syndicate.
• Under section 21(2) if investigation is not completed within 90 days, the period can be extended by application to the special court up to 180 days.
• Under sub-section 5 of section 21, bail is to be denied if the accused was on bail in an offence under this Act, or under any other Act, on the date of the offence in question. Bail can only be granted if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the crime and is not likely to commit any offence while on bail.
• MCOCA was passed to curb such activities of “gangs” that were part the “underworld” in Mumbai.
• In March 2003, the Bombay High Court had struck down as illegal the powers under MCOCA to intercept communications. However, these powers under section 13 to 16 were upheld by the Supreme Court in 2008.
• In 2002, the application of MCOCA was extended to Delhi as well.

KARNATAKA CONTROL OF ORGANISED CRIME ACT, 2000 (KCOCA)

• The KCOCA was modelled on MCOCA and was legislated during the tenure of a Congress government in 2001.
• In 2009, KCOCA was proposed to be amended bringing terrorism within its purview with a maximum punishment of death. If the investigation is not completed within 180 days, the Court is authorized to extend the period up to 365 days, which means an accused can be detained for a year without filing of chargesheet.
• Under the proposed amendment Organized crime has been defined expansively to also include ‘terrorist act’ apart from ‘any continuing unlawful activity’. A terrorist act includes within its definition, acts committed with the intent to ‘disturb law and order’ or ‘public order’.
• The proposed amendment, empowered courts to attach the properties of terror suspects and there is a provision for a fine of Rs 10 lakh for terrorist acts. Also, terror suspects can be in police custody for a maximum of one month and in judicial custody for 180 days.
• However, the amended law has not received the President’s assent and thus these 2009 amendments do not stand. The following provisions, however, are part of the main Act as it is operational in present day.
• The investigating authority has special powers, under section 14, like intercepting wire and oral communication in the process of investigation.
• The police officer also can seek an order from the competing authority directing a cellular phone operator to de-activate any mobile phone and delink the calls from or to any mobile phone reasonably suspected of being used for any criminal act or conspiracy.
• Further, under section 19, confessions made by the accused before the Superintendent of Police or higher rank police official as accepted as evidence in trial.
• If a person is convicted under the Act, the court is empowered to declare that any movable or immovable property belonging to him be forfeited to the state government.
• Under sub-section 5 of section 22, bail is to be denied if the accused was on bail in an offence under this Act, or under any other Act, on the date of the offence in question. Bail can only be granted if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the crime and is not likely to commit any offence while on bail.
• Under section 23 there exists presumption of offence if unlawful arms and other material including documents and papers were recovered from the possession of the accused that were used in the commission of the crime and also if finger prints were found at the crime scene.

CHHATTISGARH SPECIAL PUBLIC SECURITY ACT (2005)

• Under the Chhattisgarh Special Public Security Act (CSPSA), 2005, or the Chhattisgarh Vishesh Jan Suraksha Adhiniyam, “unlawful activities” include posing a danger to public order, peace or tranquility in society, posing an obstacle to maintenance of public order, interfering with administration of law and encouraging the disobedience of law among others.
• The Act borrows heavily from UAPA in its formation of Advisory Board, declaring organizations as unlawful, penalising membership of unlawful organization and so on.
• The government is also empowered to forfeit funds of such organization and District magistrate (DM) is empowered to take possession of places used for unlawful activities.
• The decision of the DM and/or state government in matters under the Act is final and cannot be appealed against, saving writ jurisdiction of the high courts and Supreme Court.

GUJARAT CONTROL OF TERRORISM & ORGANISED CRIME ACT, 2019 (GCTOCA)

• The law received the President’s Assent 16 years after it was first introduced in the state assembly. Three Presidents before Ram Nath Kovind had returned the bill to the state
• While the law borrows significantly from MCOCA, what it misses out on is the checks on interception of communication. Also, the definition of “terrorist act” also includes “an act committed with the intention to disturb law and order or public order or threaten the unity, integrity and security of the state”.
• Economic offences include ponzi schemes, extortion, land grabbing, contract killings, cybercrimes, human trafficking, and multi-level marketing schemes and organised betting.
• MCOCA has 5 sections dealing with interception of communication having checks like application for extension of period beyond 60 days must include a statement of the results of the interception thus far or officer above SP level is required to supervise the investigation.
• GCTOCA deals with the admissibility of evidence collected through interception, and does not mention the procedure for intercepting communication.
• under section 16, confessions made by the accused before the Superintendent of Police or higher rank police official as accepted as evidence in trial.
• Under Section 18, if a person is convicted under the Act, the court is empowered to declare that any movable or immovable property belonging to him be forfeited to the state government. Further, is any property is suspected to be proceeds of terrorist act or organized crime, the police can have it seized once confirmed by the Special Court.
• Under section 20(2) if investigation is not completed within 90 days, the period can be extended by application to the special court up to 180 days.
• Bail can only be granted if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the crime and is not likely to commit any offence while on bail. Bail is to be denied if the accused was on bail in an offence under this Act, or under any other Act, on the date of the offence in question.
• Under section 21 there exists presumption of offence if unlawful arms and other material including documents and papers were recovered from the possession of the accused that were used in the commission of the crime and also if finger prints were found at the crime scene

THE PREVENTION OF ANTI-SOCIAL ACTIVITIES, 1985 (PASA)

• The ‘definition’ of offenders who can be charged under this law are vague and easily prone to misuse. The definitions include “cruel person” “dangerous person”, “property grabber”, “unauthorised structure” among many others.
• A “cruel person” means a person, who either by himself or as a member or leader of a gang, commits an offence punishable under section 8 of the Bombay Animal Preservation Act, 1954.
• A “dangerous person” means a person, who either by himself or as a member or leader of a gang, habitually commits, any of the offences punishable under Chapter XVI (offences affecting human body) or Chapter XVII (offences against property) of the Indian Penal Code or any of the offences punishable under chapter V of the Arms Act, 1959.
• Section 3 of the Act gives the government the power to issue a detention order against any person for preventing them from acting in “any manner prejudicial to the maintenance of public order”.
• public order is deemed to be affected if any activities of the offenders is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general publicor any section thereof, or if (there is) a grave or widespread danger to fife, property or public health.
• Under section 5, the law provides for place and conditions of detention which means a detainee can be kept under prolonged detention so as to maintenance, discipline and punishment for breaches of discipline, as may be specified in the order.
• Section 6 states that if detention is made on multiple grounds, then the order will be deemed to have been made separately for each ground. This means that even if all but one ground is held by the court to be vague or invalid, the one ground would still remain and the detention order sustained.
• In case a person against whom a detention order has been made “is believed” to have absconded or is concealing himself, the concerned authority is empowered to attach or sell his property within the State.
• The detaining authority has up to 7 days to communicate the grounds of detention to a detainee, from the date of detention order and if any of these are facts that are against the “public interest”, then they may not be disclosed.
• The Advisory board hears the detainee without legal representation and decides a within 7 weeks whether the detention is confirmed. The Board is empowered to confirm detention for a maximum period of one year.
• The amendment Bill of 2020 brought cyber offences also under its ambit which meant any person committing offences described under the Information Technology Act can be detained under PASA.
• It also now includes sexual offenders which could mean anyone who commits sexual offences as defined under the Indian Penal Code.

Related:

J & K’s PSA Law: How Draconian is Draconian?

SC OBSERVES PREVENTIVE DETENTION LAWS TO HAVE A COLONIAL LEGACY WITH A HIGH POTENTIAL FOR ABUSE AND MISUSE

LAW ON ARREST AND DETENTION: KNOW YOUR RIGHTS!

DEMOCRACY CAN NEVER BE A POLICE STATE: SUPREME COURT

The post Beyond UAPA: Examining other central and state laws granting vast powers to Govt appeared first on SabrangIndia.

Illustration by Suhail Naqshbandi/ http://www.kashmirink.in
 
On October 10, 2019, The Indian Express reported that the Jammu and Kashmir government informed the J & K High Court that it has revoked the detention orders in response to habeas corpus petitions filed by 3 persons detained under the Jammu and Kashmir Public Safety Act (PSA).

What is the PSA, its genesis and intent? Why has it been called draconian? The law brought in ironically by the state’s first chief minister and premier, Shaikh Abdullah in 1978 to prevent timber smuggling (and detain smugglers in prison) allows the state to detain persons up to two years without trial. Similar to the central National Security Act (NSA ) but was enacted two years before the national law.

Conflicting reports also suggest that former chief minister of the state, Farooq Abdullah has also been booked under the Act since September 16, 2019. While the union home minister Amit Shad first claimed that Abdullah was free, the former chief minister publicly contradicted this statement.
In late August 2019, former IAS officer and founder of the Jammu & Kashmir People’s movement, Shah Faesal was detained at Delhi airport, prevented from flying abroad and slapped with the PSA. He is still under detention. Earlier in 2019, in the wake of the Pulwama “attack” in February, scores of detainees were slapped with the law and J & K governor even approved an amendment to the law to move detainees to jails outside the state. Keeping detainees away from their home and hearth further alienates populations and causes further hardships to family members and relatives.

JKLF leader, Yasin Malik and Hurriyat leaders like Masarat Alam have also been detained under PSA. Ironically, National Conference vice president and son of Dr Abdullah, Omar Abdullah had promised to appeal this controversial law if he came back to power in the state. But this assurance comes 31 years after the controversial law has been enacted.

The J & K High Court merely disposed of the petitions since the petitions did not survive post the revocation of the detention orders. While two of these petitions challenged the orders under section 8 of the Act (which means they were detained for actions prejudicial to public order or security), the third petition challenged the order under section 22 of the Act (which means the petition challenged that the government acted in good faith while making the order). There are about 250 habeas corpus petitions lodged with the J & K High Court presently and a majority of them are filed against detention orders under the PSA.

How does PSA work?
In the following segment we have done a brief section wise review of the Act in order to understand the implications of the Act and to understand why it has been termed as a “draconian law”.

A Review of the Jammu and Kashmir Public Safety Act (PSA)
The objective of the Act is stated as:
“Whereas it is necessary in the interest of the security of the State and public order to make law providing for measures hereinafter appearing”
The Act is short and precise containing merely 24 sections and majority of these are imperative to “achieve the goals”under the Act. The most critical ones have been reproduced below in order to understand the kind of powers that lie with the government and its agencies without due accountability. The implications of the law and its provisions have also been analysed.
 

 
*Only relevant sub-sections have been mentioned. AccessComplete Act here.
 
Purpose of the Act and Apparent Intention of the Legislature
The Act was enacted by the Sheikh Abdullah lead government in 1978 and has, since then been a subject of contention. A report published by Amnesty International states that in a written reply to the Legislative Assembly of Jammu and Kashmir in January 2017, the then-Chief Minister Mehbooba Mufti stated that from 2007 to 2016, over 2400 PSA detention orders were passed, of which about 58% were quashed by courts.

There are several inferences that can be made about the intention of the legislature in passing the law and the kind of powers granted to the government. The Act allows detention of persons without trial or forming of charges. It allows the government to detain a person for as long as 4 weeks without having to produce them before an authority, in this case, an Advisory Board. The law provides very superficial means of redressal for the detenu and it is clear that the legislators intended to subdue to the detenu to a point where he could resort to legal proceedings only after a considerable period of time has passed, after facing the Advisory Board.

The detenu is also not permitted to engage a legal representation before the Advisory Board. The Act provides that the detenu be informed about the grounds of detention at the earliest, within 5 days or maximum 10 days of date of detention, but it also provides that reasons which are “against public interest” may not be disclosed. This gives the government an opportunity to state all grounds to be against public interest thus giving the detenu no defence in front of the Advisory Board.

Even the report of the Advisory Board is kept confidential and not disclosed to the detenu, except the part where the opinion of the Advisory board i.e. whether the order of detention is confirmed or rejected is communicated to the detenu.
 
The Law in action
The government has unabashedly used the PSA to curb activities of many prominent personalities at various occasions in the past. The Hindu reported that in August this year, former IAS officer and founder of Jammu & Kashmir People’s movement Shah Faesal was stopped from flying out of the country from the Delhi Airport and sent back to Srinagar, where he was detained under the PSA. In the wake of the Pulwama attack, scores of detainees were slapped with this law, and J&K Governor Satya Pal Malik had approved an amendment to move detainees to jails outside the State.

The Scroll recently reported that the J & K government had been acting in contravention of the PSA by detaining boys under the age of 18. As per the 2012 amendment of the Act, “person” shall not include a citizen of India who has not attained the age of eighteen years for being detained under clauses (a) and (a-1) of section 8. Yet, such detentions have taken place in the Valley ever since its lockdown imposed by the Central government. Despite of such actions of the government, which warranted quashing of the detention order of minors, the High Court only ordered a probe.

It is evident from the review of the Act as well as real incidents that the law has given the J & K government unprecedented powers of preventive detention of individuals thus allowing capricious behaviour in execution and institution of orders. Many a times in the past political parties have promised to repeal the Act if voted to power but none have accomplished the same.

As one reads section after section of the Act, it becomes evident that the intention of the legislature in formulating this law was to give unbridled powers to the state government for detention of any person under the guise of maintenance of public order and acting in interest of national security, both of which have myriad interpretations; thus leaving the detenu with no recourse to legal remedy for a considerable amount of time.

The post How I can be detained for two years without trial under Jammu & Kashmir’s ‘Public Safety Act’ appeared first on SabrangIndia.

Image: The Indian Express

According to an Indian Express report, the UN group has conveyed its concerns about Parvez, who was stopped from going to Geneva to participate in the 33^rd session of UN Human Rights Council. His arrest followed a day after, on September 16, according to news reports.

The experts include Michel Forst, the UN Special Rapporteur on the situation of human rights defenders; Setondji Adjovi, the Chair-Rapporteur of the UN Working Group on Arbitrary Detention; Maina Kiai, the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association and David Kaye, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, according to the Express report.

“The UN experts conveyed their concerns to the Government of India, but the official information received so far does not provide clear details on the exact nature of the charges against Parvez, which seem to rely mainly on vague accusations of alleged ‘anti-India’ activities, aimed at disrupting the public order,” they said, as reported by the Indian Express. “We are concerned at the use of the Jammu and Kashmir Public Safety Act against Parvez, which permits administrative detention without judicial intervention for up to two years.”

It was also reported earlier by The Indian express that during the 100 days of ongoing curfew, at least 434 have been detained by the state government under the controversial PSA.
 
For the full report, click here.

Related story: Free Khurram Parvez: An Open Letter to Civil Society

The post UN experts demand Release of Human Rights Activist Khurram Parvez appeared first on SabrangIndia.

A report of the Independent People’s Tribunal on Human Rights Violations in Kashmir reveals the extent of deprivation of basic human rights and the depth of alienation felt by the Kashmiri people. Excerpts from the report:

Aims

There is a general perception that the human rights situation in Jammu and Kashmir is bad and largely unaddressed. The various official human rights mechanisms, including the judiciary and the State Human Rights Commission, are unable to act proactively and rein in human rights violators, including the army, paramilitary forces, police and surrendered militants. In this context, it was felt that a civil society initiative, including retired members of the judiciary, was imperative to clarify the situation and the reasons for the continued deaths and suffering.

The practice of human rights abuse is protected, if not encouraged, by legislation like the Armed Forces (Special Powers) Act, the Jammu and Kashmir Public Safety Act and the Disturbed Areas Act – where security forces are given sweeping powers to shoot, kill, arrest and detain along with blanket immunity from prosecution for such heinous acts. These powers are in complete disregard of the most fundamental postulates of international law enshrined in the UDHR (Universal Declaration of Human Rights 1948), the ICCPR (International Covenant on Civil and Political Rights), the ICESCR (International Covenant on Economic, Social and Cultural Rights), the UNCAT (UN Convention Against Torture) and the UN Convention on the Elimination of Enforced Disappearances, among others. The latter two have been signed but not ratified by India.

Keeping in view the basic principles of human rights as enshrined under the Constitution of India and various international covenants, and in order to highlight the forms and extent of human rights abuse suffered by civilians in Kashmir, the Human Rights Law Network, in collaboration with ANHAD, organised an Independent People’s Tribunal on February 20 and 21, 2010 at Srinagar, Kashmir.

The tribunal was organised with an aim to provide a platform to the victims of the ongoing armed conflict. The tribunal witnessed testimonies from all sections of Kashmiri society, including victims, their family members, social activists, journalists and academicians. In all, 37 testimonies came to be recorded during the two-day-long tribunal. Victims and their family members narrated their stories of suffering which they have experienced for the past two decades. The idea behind conducting such an event was to highlight the sufferings of all such victims and to formulate certain suggestions/ recommendations in order to minimise the use of force against the common man in the name of national security by the security agencies.

Summary

The tribunal heard testimonies from about 37 victims and their kin and we have also had testimonies/statements from journalists and members of civil society.

It is clear that there is a sense of suffering and injustice writ large on the faces of everyone who made their statements before the tribunal. We had made it clear that we are not in any way linked with the official institutions or authority and yet so many of them gave vent to their feelings in their physical and emotional state, which only strengthens our opinion that there is substantial truth in those allegations.

It cannot be gainsaid that the Armed Forces (Special Powers) Act 1958 has been in force for nearly two decades in this state. This act has been misused and is being misused wherever it is made applicable (Manipur, for example). Therefore if we take this situation into account, this draconian law has undoubtedly facilitated grave human rights abuses including “disappearances” by the very nature of the power bestowed on the armed forces.

Any abuse of powers by the armed forces is a criminal offence. It should promptly be investigated by an agency independent of the armed forces, followed by impartial prosecution. The testimonies of all witnesses clearly establish that there has been no satisfactory investigation by any agency or authority in the state, leave alone any prosecution. On the other hand, we get an impression that all institutions of the state, the executive, the legislature, the human rights commission and to a certain extent even the judiciary have failed to do justice to the victims of “disappearances” and other human rights violations.

The United Nations General Assembly in 2006 has unanimously adopted the International Convention for the Protection of All Persons from Enforced Disappearance. Earlier, there was the UN declaration to the above effect (December 1992). Article 2 of the declaration says that, “the prohibition” of “disappearances” is absolute and no state can find an excuse. Article 7 says: “no circumstances, whether a threat of war, internal political instability or any other public emergency, may be invoked to justify” these acts of violation. Hence it is not open to the state to resort to enforced disappearances, which would include all custodial deaths, on the ground of any threat to internal security or external safety and stability. It is here the state’s liability becomes absolute and we should have no hesitation in making these observations.

We have the testimony of Ms Parveena Ahangar, who is the chairperson of the Association of Parents of Disappeared Persons (APDP), which clearly establishes that 8-10,000 persons have disappeared from about 1989. Incidentally, we may point out that during the period 1984-1994, during the agitation for Khalistan in Punjab, there had been similar disappearances and recently a report based on the State’s Human Rights Commission shows that over 2,059 bodies were identified in Amritsar district and still over 1,000 bodies are lying there in the district and there are a large number of skeletons in other districts. Moreover, internationally, disappearances and “custodial deaths” fall within the definition of “torture”. Prohibition of torture and ill treatment is underlined by its non-derogable status in human rights laws. No state can justify such an act.

General findings

1. Various instances of the security forces’ crimes have been brought to our notice. These are violations against the Geneva Conventions (Common Articles 2/3), the International Covenant on Civil and Political Rights, the Indian Penal Code and the civil law of the country. The police/paramilitary and surrendered militants have flouted Indian laws and the rules of war. As a consequence, large numbers of civilians have died, including women and children. Women, including young girls, have been harassed, raped and gang-raped and children in their early teens shot.
2. The judicial machinery has barely functioned. Despite the stern report of the Bijbehara magisterial inquiry, recommending the severest action against the BSF (Border Security Force) officers and jawans, nothing was done. A number of cases filed in the district and high courts have been pending for years and there are numerous cases of lack of judicial action taken in terms of awarding compensation and instructing the security forces to produce the disappeared and so forth.The tribunal heard repeated examples of FIRs (first information reports) filed by the families that were distorted by the police to accuse the victims. Counter-FIRs have also been lodged by the police… Under the pretext of translating FIRs from Urdu into English, the police have completely distorted the complaints made in the original FIR. One such case with evidence was produced before the Independent People’s Tribunal.
3. The State Human Rights Commission has no power to investigate paramilitary and military excesses though it does have the power to request investigation reports of the inquiry by the paramilitary and the military forces. The SHRC seems to have failed to exercise its powers proactively to provide justice to the victims. The general trend is that the state as well as the central government ignores the recommendations made by this commission.
4. Rape: The worst case of mass rape was heard by the women jurists from the testimonies of women from Kunan Poshpora, who talked about the night of February 23, 1991 when the army came to their village, isolated the men and gang-raped at least 23 women of all ages from 14 to even a 100-year-old woman. The rape took place in front of their young children. There was brutal impact on their bodies and since then, they have suffered physical and mental trauma for years. They have been socially discriminated and ostracised, landing them into a traumatic state of mind that has been permanent. This is the grossest of human rights violations.
5. Throughout the conflict people have been maimed and disabled due to the indiscriminate firing by security forces during even non-violent protests. People have also been disabled during interrogations where torture was used. We heard the testimonies from Bijbehara where forces had indiscriminately opened fire on peaceful demonstrators in 1993. Many injured persons have been disabled for life and have suffered mentally, physically and financially. Hardly any steps have been taken for their rehabilitation.

The testimonies we heard from disabled persons revealed that they were totally shocked and shattered. The disabled deposed before us to say that they could bear with the aftermath of physical injury but not with the mental pain, agony and trauma that make them feel that they die several deaths every day rather than living even once…

Custodial killings

There have been a large number of custodial killings since the conflict began. The pattern in most cases is similar even though the perpetrators may be from different forces serving the Indian state. The cases cited represent the dominant form of this method of violation of human rights. We are citing illustrative testimonies of victims, relatives of victims and others with first-hand information to illustrate our findings.

Testimonies

Masooda Parveen, representing the late Advocate Ghulam Mohiddin Regoo

District: Pulwama

“I am a mother of two. At the time of the incident my husband was a practising lawyer. On February 1, 1998, at around 9 o’clock, my husband had just returned from the mosque after offering the last prayer of the day. Two renegade militants – Bashir Ahmad and Abdul Khaliq – entered our house. Bashir’s face was partially covered with a handkerchief. He caught hold of my husband’s collar and alleged that a militant – Arshid Ahmad Ganaie – was hiding in our house. In fact, Arshid was already in their custody, in a car parked outside our house. The two people took my husband with them and a few days later his mauled dead body was returned to us. Major Poniyal of the Jat Regiment stationed at Laidpora, Pulwama, was involved in bringing all of this about. At the time of handing his body over to me they also gave me the relevant documents and the copy of the FIR.

“I approached the government authorities in order that the culprits are brought to book but to no avail. The district administration had offered me a job but later declined to acknowledge they had ever done that. When I contacted the local MLA regarding the matter, he avoided me. I approached the then chief minister, Mr Farooq Abdullah, but he shooed me away, stating that I was the wife of a ‘traitor’. My son, who is an agriculture graduate, has been constantly denied a passport by the state. I myself wanted to take the case of my husband’s gruesome murder to a UN body but was also denied a passport. I am now contesting my case in the Supreme Court with the hope that we get justice and my sons can travel abroad for their advanced studies. When the Supreme Court called for the records of our case from the police, they stated that they had lost the file. In the meantime, our harassment by the state continues as has been the case since my husband’s brutal murder.”

Gh Qadir Pandit

The case of Gh Qadir Pandit is a striking instance of the state of the judiciary and police. Even after the sessions court concluded the “custodial death”, which was reported to the Jammu and Kashmir high court, the high court directed the concerned sessions court to start investigations after three years of their filing the case. The police refused to file an FIR on the ground of jurisdictional ambiguity. The victim’s family then filed an application in the high court seeking directions to specify the police station under whose jurisdiction the case fell but no orders were passed. Mr Pandit’s brother’s comment that he was “…so disillusioned with the justice delivery system in Kashmir that I thought it best not to follow up on the case any further” sums up a common criticism of the judicial system, the SHRC and the police.

Gh Qadir Teli

Gh Qadir Teli, whose son was a victim, was himself severely tortured and stripped naked by the 21 RR (21 Rashtriya Rifles). He also filed petitions in the Jammu and Kashmir high court and SHRC about his missing son but nothing concrete happened.

“My son was a 17-year-old school dropout and had started working on our farm. He had three elder sisters and was the only substantial source of income for our family. I got him married in 2006, in district Baramulla. On the fateful day of November 25, 2006 he was not feeling well and had gone to see a doctor, Dr Habibullah Mattoo, in Sopore. While he had been waiting for his turn at the clinic, a fellow villager had called him on his mobile phone, which is when he had confirmed his location. At around 1 o’clock in the afternoon I saw a huge crowd outside my house. Some people standing close by advised me against going home at that time, as there the army had raided my house and were searching it. Disturbed by the gravity of the situation, I thought of calling my son. I went to a phone booth to make the call but his cellphone was switched off.

“During this time the rest of my family inside the house was being harassed by the army. Finally, I reached home at around 9:30 in the evening but my son was nowhere to be seen. For the next three days there was no news of him. I registered a missing report at the police station on December 8, 2006. However, the army – led by some DSP (deputy superintendent of police) Tickoo – raided my house soon after and asked for the original copy of the report, which I had to hand him out of fear. Fortunately enough, I had already made photocopies. I then returned to the concerned police station and lodged a fresh complaint.

“A few days following this the army came looking for me but somehow I managed to get away. But on another occasion the 21 RR raided my house again and took me into custody. They then took me to Handwara where I was severely tortured while being stripped naked. You can imagine what I might have gone through considering it was the body of an old man they were inflicting inhuman treatment on. They were trying to coerce me to accept that my son was a militant and that I had ammunition in my possession but I didn’t succumb. When they released me, I filed an application with the district magistrate reiterating that I had been subjected to illegal detention and torture and that the whereabouts of my son were unknown. I also filed petitions in the Jammu and Kashmir high court and the SHRC but nothing has come out of them.”

Enforced disappearance

One of the most harrowing consequences of the armed conflict in Kashmir is that people in detention go missing. The majority of missing persons are men, which leaves a large number of women awaiting news that would decide their fate, living lives of half-widows. A state like this results in a severe identity crisis amongst the women – with the immense agony of not being sure whether they are still married or widowed.

Enforced disappearances in Kashmir started in 1989 following the outbreak of armed conflict. The state has seen heavy deployment of security forces (more than 6,00,000 – the highest number of army personnel during peacetime anywhere in the world) since.

In international human rights law, disappearances at the hands of the state have been codified as enforced or forced disappearances. The Rome Statute establishing the International Criminal Court defines enforced disappearance as a crime against humanity. However, the police do not entertain missing reports with regard to these persons.

The Association of Parents of Disappeared Persons, an organisation founded by concerned persons in Kashmir, has been demanding the whereabouts of people who have been subjected to enforced custodial disappearance by various security agencies, troops and police – mostly since the break out of armed rebellion in 1988. Even though the association continues to highlight their sufferings and their demands, their genuine pleas and grievances are yet to strike the conscience of the so-called elected representatives of the people.

According to the International Convention on Enforced Disappearances, no exceptional circumstances whatsoever – whether a state of war, a threat of war, internal political instability or any other public emergency – may be invoked as a justification for enforced disappearance and the state is under an obligation to investigate acts of enforced disappearance.

Testimonies

Zahoor Ahmad Mir, representing Ali Mohd Mir

District: Srinagar

“My father, namely Ali Muhammad, was killed by Ghulam Ahmad alias Papa Kishtwari on June 26, 1996. I filed a case in the high court in the year 2006. I also filed a case in the SHRC in the year 2007. After I got the case registered, it pressurised the police and only then could I get an FIR lodged against Papa Kishtwari in the concerned police station. Papa Kishtwari is a surrendered militant and is now a government-sponsored person. He even won uncontested elections. Papa Kishtwari is believed to have committed 150 murders but only 26 are registered against him. His accomplices have been left free. I want my father’s dead body. Papa Kishtwari is in jail because of me but he is not being punished. I want justice.”

Abdul Rashid Beigh, representing Fayaz Ahmad Beigh

District: Srinagar

“My son, namely Fayaz Ahmad Beigh, was working as a photographer in the department of Central Asian studies at the University of Kashmir. He was arrested during his duty hours by HR Parihar, SP (superintendent of police), STF (Special Task Force), at Awantipora on September 6, 1997 and was taken to some unknown destination along with his motorcycle. When my son didn’t return, I set to locate his whereabouts. I approached STF and SOG (Special Operations Group) officials through the SP, operations, Awantipora, who, after taking a lot of time, admitted my son’s detention. But my efforts brought no results. I haven’t seen my son till date. The STF agency concocted a baseless story that my son had escaped from custody.

“The SHO (station house officer), Soura, namely Abdul Rashid Khan alias Rashid Billa, is hand in glove with the criminals. He has given a legal cover to my son’s disappearance and has created false evidence by registering a false case against him. I approached the then home minister, Ali Mohammad Sagar, to seek his help in order to locate my son. He ordered a CID inquiry. The IG (inspector-general), CID, submitted its report stating that Fayaz Ahmad Beigh was arrested from the university campus and the story put forth by the STF was proved false.

“I approached the SHRC and registered a complaint (File No. SHRC /2008/09) in December 1997. The complaint was disposed of on April 3, 2000. The SHRC in its order rejected the STF/police story of Fayaz Ahmad’s escape from custody as ridiculous and recommended a compensation of Rs five lakh. The SHRC also directed the registration of a criminal case against SP Parihar and his subordinates. Unfortunately, the then state government did not pay any heed to the recommendations of the SHRC and left the case virtually unattended for years together. In the meanwhile, we also filed a habeas corpus petition (HCP No. 1411/97) in the high court wherein we prayed to show the case of detention of my son and the authority and law under which my son was detained. However, we were made to withdraw the writ petition on the ground that the case was already pending with the SHRC.

“Later on, in order to get the recommendations of the SHRC implemented, I filed a writ petition in the high court (OWP No. 263/OWP-2002). The hon’ble high court in its subsequent decision upheld the recommendations of the SHRC and directed the state government to execute the recommendations given by the SHRC. It is painful to note that the government has slept over the matter and shown no response even to the high court’s decision. In January 2004 the home department and SP, operations, HR Parihar, filed an appeal against the order passed by the high court division bench, Srinagar, on admission of the LPA (182/03). The hon’ble chief justice directed the trial court to pass an appropriate order in session of challan (239/97). On our application, the trial court, Srinagar, passed an order on December 12, 2007 that criminal proceedings cannot be started against a dead person; therefore the challan has been consigned to records after due compliance.

“The case is still pending before the division bench.”

Rape cases

Rape is a particularly heinous crime. It has been used as a method of humiliating an individual and community and destroying their honour. Since the stigma never goes away, the victim is shunned and shamed for life.

Testimonies from Kunan Poshpora village

Kunan Poshpora mass rape: On the intervening night of February 23 and 24, 1991 about 23 women from Kunan Poshpora village in the border district of Kupwara were raped by the troops of the 4 Rajputana Rifles during a search operation. As per reports, at around 11:00 p.m. army personnel in large numbers entered the village. This was followed by the segregation of women from men. While the men were asked to assemble in a village field, the women were ordered to stay put inside the houses. This is when the army men barged into the households and gang rapes followed. Reportedly, women from ages 13-80 were raped. One such woman, who is now 120 years of age, stated that she was stripped naked, dragged out of her house into the snow-filled front yard and gang-raped. A police investigation into the incident never occurred.

Bakthi (victim)

District: Kupwara

“On the night of February 23, 1991 our village was cordoned off by a large group of drunken army personnel. The next morning I came to know that other women from the village had similarly suffered. At this point the menfolk who had been assembled in the village field during the search operation the preceding night were being asked by the army to raise their hands in agreement and say aloud that no excesses had been committed in the village, and were being filmed while doing so. This is when we womenfolk went over to the field in half-naked condition to make it known to the men what had happened to us. On seeing us, the men lost their cool and refused to accept what they were being ordered to say.

“On getting home, the men too shared their stories of torture that had been inflicted on them by the army. Learning of the brutality that had been meted out to the women in the village, the men tried to file FIRs, which was a daunting task in context of the fear of reprisal by the concerned army men. There was no primary health centre nearby where we womenfolk could have got ourselves examined in order to collect medical evidence.

“At the time of the incident I was 30 years old. Within a year of the incident four women from our village – Saja, Mehtaba, Zarifa and Jana – succumbed to death stemming from the mental trauma and disgrace they had to put up with. These women had also been struggling with physical ailments subsequent to the incident. The self-humiliation resulting from our traumatic experience didn’t allow us to visit any of our relatives from other villages, nor did they pay us a visit. We also had to take our children out of school for fear of their being apprehended and tortured by the army. My son and many young men from the village grew up harbouring vengeance in their hearts for what had been done to the women in their families.

“Following the incident of mass rape in the village, proposals of marriage stopped coming from outside our village, since the news of the rapes had become common knowledge all around the valley. As a consequence, marriages between victim relatives from within our village started to take place. Many people came to our village for documenting or reporting the wrong that was done to us and we shared our stories with them yet justice has eluded us to date. Now we are disillusioned and personally I find it despairing and difficult to revisit that harrowing ordeal of ours by narrating it to people time and again. At the same time, the mental and physical pain suffered that night and after continues to haunt me. My old husband has died and now it is my last wish that the guilty army personnel be punished. I had lodged an FIR bearing No. RI/1387/83 under the Ranbir Penal Code, Sections 376, 452 and 342, at the Trehgam police station on March 2, 1991. However, nothing came of it.”

Faba (victim)

District: Kupwara

“I was approximately 25 years old and a mother of two at the time of the incident. At around 11:00 p.m. on February 23, army personnel barged into our house. They caught hold of my husband and were taking him away when I insisted on accompanying him. My husband stopped me by saying that I should wait for him at home, as he would be back in some time and there was nothing to worry. Therefore I stayed back and bolted the doors of my house. After a while, there was a loud knock at the door. On noticing that my house had been surrounded by the army, I did not unlock the door. At this, eight to 10 army men broke the door open, barged in and raped me and my unmarried sister. My sister is now suffering from post-traumatic stress disorder. With great difficulty we were eventually able to get my sister married to someone from the same village, whose family had suffered likewise. Post-rape, she even delivered a baby who did not survive. Within two to three months of the incident, a lady doctor was called into the village for conducting abortions on women who had conceived as a result of the rapes. My son was five to six years old at the time of the incident and he now faintly remembers what had happened to me and his aunt that night.

“The women from the village tried to preserve their clothes for some time in order to substantiate rape and showed them to the media or any other authorities who came to the village for investigating/reporting rape. Currently those clothes are in police custody.”

The judges asked the victims if any magisterial inquiry had taken place after the incident, as reports have suggested. The victims replied by saying that there were many people who came and asked questions after the incident; however, they do not know of their identities. In an aside, the victims collectively testified that they refrained from discussing the rapes with or in presence of their sons, apprehensive that they might take matters into their own hands. They added that on the next morning after the rapes a local resident, Abdul Ghani Dar, who was also a police constable, called a lady doctor to conduct check-ups of the victim women. (The said police constable’s cousin was also a victim and she had later conceived as a result of the rape. The foetus was later aborted.)

The said doctor conducted a medical check-up of all the women who had been raped and their clothes were taken to Trehgam police station later on. The doctor medically cleansed all of the raped women in order to prevent pregnancies. The victims stated that the police constable had taken the initiative of getting this done in order to save the village from humiliation. On February 17, 1993 an unidentified person killed the said policeman. His parents are still alive but his mother lost mobility and his father became a patient of depression after their son died.

The victims reported that women from Kunan Poshpora faced social rejection for many years after the incident; to the extent that they were not allowed seats in public transport by fellow passengers. Instead, they were made to sit on the floor, away from the others. On being asked by the judges what they expected from the tribunal, the victims replied in unison that they wanted the perpetrators to be punished.

The then chief justice of the Jammu and Kashmir high court, Justice Mufti Baha-ud-din, led a fact-finding mission to the village and concluded that normal investigative procedures were blatantly disregarded in this case. A Press Council of India investigation followed, which called the allegations of these women “a well-fabricated bundle of lies”. No further investigations were conducted and the matter remains unredressed till date. The government’s handling of the case was widely criticised in national and international circles, including international human rights organisations like Human Rights Watch and Amnesty International.

If such an incident had occurred in the rest of India, there would have been a sustained public outcry and agitation. The judiciary would also have responded.

Conclusion

It is clear that the rule of law does not operate as laid down in the statute books. Talks between Kashmiri leaders, including the separatists and the central government, have not led to any positive outcome. In fact, it would appear that the real mass discourse is a reflection of the mass alienation in the Kashmir valley. Demonstrations and street protests often resulting in clashes and stone-throwing have regularly led to civilian deaths fuelling another cycle of protest. The government’s focus is on containing the armed militants but not on having a sustained dialogue with the population and its leaders. The numbers of militants killed as indices of peace in the valley is misleading. The crucial indicator of mass alienation is not the infiltration of militants but resistance by the people.

Any path for a solution of the Jammu and Kashmir problem must squarely and frontally deal with this mass alienation of the people and directly confront its causes.

Recommendations

1. The controversial Armed Forces (Special Powers) Act 1958 should be withdrawn from Jammu and Kashmir. The Jammu and Kashmir Public Safety Act 1978 and other anti-terror laws should correspond to the provisions of the International Covenant on Civil and Political Rights which India has ratified. It should be noted that India has been repeatedly criticised in the UN Human Rights Committee for the existence of the Armed Forces (Special Powers) Act which violates, crucially, several articles of the ICCPR.
2. Keeping in view the large concentration of military and paramilitary forces in the state of Jammu and Kashmir, which is disproportionate to the civilian population and is also making civil administration ineffective in many matters, the government of India should take immediate steps to minimise the number of these forces in order to bring relief to the civilian population.
3. We recommend the establishment of a special judicial authority making an independent and thorough inquiry into all allegations of human rights violations, including disappearances, custodial killings, rape, torture, including torture of prisoners, fake encounters, and all other cases related to excesses by security forces.
4. Every case of killing by police and security forces in situations like protests, demonstrations, riots, etc should be followed by a judicial inquiry into the police/security forces firing/actions, followed by proper, time-bound administrative action. It is made clear that the police have no licence to kill anyone in any situation unless they can justify this action under Section 100 of the Indian Penal Code, which has to be done in a judicial procedure.
5. Provide proper rehabilitation to families of deceased, injured and traumatised victims, especially the raped.
6. Compensation as interim relief should be arranged promptly. Compensation should be adequate and purposeful. Compensation should be for both injury to person as well as for damage to property i.e. houses, etc.
7. The state should immediately establish fast track courts for the purpose of trying the large number of cases which are pending.
8. Both state as well as central governments should take immediate steps to address the sufferings of detainees who are languishing in various jails and interrogation centres in and outside the state of Jammu and Kashmir and have been complaining of torture and inhuman treatment inside the jails.
9. The state should provide witness protection, since many of the witnesses are being threatened.
10. It is necessary that the government should first establish a “Grievance Cell” in every town where armed forces are deployed. These cells will receive complaints regarding allegations of missing persons or abuse of law by security/armed forces, make prompt inquiries and furnish information to the complainants. The cell should have the full authority to inspect and call for every record maintained by the security forces or by the local authorities.
11. As a confidence building measure, the government should hold talks with the Jammu and Kashmir representatives, organisations of men and women, in Srinagar. Currently talks on these matters are held in Delhi, including talks with Pakistan. The Kashmiris find themselves out of the dialogue process, as no talks are held in Srinagar.

• Justice H. Suresh, former Judge, Bombay High Court
• Justice Malay Sengupta, former Chief Justice, Sikkim High Court
• Justice A. Barua, former Judge, Calcutta High Court
• Professor Kamal Mitra Chenoy, Jawaharlal Nehru University, Delhi
• Dr Nusrat Andrabi, former Principal, Government Women’s College, Srinagar
• Professor Anuradha Chenoy, Jawaharlal Nehru University, Delhi
• Shujaat Bukhari, senior Journalist, Srinagar n

The Independent People’s Tribunal on Human Rights Violations in Kashmir, organised by the Human Rights Law Network, HRLN, and ANHAD, was held in Srinagar on February 20-21, 2010.

Archived from Communalism Combat, July-August 2010, Anniversary Issue (17th).Year 17, No.153 – Cover Story 3

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