Arbitrary Detention As State Violence

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The JK State Advisory Council has reportedly approved the bill entitled “The Jammu and Kashmir Public Safety (Amendment) Bill, 2018”, and Governor’s assent has been received. One of the amendments is the deletion of a proviso to Section 10 of the Public Safety Act, 1978 (PSA) that barred the detention of permanent residents of JK in jails outside JK. The proviso to Section 10 was introduced through an amendment in 2002.

This amendment – passed in apparent secrecy – is both unlawful under the domestic and international law, and “political” to the extent that its purpose is clearly to deter otherwise lawful conduct with the threat of detention outside JK. But, this amendment must be understood within the larger context of state violence, of which arbitrary detention constitutes an important tool.

PSA forms a part of the ongoing state violence against the people of JK. Along with other forms of arbitrary and illegal detention, PSA operates in absolute disregard for the rule of law. By some estimates, up to 20,000 persons have been detained under PSA since 1990. Further, as per the JK government itself, around 8587 persons were arrested from July 2016 – January 2017, of which 522 were detained under PSA. All political parties have used PSA to curb freedoms and dissent (including the National Conference that is today critical of this amendment). Termed a “lawless law” by Amnesty International in 2011, PSA violates international human rights law and standards, specifically relevant articles of the Universal Declaration of Human Rights, International Covenant of Civil and Political Rights and UN General Assembly Body of Principles for the protection of all persons under any form of detention or imprisonment. The UN Working Group on Arbitrary Detention has in the past held specific detentions under PSA as illegal, and recently, on 14 June, the Office of the High Commissioner for Human Rights, in the first-ever report on JK, observed that PSA had been reportedly widely used by authorities in JK to stifle dissent, and recommended its amendment in line with international human rights law.

 Rampant use of PSA has not been effectively checked by the judiciary. Thousands of habeas corpus petitions have resulted in the quashing of PSA orders but the delay in judicial proceedings and the re-detention in fresh (and equally illegal) PSA orders have resulted in continued painful incarcerations of a majority of detenues. Rule 8 of the JK High Court Case Flow Management Rules, 2010 mandate that cases of habeas corpus are to be decided in 15 days. PSA cases take months before final decisions. The High Court, therefore, does not comply with its own rules.

A part of the punishment has been lodgment in jails at a considerable distance from the ordinary residence of the detenue. Prior to the 2002 amendment, JK detenues were regularly shifted to jails outside JK. Their experiences and hardships have been documented and they mirror the experiences of Kashmiri under-trials and those facing trials in different States in India. Following the 2002 amendment, the practice continued to the extent that detenues were transferred to jails within JK but far away from their ordinary residences. For example, detenues from Kashmir are mainly lodged in Jammu jails. This practice is contrary to Supreme Court rulings and yet JK High Court has rarely enforced such rulings and directed for lodgment close to the residence of the detenue.

The latest PSA amendment, therefore, forms a part of the larger violence of the State.

Spokesperson

Jammu Kashmir Coalition of Civil Society

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