How India alienated Kashmiri people

BY: AIJAZ ZAKA SYED

An unjust law is no law, warned Martin Luther King, the celebrated U.S. human rights icon. The Kashmiris have been living with suchlaws for decades. At least one in every five Kashmiris has at some point or another in his/her life suffered violence, humiliation, torture and old-fashioned abuse at the hands of security forces without any recourse to justice or a distant promise of retribution

Is it any wonder then the Kashmiris today find themselves hopelessly alienated and persecuted even as our politicians never tire of pronouncing the state an “integral and inseparable” part of India?.

The Armed Forces (Special Powers) Act has been a license to abuse, torture and kill the Kashmiris in their own land. A law that confers “special powers” on men in uniform to do as they please and get away with it; a law that the UN says violates “contemporary international human rights standards” and a law that cannot be challenged in any court of law no matter how grave the crime.

Following the division of the subcontinent in 1947 when India and Pakistan actively courted the princely state of Jammu and Kashmir, it was promised a “special status” and special treatment by New Delhi. The Article 370 of Indian Constitution was supposed to protect that “special status” of Kashmir. We made a lot of other promises as well that are too familiar to revisit here.

And we have ensured and protected that “special status” of Kashmir by gifting them the AFSPA that offers sweeping powers to the security forces while ensuring their total immunity. This special law has turned the Vale of Kashmir that the Moguls believed was paradise on earth into a beautiful hell.

How did we end up here? Who lost the paradise? The answer is out there and everyone knows it. In our desperation and determination to keep Kashmir with us and away from our neighbor, we have ended up losing the Kashmiri people.

Of course, the role played by Pakistani agencies, not to mention groups such as the one led by Hafiz Saeed, who have made a business enterprise of jihad, in adding to the woes of Kashmiris isn’t in anyway insignificant.

But if an entire generation of Kashmiris has grown up loathing all things Indian it is because of the excessive presence of the security forces in the Valley and their heavy-handed approach to the local population. And if there is one thing that epitomizes all that has go

ne wrong with India’s Kashmir affair, it is the AFSPA. This black law has created a dangerous, ever deepening disconnect and gulf between the Kashmiris and the rest of India. A draconian law that belongs in a police state, not in the world’s largest democracy.

Thanks to these “special powers”, just about anybody could be picked up from anywhere any time, kicked, abused, raped, killed in broad daylight or simply disappeared and no one including the state government can do anything about it.

Security forces are a law unto themselves. And you see their power in full display all across the state including in capital Srinagar. There are more soldiers than tourists or even locals constantly reminding the Kashmiris of the original sin of being born in this land of incredible beauty. Peaceful protests last year saw scores of young people, some of them as young as nine, felled by the bullets of the forces that are supposed to protect them. In the course of fighting terrorists and cross-border infiltrators, we have turned this beautiful land into a permanent war zone and its proud people a hostage in this never-ending conflict with the neighbor. This war has claimed more than a hundred thousand Kashmiris over the past two decades, not to mention the tens of thousands who have gone “missing.”
If the 2,730 unmarked mass graves recently discovered across the state had been found elsewhere they could have shaken the world, as they did in Srebrenica, in Iraq and Rwanda. But they were met with stony silence in the ever-shrill Indian media and its self-righteous Western counterparts.

Human rights groups including the State Human Rights Commission that finally acted on the complaints of thousands of families of “disappeared persons” unearthing graves with hundreds of bullet riddled bodies fear this may be a tip of the iceberg. The dead in Kashmir have finally begun to speak up, as Arundhati Roy so evocatively puts it. But justice may still elude the victims as long as the AFSPA reigns in Jammu and Kashmir. And India’s powerful security and defense establishment, including the army, are determined to retain it. And why wouldn’t they? It’s this law that allows the security forces to rule and treat Kashmir as their fiefdom without anyone, including the elected government, questioning their authority and excesses. Despite being a fine and vibrant democracy with robust democratic institutions and judiciary that we can justifiably be proud of, we are yet to realize that no people can be governed at gunpoint. Not in this age and time. Not with black laws like the AFSPA and not by constantly waving half a million guns that have contributed to the alienation of Kashmiri society and radicalization of its youth. If India is to win Kashmiri hearts and minds, it could do so only with love, compassion, respect and justice.

(The writer is a Middle East-based commentator. This article first appeared in Arab News on Nov. 3, 2011.)

Draconian Law prevailing in our state (Jammu & Kashmir)

JAMMU & KASHMIR PUBLIC SAFETY ACT, 1978

The Act promulgated in 1978 (amended in 1987 and 1990) empowers the State government to detain a person without trial for two years under the pretext of maintenance of public order. The Act fell short of the recognized norms of justice, such as equality before law, the right of the accused of appearance before a Magistrate within 24 hours of arrest, fair trial in public, access to counsel, cross examination of the witnesses, appeal against conviction, protection from being tried under retrospective application of law, etc. Even the provisions of the Act, though already unsatisfactory, have been consistently violated. The detainees are not informed of the reasons of their arrest and they are kept in custody for a much longer period of time than stipulated in the Act. They are not allowed to meet their relati

ves and counsels. The amendment of 1990 extended its operation beyond the State, enabling the State machinery to keep the detainees in the jails of India, outside the State. Under Section 22 of the Act, any legal proceeding against officials for acts “done in good faith” are also disallowed.The law has been widely used against the innocent Kashmiris as well as political opponents. Thousands of people have over the years been detained under the Act.

JAMMU & KASHMIR DISTURBED AREAS ACT, 1990

Under the Act, the whole or part of the State can be declared disturbed area by the Central Government or the Governor. The whole valley of Kashmir and two Districts of Jammu have since been declared disturbed areas. An official of the level of Head Constable is allowed to use force or shoot (and kill) under the pretext of maintaining the public order. The Act gives the police extraordinary powers of arrest and detention. It provided a cover to the state machinery for indiscriminate and unprovoked firing at peaceful and unarmed demonstrations, extra judicial killings and destroying the property of Kashmiris on suspicion. Moreover, Section 6 gives legal immunity to persons acting under this Act; no suit or prosecution can be instituted, except with the previous sanction of the government against any person in respect of anything done or purported to be done in exercise of the powers conferred by the Act.

TERRORIST AND DISRUPTIVE ACTIVITIES ACT (TADA) 1990 :

The Act enforced in 1985 (amended in 1987) gives security forces and armed forces special powers for use of force, especially the amendment of 1987 made it tougher. It was widely used for unauthorized administrative detention without formal charges or trial for upto one year. Under the Act, involvement in, or preparation for, disruptive activities attracts sever punishment upto life imprisonment. Arrests can be made even on suspicion of committing “disruptive activities”, broadly defined as “any action taken, whether by act by speech or through any other media ….. which questions, disrupts or is intended to disrupt, whether directly or indirectly, the sovereignty and territorial integrity of India, or which is intended to bring about or support any claim…… for the cession of any part of India from the Union……” Since the law gives special powers to the security forces in the use of force, arrest and detention, it was extensively used in the occupied Kashmir. Even after lapse of the Act in 1995, the cases are filed under this Act, which provides that it may be applied to preceding trials in various courts and to persons, who may be tried in connection with the offences alleged to have been committed prior to 1995. The regime of the occupied Kashmir acknowledged that it held 772 persons under the TADA. Still many more are in Indian jails, outside the State.

This law also fails to meet the international standard of fundamental principles of justice, which requires that the detainees should have a fair and prompt trial and they should be informed of the reasons of arrest. The defence counsel is not permitted to see witnesses for the prosecution, who are kept behind screen while testifying in court. Besides, confessions extracted under duress are permitted as evidence.

THE ARMED FORCES (JAMMU & KASHMIR) SPECIAL POWERS ACT, 1990

The Armed Forces (Jammu & Kashmir) Special Powers Ordinance, introduced in July, 1990, was later enacted by the Parliament of India and enforced on 10th September, 1990. When certain areas are declared to be “disturbed”, the army and paramilitary forces are granted sweeping powers under Section 4 (C) of this Act.The armed forces can be used in aid of civil authorities and even a non commissioned officer can search any place, stop/seize any vehicle, fire at any person (and kill), or arrest him even on the basis of suspicion with no obligation to inform him of the grounds thereof. It gives the Indian security forces sweeping powers that facilitate arbitrary arrests and detention and extra judicial executions as well as destruction of property.The provisions of the black law are further violated in the occupied Kashmir by the security forces. Under the law, an arrested person is to be handed over to the nearest police station. But it is seldom done. Besides, the armed forces personnel are supposed to act as and when requested by the civilian authorities. In other words, the former should work under the direction of the latter. However, factually the security forces are inflicting atrocities on the Kashmiris without informing the civil administration. The State government has proved ineffective in controlling the Indian security forces, who have unleashed a reign of terror in occupied territory. The Act legitimizes barbarism in the State, as under Section 7, the security forces are given an immunity from prosecution for any act committed by them..

PREVENTION OF TERRORISM ACT (POTA), 2002

The Prevention of Terrorism Ordinance (POTA), promulgated on 25th October, 2001 was initially rejected by the Upper House, when presented for enactment. However, it was passed at the joint session of the Indian Parliament on March 26, 2002. Though the law was for the whole country, its main focus was occupied Kashmir.POTA equipped the Indian forces with extra ordinary powers. Under the law, any act committed with a lethal weapon was termed terrorist act. The offences included even inviting support for an alleged “terrorist organisation”, addressing a gathering of sympathizers (of a terrorist organisation) and arranging, helping or assisting to arrange a meeting in which support for any “terrorist organisation” or its activities is expressed. The properties of the alleged terrorists, terrorist organisations and their sympathies would be seized. The suspects could be detained for 3 months without framing charges against them and for another 3 months, if allowed by a special Judge.The Government officials admitted that excesses had regularly been committed. A long list of illegal arrests and unlawful killings has been documented by the human rights organisations. This black law was used mainly in occupied Kashmir. Ninety Nine point nine percent arrested under this Act were Muslims. Owing to strong protests and denunciation from the world leaders and organisations, the Act has now been withdrawn.

UNLAWFUL ACTIVITIES (PREVENTION) AMENDMENT ORDINANCE 2004

The Ordinance was passed by the Indian President in 2004 and was implemented forthwith. It has since been promulgated as Act. It again provides extraordinary powers to armed forces and other law enforcement agencies, similar to those previously provided by the POTA.In addition to the above-mentioned measures, the laws and ordinances regarding other disturbed parts of India can also be applied in occupied Kashmir.

THE NATIONAL SECURITY ACT (NSA)

Under the NSA, a person can be detained without charge or trial for upto one year to prevent him from acting in a manner prejudicial to state security, the maintenance of public order or relations with a foreign power.

OFFICIAL SECRETS ACT (OSA)

Under the Official Secrets Act (OSA), the Government may restrict publication of sensitive stories. But the Government interprets this broadly to suppress criticism of its policies.

NEWSPAPERS INCITEMENTS TO OFFENCES ACT

The Newspapers Incitements to Offences Act, 1971 remains in effect in Jammu and Kashmir. Under the Act, a District Magistrate may prohibit the publishing of material resulting in “incitement to murder” or “any act of violence”.

CRIMINAL PROCEDURE CODE

The Criminal Procedure Code provides for an open trial in most cases, but it allows exceptions in proceedings involving official secret trials in which statements prejudicial to the safety of the State might be made, or under provisions of special security legislation. The authorities enjoy special powers to search and arrest without a warrant. If required, the public assemblies can be banned and a curfew can also be imposed.

INDIAN TELEGRAPH ACT

The Indian Telegraph Act authorizes the surveillance of communications, including monitoring telephone conversations and intercepting personal mail, in case of public emergency or “in the interest of the public safety or tranquility”.Besides the afore mentioned draconian laws, the following are also in force: -

i. Enemy Agent Ordinance 1948.

ii. The Egress and Internal Movement (Control) Ordinance, 1948.

iii. Prevention of Unlawful Activities, 1963.

iv. Prevention of Subversion and Sabotage Act, 1965.

WORLD OPINION

The TADA gives a license to kill. (Amnesty International). The powers of the TADA and the Armed Forces Special Power Act are incompatible with the state obligation to uphold and protect human rights, in particular the right to life. (UN Human Rights Committee). Wide powers of arrest granted under TADA, combined with the absence of fundamental legal safeguards for detainees, create a climate, which encourages abuse of power and facilitates illegal and secret detention. (Amnesty International)

1) The TADA has come to represent a blatant and wide spread violation of civil rights. (Daily The Indian Express)

2) This organisation has not come to know of a single case of disappearance in Indian Held Kashmir in which the perpetrators have been brought to justice. (Amnesty International)

3) Thousand of allegations of torture and deaths in custody have been reported in Jammu & Kashmir since early 1990. (Amnesty International Report, 1995)

4) “Access to redress for victims of human rights violations, a right guaranteed under international law, is being denied to victims in Jammu & Kashmir”. (Amnesty International – May, 1997)

5) Thousands of political persons were detained without charge or trial under special legislations such as TADA, the Armed Forces (Special Powers) Act and the Disturbed Areas Act, which lacked vital legal safeguards. (Amnesty International Report, 1997)

6 ) Many provisions of TADA contravene important international human rights standards, especially the right to liberty and security, to a fair trial, freedom of expression and the right not to be tortured. (Amnesty International)

7) India should release all detained Kashmiri leaders and political workers. The draconian law, the Public Safety Act should be annulled, if it cannot be so amended as to conform to the standard of protection of human rights. (Amnesty International – May, 2001)

8) The Armed Forces (Special Powers) Act violates provisions of International human rights law, including the right to life, the right to remedy and the rights to be free from arbitrary deprivation of liberty and from torture and cruel inhuman or degrading treatment or punishment. (Amnesty International)

9) The continuance of a system characterized by extra ordinary law created to fight the insurgency, like the Armed Forces Special Powers Act, the Public Safety Act and the POTA, has “produced an environment of impunity and lawlessness”. A systematic pattern of abuse emerges – the Armed forces do not disclose, indeed they conceal their identity, no record is maintained of who is conducting the arrest. The Armed forces do not respond to summon from the courts even in habeas corpus petitions. The High Court of Jammu & Kashmir has been forced to close hundreds of cases without even finding what happened to disappeared persons for non cooperation of the Armed forces. (Tapan Bose – The Committee of Initiative on Kashmir)

10) The Prevention of Terrorism Act (POTA) continued to be used to detain political opponents and members of minority populations. The lapsed Terrorist and Disruptive Activities Act continued to be used to arrest people in Jammu and Kashmir by linking them to cases filed before 1995. Preventive arrest and detention provisions contained in other security laws as well as in the Code of Criminal Procedure were also misused against political and human rights activists. (Amnesty International Report, 2004)

11) The Indian government’s failure to account for these abuses and take rigorous action against those members of its forces responsible for murder, rape and torture amounts to a policy of condoning human rights violations by the security forces.

12 ) Among the worst of these violations have been the summary executions of hundreds of detainees in the custody of the security forces in occupied Kashmir. Such killings are carried out as a matter of policy.

14 ) Operating as secret illegal army, have been the state – sponsored paramilitary groups. Many of these groups have been responsible for grave human rights abuses, including summary executions, torture and illegal detention as well as election – related intimidation of voters. (Human Rights Watch Asia, Report, 2005)

15 ) Indian troops continue to use extra judicial killings as a method to suppress insurgency in Kashmir. The National Human Rights Commission (NHRC) reported 136 deaths in police custody and 1357 deaths in judicial custody during the period of January to March, 2004. Besides, the Indian authorities generally did not report encounter deaths in Jammu & Kashmir to the NAHRC. (State Department Report, 2005)

A‘LAWLESS LAW’ DETENTIONS UNDER THE JAMMU AND KASHMIR PUBLIC SAFETY ACT (PSA)

LATEST REPORT ON JAMMU & KASHMIR BY AMNESTY INTERNATIONAL

EXECUTIVE 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. 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.

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.

Amnesty International’s report: A ‘Lawless Law’: Detentions under the Jammu and Kashmir Public Safety Act 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.”

Photo 1: Shabir Shah being arrested by police while en-route to Sopore and

Baramulla (© J&K Freedom Democratic Party)

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 estimates, only around 500 members of armed groups now operate in the Kashmir valley. But in the last five years, there has been a resurgence of street protests. Some of the protesters, most of them young, have resorted to throwing stones at security forces, which have on many occasions retaliated with gunfire using live rounds. Despite this apparent shift in the nature of opposition to the Indian state, there does not appear to be a change in the approach of the J&K authorities. They continue to rely on the extraordinary administrative detention powers of the PSA rather than attempting to charge and try those suspected of committing criminal acts. Between January and September 2010 alone, 322 people were reportedly detained under the PSA. Many of these individuals may have been detained after
being labelled as “anti-national” solely because they support the cause for Kashmiri independence or a
merger with Pakistan and because they are challenging the state through political action or peaceful dissent.
Some of the political activists detained under the PSA include lawyers and journalists. Besides Shabir Shah, a
number of prominent political leaders have been detained under the PSA; many including Masarat Alam
Bhat remain in detention.

Amnesty International opposes on principle all systems of administrative detention. The Indian Supreme Court
has also described the system of administrative detention as “lawless law”. The PSA has become precisely such a “lawless law”, largely supplanting the regular criminal justice system in J&K. Criminal justice systems have developed procedures, rules of evidence, and the burden and standard of proof in order to minimize the risk of punishing the innocent and to ensure punishment of the guilty. It is unacceptable for any government to circumvent these safeguards by use of “preventive” or any other form of administrative detention: punishing those suspected of committing offences without ever charging or trying them.

The rate of conviction for possession of unlawful weapons – one of the most common charges brought
against alleged supporters or members of armed groups – is 0.5 per 100 cases: over 130 times lower than the
national average in India. Similarly the conviction rate for attempt to murder in J&K is eight times lower than the national average, seven times lower for rioting and five times lower for arson (see graph below). In contrast, the number of persons in administrative detention without trial in J&K is 14 times higher than the national average – a possible result of the monthly / quarterly “targets” or quotas of detentions apparently followed by the J&K police.

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.


NO WAY OUT
Police arrested Muneer Ahmad Sheikh on 29 July 2008 and charged him with possession of prohibited weapons. While in prison awaiting trial in this case, a PSA detention order was issued on 20 September 2008 (DMS/PSA/22/2008). At the same time he was also formally charged in three additional criminal cases of attacks on security forces carried out in 2001, 2004 and 2009 respectively. The PSA detention order was quashed by the High Court on 4 August 2009, which accepted his habeas corpus petition (HCP 240/09). Sheikh was granted bail in connection with the initial charge of possession of prohibited weapons in January 2010, but he remained in detention awaiting trial on the other charges. On 24 February 2010, the trial court dismissed two of the three outstanding charges against Sheikh noting that the only evidence against him was a confession made by him while in police custody which was inadmissible in court (in India, confessions made to the police are inadmissible as evidence because of fears that they may be coerced). Sheikh’s lawyers claim that he was indeed tortured by police during his interrogation. The court dismissed the third charge against Sheikh on 15 March 2010.Despite having no further criminal charges or PSA detention orders pending against him, the prison authorities handed Sheikh to the police on 16 March who detained him illegally at the Joint Interrogation Centre (JIC) at Humhuma, Srinagar. He was not brought before a magistrate within 24 hours as required by law. Finally, a second PSA detention order (DMS/PSA/95/2010) was issued against him on 31 March 2010. The grounds of detention claimed that Sheikh had been released from prison on 28 March (while he was in fact still in detention) but had been rearrested immediately afterwards because he was forcing shopkeepers to close their establishments and inciting the public to support a call for a general strike. A habeas corpus petition (No. 123/10) is currently pending in the J&K High Court challenging Sheikh’s detention under the PSA and seeking compensation for his illegal detention. His is just one of hundreds of such petitions heard by the High Court every year.

Photo 2 and 3. Left: 14-year old Mushtaq Ahmad Sheikh, who was arrested in a criminal case of rioting and attempt to murder, allegedly as part of a stone-pelting mob. He was held in administrative detention for nearly 10 months from 21 April 2010 to 10 February 2011. Right: Family members of Mushtaq Ahmad Sheikh who told Amnesty International they could not visit their brother in jail for many months as the distance and the limited visiting hours made it into an overnight visit – making it too expensive for them. (Both photos © SHOME Basu)

Detainees also cannot challenge the decision to detain them in any meaningful way; there is no provision for
judicial review of detention in the PSA; and detainees are not permitted legal representation before the Advisory Board, the executive detaining authority that confirms detention orders. The United Nations Working Group on Arbitrary Detention (WGAD), in a November 2008 opinion on 10 PSA cases from J&K, found that the detentions did not conform to the international human rights legal obligations that the Government of India is bound by.

Furthermore, state officials often implement this law in an arbitrary and abusive manner, as numerous cases
cited in this report demonstrate. Detaining authorities fail to provide material on which the grounds of
detention are based to detainees or their lawyers. Detainees can approach (often successfully) to the High
Court to quash their order of detention, but Amnesty International’s research clearly shows that the J&K
authorities consistently thwart the High Court’s orders for release by re-detaining individuals under criminal
charges and / or issuing further detention orders, thereby securing their continued incarceration. The
ultimate decision as to whether PSA detainees are allowed to go free lies with an executive Screening
Committee made up of government officials, police and intelligence officials whose deliberations are not open to any public scrutiny.

Systems of administrative detention are notorious for facilitating human rights violations, including incommunicado and illegal detention and torture and other forms of ill-treatment in police and judicial custody. The PSA is no exception. Many of the PSA cases studied by Amnesty International for this report contained evidence of periods of illegal detention in violation of national and international law. Many alleged the use of torture and other forms of ill-treatment in coercing confessions. The PSA provides for immunity from prosecution for officials operating under it, thereby permitting impunity for human rights violations carried

out under the law.

Amnesty International has previously called on the Government of India to reform its administrative

detention system, as have other international human rights organisations and a number of UN human rights

mechanisms. India has so far chosen to ignore such calls. In a meeting with Amnesty International delegates

in Srinagar in May 2010, the then Additional Director General of Police (Criminal Investigation Department) of J&K asked, “What rights are you talking about? We are fighting a war – a cross border war.” Such opinions, and the practices that result (as documented in the current report), run directly counter to legal commitments made by India in ratifying international human rights treaties, and assertions regularly made by government officials at both the state and central level that the rule of law should prevail in J&K. The widespread and abusive use of the “lawless” PSA, far from building confidence amongst the Kashmiri

population, further risks undermining the rule of law and reinforcing deeply held perceptions that police and

security forces are “above the law.”

Photo 4: Chairman of J&K Muslim League, Masarat Alam Bhat, detained by policemen in Srinagar, 26 April 2007. 

(© AP/PA Photo/Mukhtar Khan)

RECOMMENDATIONS
Amnesty International calls upon the Government of Jammu and Kashmir to:
- Repeal the PSA and end the system of administrative detention in J&K, charging those suspected of committing criminal acts with recognizably criminal offences and trying them in a court of law with all safeguards for fair trial;
- As a means of demonstrating the government’s commitment to the rule of law, end practices of illegal and
incommunicado detention and immediately put in place safeguards to ensure that those detained are brought promptly before a magistrate, provided with access to relatives, legal counsel and medical examination, and held in recognized places of detention pending trial.


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 allegations of torture and other ill-treatment, denial of visits and adequate medical care, make its findings public and hold those responsible to account.


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. 



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