Minors are arrested under the preventive detention law, which has now been slammed by the UN human rights body.
Srinagar, India-administered Kashmir – Rauf Ahmad Wagay was 16 when he was picked up in June last year from his home in India-administered Kashmir’s Kulgam region. Charged under the controversial Public Safety Act (PSA), he was lodged with adult prisoners despite being a minor.
Wagay is among thousands of Kashmiris, including a large number of minors, who have been illegally booked and held under the PSA. Enacted in 1978, the law allows preventive detention of people against whom there may be no recognised criminal offence.
When Al Jazeera asked Wagay’s father, Mohammad Yousuf, why he did not challenge his son’s illegal detention, he said, “This is Kashmir. Here, anything goes.”
Recently the United Nations took an exception to that rule in Kashmir, one of the world’s most militarised zones.
In an unprecedented endorsement of alleged transgressions in Kashmir, the office of the United Nations High Commissioner for Human Rights released a report which questioned, among other things, the arbitrary use of PSA by the Indian state.
The UN report, titled ‘Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit-Baltistan’, revealed that over 1,000 Kashmiris were held under the PSA between March 2016 and August 2017.
The UN report said India has failed in creating a standard operating procedure under the PSA to guide officers who issue a detention order. The officers rely solely on dossiers prepared by police “who don’t verify facts”, the report said, calling for an independent, international investigation into human rights abuses in Kashmir.
The Indian government, also riled by the UN calling Pakistan-administered Kashmir ‘azad’ (free), rejected the report, calling it “fallacious, tendentious and motivated”.
“It is a selective compilation of largely unverified information. It is overtly prejudiced and seeks to build a false narrative. The report violates India’s sovereignty and integrity,” India’s foreign ministry said in a statement.
But a sneak peek of PSA cases reveals a long list of unmerited detainees, predominantly poor, who are harassed by the police in several ways.
Srinagar-based lawyer Mir Shafkat Hussain told Al Jazeera that the PSA is abused in four ways: one, minors are booked unlawfully; two, people are held even when there are no police reports to validate the use of PSA; three, the law is successively invoked against people absolved by a court; and, four, it is often invoked in cases where the alleged unlawful activity on part of the accused took place more than two years ago.
The PSA provides for a maximum detention of up to two years from the date of the offence if the offence is prejudicial to the security of the state.
“Although the law is meant for adult offenders, minors are often booked since the police have zero accountability,” Hussain said.
Zubair Ahmad Shah from Kashmir’s Kupwara district was 17 when he was held in 2016. “My family provided documents supporting my status as a minor, but the police remained unmoved,” Shah told Al Jazeera.
Shah spent 30 days in a Jammu jail before a court ordered his shifting to a reformation home for minors.
Ramzan Khan, 37, a resident of Bandipora district, was arrested for a second time under PSA on September 20, 2017 despite his previous arrest in 2014 set aside by a court.
The police claimed that Khan did not “shun his path of subversive activity” after being released. However, the offence that he was charged with the second time dated back to March 6, 2014 – more than three years before his latest incarceration.
Khan was released in February this year, but the worst had already happened. When he was in jail, his wife, unable to bear the affliction that had encompassed their lives, miscarried during the eighth month of her pregnancy. That was only six months after the couple had lost their eight-year-old daughter in an accident.
The PSA is also used to delay the release of a person acquitted by a court.
Manzoor Najar, Ashiq Hussain Bhat and Basharat Mir were arrested in 2013 in connection with the killing of police officer Shabir Ahmed. The three men, along with two other accused, were acquitted by the court in 2017.
But none of them were released. In defiance of a local court’s orders which ordered their freedom, the three men were shifted to a police station where they were kept in illegal confinement, and then shifted to a jail, where the PSA was once again imposed on them.
Lawyer Nasir Qadri, who handles PSA cases, said, “Although the courts often point out procedural lapses while setting aside unmerited charges against a detainee, they do not have any real powers. The state administration errs at will.”
Often, Kashmiris are charged with PSA even when their purported offence is more than two years old.
The offence that Atif Hussain Sheikh was charged with took place allegedly on May 29, 2015. His detention order under PSA was passed in August 2016. But he was arrested in July 2017.
“[Sheikh’s arrest] was totally illegal and unjustified,” said Shafkat Hussain. “How do you justify the execution of PSA in July 2017 when the alleged activity involving Atif dated back to May 2015?”
Kashmiris also allege the police use PSA to extort money. “Whenever there are protests, the cops demand money, anything from Rs 500 ($8) to Rs 5,000. If you don’t pay, your child is booked for stone-pelting,” said a family in Hajin village in North Bandipora, requesting anonymity.
In the 40-year since the PSA was enacted, there is no record of an investigation ordered against any policeman for transgressing the provisions laid down in the Act.
Repeated attempts by Al Jazeera to get a senior Jammu and Kashmir police official to respond to these allegations were unsuccessful.
Professor Radha Kumar, one of the three interlocutors appointed by the Indian government for dialogue with Kashmiri citizens and groups in 2010-2011, told Al Jazeera that PSA is indeed used indiscriminately against the people.
“We had recommended the complete withdrawal of PSA. We need laws for the police, but to arm them with unlimited rights is unreasonable,” Kumar told Al Jazeera.
For ordinary Kashmiris, therefore, the UN report on human rights violations has brought with it a hope that the international community may finally hear their side of the story.
“In any responsible democracy, such a damning report would have initiated a debate on how the human rights record can be improved. But the Indian government chose to reject it. Even India’s liberals are defending this propagandist and unethical rejection,” political commentator Gowhar Geelani told Al Jazeera.
“But the UN report has recognised the right to self-determination of the Kashmiris.”
by Anando Bhakto/AL JAZEERA NEWS