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Tortuous Road to Justice in Kashmir

In Kashmir the conduct of state or panchayati raj elections are often touted as indicators of normality, of people's willing participation in a democratic exercise. But these exercises signify nothing if the people themselves are denied access to justice and consequently lose faith in the state's judicial institutions. A report based on two studies and a visit to the state.

COMMENTARY

Tortuous Road to Justice in Kashmir

Freny Manecksha

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-of nationalist interest, of Islamophobia, of fighting terrorism and Pakistan and many other such discourses.

Early this year Amnesty International released its report A Lawless Law Detention under the Public Safety Act, Jammu & Kashmir, highlighting the way in which

In Kashmir the conduct of state or panchayati raj elections are often touted as indicators of normality, of people’s willing participation in a democratic exercise. But these exercises signify nothing if the people themselves are denied access to justice and consequently lose faith in the state’s judicial institutions. A report based on two studies and a visit to the state.

Freny Manecksha (frenym@gmail.com) is an independent journalist interested in development and human rights issues.

Economic & Political Weekly

EPW
august 6, 2011

S
ecuring justice in Kashmir has become impossible not because of draconian laws like the Public Safety Act (PSA) and the Armed Forces Special Powers Act (AFSPA), but because these laws are increasingly being used to supplant the ordinary criminal justice system which has its own procedures and human rights safeguards.

Moreover, a blanket legal and moral impunity in the state has led to a lack of respect by security personnel and the Jammu and Kashmir (J&K) authorities for the judicial process in habeas corpus proceedings. Court directives are simply igno red or circumvented. The impunity even allows an informal detention system to prevail whereby people, especially youth, are simply picked by Special Operations Group (SOG),1 taken to police stations or interrogation centres like the infamous “Cargo” (the air cargo building near the police station Shergari), and held in unofficial, illegal, incommunicado detention.2 Subsequently, they may be held in preventive detention.

Erosion of Faith

For these and other reasons people’s faith in judicial institutions is being whittled away. Legal and human rights activists speak despairingly of the “impossibility of justice” when it comes to Kashmir. They say there is very little support for accountability because it is seen through the prism

vol xlvi no 32

the state incarcerates suspects without adequate evidence. The report charges India of not only “gravely violating their human rig hts”, but also of having “failed in its duty to charge and try such individuals and punish them if found guilty in a fair trial”.

A detailed examination of how the PSA has been used by the state will illustrate how it is undermining the rule of law and why it is a “lawless law” in the world’s largest democracy.

Detention sans Trial

The PSA is a statute that provides for detention for a maximum of two years without trial in the case of persons acting in any manner prejudicial to the security of the state. It further allows for preventive (or what Amnesty prefers to call administrative) detention of up to one year where any person is acting in any manner prejudicial to the maintenance of public order.

The detention is ordered either by the divisional commissioner or the district magistrate. Grounds of detention must be provided to the detainee within five to 10 days, but without the necessity of disclosing facts that the detaining authority considers to be against public interest. In practice, even these norms are hardly follo wed. District magistrates routinely rubberstamp detention orders. Mir Shafkat Hussain, a Srinagar-based lawyer who has handled habeas corpus petitions for hundreds of PSA detentions and other

COMMENTARY

human rights cases, says that during his legal career he has come across only two district magistrates who took their role seriously and scrutinised the police versions, sending it back if necessary.

The PSA has been used widely to detain an estimated 8,000 to 20,000 people over two decades. Even minors are not spared. Although J&K adopted the Juvenile Justice Act in 1988, it failed to update the law in 2000 to define minors as those under the age of 18. Unlike the rest of India, J&K defines youth above the age of 16 as adults.

This definition emboldens the authorities to use the PSA against the rumbles of dissent over the last three years. Despite a tectonic shift in the nature of protests from militancy to unarmed street protests the state has refused to reflect this change in its attitude. A large number of young protesters and stone pelters, many of them minors, have been booked under the PSA after the state failed to pursue criminal charges.

A case which can serve as an illustration of all the concerns over the PSA is that of Faizan Rafiq Hakeem, a Class 10 student from Anantnag and the son of a fruit vendor, who was picked up on 6 February this year by the SOG and shifted to the interrogation centre. Later, criminal charges of damage to public property were filed against him. He was given bail but subsequently more criminal cases were slapped on him. Despite being granted bail on 23 February he was whisked away by the authorities to Kathua jail in Jammu where he was then detained under the PSA. While a distraught father ran around trying to secur e his son’s release from a jail, 300 km away from his hometown, another young son, Infad Hakim, was forced to skip school and take over his father’s trade.

Faizan’s detention was challenged by Shafkat Hussain on the grounds that he was a minor being 14 years old, and not 27 years of age as the detaining authority claimed. The debate on whether he really was a minor took on a strident tone with authorities carrying out medical tests and his counsel producing certificates from his college. Chief Minister Omar Abdullah went so far as to cast doubts on the veracity of the certificate saying such fake certificates can be produced in Kashmir.

Faizan’s ordeal as well as that of several minors highlights the deficiencies in the juvenile justice system in J&K. There are no detention centres nor are there any special remand homes. Youth arrested in the Valley are sent generally to jails in Jammu, Rajouri and Poonch all of which are at least six to 12 hours away. The distances and limited visiting hours that necessitate an overnight halt make it difficult and expensive for family members to visit the boys.

For youth held in jails outside the Valley, the experiences become even more intimidating because of language and cultural differences. Most horrifying, these boys are held along with hardened criminals, drug offenders, murderers and such others.

Allegations in the PSA are generally couched in vague language and omit details. Faizan was charged with leading a procession of stone pelters and damaging buildings and police vehicles. Shafkat Hussain challenged the grounds pointing out that there were no details about which buildings and police vehicles were targeted. Faizan was eventually released on parole in March.

Revolving Door Detentions

Since district magistrates rarely scrutinise the grounds of detention before passing them, the detaining authorities have used vague rhetoric and some truly bizarre grounds to incarcerate a wide category of people under the PSA. Some of the grounds do not constitute any recognisable criminal offence. A few examples:

A 70-year-old retired teacher of history, Gh Mohiuddin Sheikh, who worked with the education department and suffers from heart disease, has been detained on the ground that he forced the public to observe a strike.

Some minors were booked on the grounds that they wore lattoo shoes and their appearance was like that of militants.3

Suhail Ahmad Mandoo was accused of being a “nuisance in the society....a road Romeo...a cancer in the society” and of “manifesting criminal behaviour against young teenage girls”. His lawyer said he was held because he had a romantic relationshi p with the daughter of a police officer.4

Besides the arbitrary manner in which the PSA is applied, the state also undermines the rule of law by checkmating

august 6, 2011

court orders for the release of detainees. This is done by revolving door detentions, a carefully choreographed and coordinated procedure with the help of all agencies.

Shafkat Hussain explains,

outside the state, court orders are respected. Here they ‘respect’ orders regarding release of detained persons (under PSA) and promptly re-arrest them...For example, if a man from Baramulla is arrested, he is generally sent to a jail in Jammu or Udhampur. When the court issues the release order, the superintendent of the jail informs the Joint Interrogation Centre of Jammu or Joint Interrogation Centre of Kashmir who takes the detainee in for interrogation. Meanwhile, the authorities promptly issue a new detention order on new grounds thus thwarting the release.

Another strategy used by the authorities is to revoke a detention order on technical grounds and issue a new one thereby necessitating a fresh habeas corpus petition and ensuring the person remains in detention for at least another six months.

Revolving door detentions have been used relentlessly against political dissidents and party workers to disable the first and second-tiers of several political parties and outfits, according to Amnesty International.

The technique, which the state insists is not a technical violation, has not only destroyed political space but has also reduced the court’s functioning to focus on procedural and nominal aspects of detention at the “expense of substantive protection of human rights of detainees”.

The resultant erosion of faith in the judi cial processes has led to families opting to seek help from political party workers or influential local leaders when a close one is whisked away in illegal detention. At their intervention the family agrees to an undertaking and the dossier

available at

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vol xlvi no 32

EPW
Economic & Political Weekly

COMMENTARY

for detention is never sent to the district magistrate. This phenomenon of bypassing judicial systems along with the police keeping “open FIRs” has led to the charge of the prevalence of extortion, bribery and other corrupt practices.

On condition of anonymity, a young street protester confirmed he was held illegally in a Srinagar police thana until his father, a small businessman in downtown Srinagar, paid Rs 10,000 for his release.

Right to Life

The other major threat to the rule of law in Kashmir, especially with regard to Article 21 (Right to Life), is the impunity that springs from the AFSPA. In 2000, a group of lawyers and volunteers, who were concerned over custodial killings and enforced disappearances, decided that while such violations were regularly reported, it was necessary to have a detailed documentation of the manner in which the justice system dealt with the huge number of habeas corpus petitions that were filed in the high court in this regard. The group, which was later named as the Centre for Law and Develop ment, provided assistance and fieldwork for a monograph titled In Search of the Vanished Blood, The Writ of Habeas Corpus in Jammu & Kashmir 1990-2000 brought out by Ashok Agrwaal for the South Asia Forum for Human Rights. It is technically a “report on the functioning of the constitutional and legal redress mechanism for the protection of the right to life during the period of insurgency in Kashmir 1990-2000”.

The report which examines 98 cases of alleged enforced disappearances says its theme is the “impossibility of justice for victims of impunity”. It observes that “the single most striking feature of the habeas corpus proceedings is the powerlessness of the high court”.

From the point when the court issues notice of the petition upon respondents that is the state and central governments, it loses all control over the pace, manner and outcome.

The report says that in over 57% of cases there was a clear finding against an identified security force or unit. The court was unable to do anything more than order registration of an FIR which ought to have

Economic & Political Weekly

EPW
august 6, 2011

been done in the first place. In 10 cases of The judge dismissed the police’s claim
the 98, the order to register an FIR took that the accused unit did not cooperate
between five and 12 years. with the Parimpora Police Station for pro-
Furthermore, the court’s staff did not ceeding in the prosecution. He said, “It is
carry out directions issued by the judges. for the police officials to invoke the appro-
There were years of delay because notices priate provisions of the law under the
and summons were not issued to agencies criminal law jurisdiction for securing the
despite directions. ends of justice”. He noted that the “pathe-
The conduct of other players (the tic” plea of being “helpless” would only
respondents) also contributed to stalling result in deterioration of the status of the
the proceedings. In the case of the disap law-enforcing agency.
pearance of Manzoor Zargar, the Border He also held the 20 Grenadiers unit
Security Force (BSF) took over five years guilty of violation of Article 21 saying that
to file its response to the petition. In as it is “patent and incontrovertible” even
many as 38 cases the accused unit of the though it denied the arrest. He added, “It
armed forces did not bother to file any re (the unit) came forward with an incorrect
ply at all. The nature of the response too and untrue statement that the case of the
was far from satisfactory. In over 70% of detenue was dealt with by this court and
the petitions, there was bald denial of the was closed”. Though the unit was given
arrests being made by the units. In 10 ample opportunities, it did not bother to
cases, there was admission of arrest but it place any material either oral or docu
was claimed that the person had subse mentary to support its stand of mere
quently been released. In three cases it denial regarding the disappearance of
was claimed that the arrested had es the detenue.
caped from custody. In 62 cases in which The judge declared that this was a case
inquiries had been ordered by the high which would “fall within the parameters
court, the accused unit did not participate of violation of the right under Article 21 of
in inquiry proceedings. In the case per the Constitution which was gross and was
taining to Basharat Shah, the Central Re of such grave magnitude which shocked
serve Police Force made the commandant the conscience of the Court”.
and deputy commandant of 53 BN retire It is a grave indictment of democracy
rather than be produced in court. The re when after a court holds a crime to be
port sums up how all these factors ren of grave magnitude the judicial remedy
dered the failure of the writ of the habeas is ineffective because the law cannot
corpus or its ability to deliver punitive be held applicable to an executive that
justice. All that the court can offer is com does not respect people’s fundamental
pensation for the victim’s family. rights to life and liberty. In Kashmir the
A recent judgment in Srinagar, dated 25 holding of elections – state or panchayati
March 2011, however, is being hailed not – are often touted as indicators of nor
just because of the compensation amount mality, of people’s willing participation
awarded (Rs 10 lakh) but because of the in a democratic exercise. But these
unequivocal comments made by the judge. exercises signify nothing if the people
The case concerns the enforced disap themselves are denied acces s to justice
pearance of autorickshaw driver Mushtaq and consequently lose faith in the state’s
Ahmad Dar of Tengpora, Srinagar, who judicial institutions.
was picked up in the presence of his fam
ily members, by the 20 Grenadiers of the Notes
Army on 13 April 1997. A habeas corpus 1 A special force of the police that works in tandem
petition was subsequently filed by the with the army and other security forces.
mother. In his judgment judge F M Ibrahim Kalifulla notes that in spite of an or 2 http://www.citizenside.com/en/photos/politics/ 2011-03-1/35280/amnesty-international-slams-indian-and-kashmir-government-for-illegal-deten
der dated 28 October 2003 by the addi tions.html
tional sessions judge (who conducted an 3 Testimony of Parvez Imroz in “The Terror of
inquiry) to the Parimpora Police Station to file an FIR, they failed to do so until POTA and Other Security Legislation, A Report on the People’s Tribunal”. 4 A Lawless Law Detention under the PSA, Amnesty
4 April 2009. International.
vol xlvi no 32 31

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