Rampant misuse of Public Safety Act
S. Ishfaq


Recently, Amnesty International (AI) has once again brought to light the brazen misuse of draconian preventive detention laws and rampant victimization of Muslims in Indian held Kashmir. In this particular instance, the AI has pleaded the case of 18 year old Mohammad Mubarak Bhat who was ordered to be released by the court but who continues to be behind bars. Like hundreds before him, Mubarak has been framed and slapped with all sorts of vaguely defined charges after he was allegedly held for stone pelting. Stone pelting has, by now, come to be viewed by the state authorities as grave enough offence to justify indefinite detention of especially young boys, including minors in gross violation of safeguards provided in the Juvenile Justice Act.

Rampant misuse of Public Safety Act (PSA) and other so-called ‘preventive’ measures in Jammu & Kashmir is old history. It would be no exaggeration to conclude that the extent of victimization of innocent persons and families under the Armed Forces Special Powers Act (AFSPA) is nowhere near the number of those suffering inhuman hardship on account of unbridled misuse of the PSA. Shabir Ahmad Shah, the leader of the Jammu and Kashmir Democratic Freedom Party, 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.
Human rights abuses have been a part of a campaign by the Indian army against Muslim Kashmiris, particularly since 1990. The abuse is manifested in the form of disappearances, torture, and the rape and molestation of Muslim women. Over the past two decades the number detained under the PSA range from 8,000-20,000. According to a latest fortnightly report publish by All Parties Hurriyat Conference, 93801 people have been killed from 1989 to 15th October 2012. Since then 120392 Kashmiris were arrested and 10,042 women were gang-raped or molested.
Innocent Kashmiri masses, especially the youth are undergoing tremendous psychological trauma due to continued repressive and suppressive policies of regime in IHK. As recently as in June 2012, eleven youth committed suicide as they could not further bear environmental distress prevailing in IHK, as the events like unwarranted arrests, killings, arson, torture and molestation by Indian security forces is a matter of routine there. Government functionaries of the state backed by Indian government are involved in human right violations in IHK and encourage the security forces to use coercive measures to suppress the people. Last year, Indian Supreme Court instead of convicting the soldiers involved in killing of a 12 year old boy asked the Army to carry out appropriate action against the culprits. It meant that the court shirked its responsibility, and as a result justice was delayed. People of Kashmir are indeed getting a raw deal from the Indian government.
Though there has been a marked decrease in the overall numbers of members of armed groups operating in J&K 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. 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. Amnesty International opposes on principle all such 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 Indian held Kashmir. 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. 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.
Amnesty international’s report is based on research after analyzing government and legal documents relating to over 600 individuals detained under the PSA between 2003 and 2010 in Indian held Kashmir. The report reveals how the PSA violates India’s international human rights legal obligations but also provides evidence of the ways in which administrative detention under the PSA continues to be used in Jammu & Kashmir to detain individuals for years at a time, without trial, depriving them of human rights protections otherwise applicable in Indian law. The AI has appropriately called the PSA as a device for ‘revolving door detention’. Security agencies including police never run short of ‘new grounds’ to put behind bars those whose detention has been invalidated by the judicial court and whose release orders have been issued. This state of affairs makes mockery of the pretension that Jammu & Kashmir is an ‘integral part’ of democratic India where supremacy of judiciary is an acknowledged fact of life. This concept is alien to the rulers as well as the ruled in this part of the world. That is the precise message behind the AI’s latest intervention that the impunity surrounding this particularly grave violation of human rights needs to be urgently addressed by the international community and the Government of Jammu and Kashmir.