What Amnesty International Missed in its Kashmir Report

BY SATYABRATA PAL

Amnesty International’s report on Jammu & Kashmir, ‘Denied’: Failures in Accountability in Jammu and Kashmir, reminds us of what we know but choose to ignore – that the Armed Forces Special Powers Act (AFSPA) confers an impunity on its personnel which is abused to commit the gravest violations of human rights, that civil courts cannot entertain charges against soldiers without sanctions from government which are almost never given, and the only recourse therefore is to the tender mercies of military justice which, like military intelligence, is usually a contradiction in terms.

The ground it covers is a via dolorosa, over which everyone who follows human rights to its crucifixion in that state must trudge. In 2012, for instance, when the UN Human Rights Council conducted India’s second Universal Periodic Review, the process through which every country’s record on human rights is assessed by its peers, the submission from the National Human Rights Commission included this:

“The Armed Forces Special Powers Act remains in force in Jammu & Kashmir and the North-Eastern States, conferring an impunity that often leads to the violation of human rights. This, despite the fact that India’s 2011 report on the Optional Protocol to the CRC states that “India does not face either international or non-international armed conflict situations”.”

Nothing has changed since then. By concentrating on AFSPA however, a blot though it is on Indian democracy, Amnesty’s report presents only a facet of the systemic faults that make it almost impossible for victims of human rights violations in J&K to get relief, or to punish the men who violated their rights.

The NHRC is the only body in the country that has a reasonably accurate tally of the number of deaths that take place every year in what are called encounters, and which tries to establish the truth in each case. Under its guidelines, police superintendents (SPs) must report to it within 48 hours any death in police action in their jurisdiction. Each case is then taken up by one of the five members, until all documents are received, at which point it is transferred to one of two division benches, with two members on each, which meet twice a week only on these “encounter killings”. J&K, however, is a blind spot for the NHRC, and where it has been able to do the least, for a number of reasons.

Army excluded

The problem is that the NHRC asks only for reports on deaths in police action. There is a legal reason for this, which brings no credit to our systems of governance. Unless the Army or paramilitary forces conduct a joint operation with the police, the SP simply receives a first information report (FIR) from them, but sees no reason to report deaths for which his force bears no blame. When J&K was at its most troubled, in the 1990s, the NHRC only received reports on a fraction of the deaths that took place, through sporadic complaints, some from NGOs which collated several cases, others from families of victims.

The NHRC is unable to get comprehensive reports from the Army or the paramilitaries because its powers vis-à-vis India’s armed forces are shamefully restricted by Section 19 of the Protection of Human Rights Act (PHRA). This lays down that the Commission can only act if it receives a complaint against them, when it may ask for a report from the Central government, and take a view on the reply it gets. If there is no complaint, and in J&K there were few because civil society was muzzled and the families terrified, there is no inquiry. And the inquiry cannot be as thorough as it is on encounter deaths or disappearances for which the police are responsible, because the NHRC can only act on what the Ministries of Defence and Home send it, which is whitewash stippled as typescript.

No other public servants enjoy this screening from the NHRC’s scrutiny, including police up against the Maoists in conditions at least as difficult as those where the armed forces are deployed. Section 19 of the PHRA is as obnoxious as AFSPA; both should be repealed, but are unlikely to be, because the armed forces will fight it tooth and nail. In a case pending for several years at the Supreme Court, the Commission has therefore urged it to read down the provisions of Section 19. However, in a PIL matter which it filed recently asking for a ruling that it had the power to demand substantive reports from the Central government on complaints against the Army, the court recently ruled against the NHRC. That does not bode well.

Kashmir body no solution

The Kashmiri families to which Amnesty spoke told it that after the State Human Rights Commission was formed they now had a body to which they could take their complaints. This is forlorn because though the J&K SHRC has been far more active than many others, which are moribund, it is also powerless to help. The state government ignores its recommendations, and on cases involving the armed forces, victims or their families get an entirely false hope that they can get justice through the SHRC, which, even without AFSPA, has no jurisdiction on complaints against central forces.

The sordid problem is that the government of J&K is so jealous of its special position under the Constitution that it sees the NHRC as a threat rather than an ally in trying to get redress and relief for the residents of the state. The PHRA lays down that it will apply to J&K only for subjects under Lists I and III of the Seventh Schedule of the Constitution. The state government’s interpretation of this provision is that the NHRC has no jurisdiction over its police, or the authority to call for reports either from them or from other civil servants on the subjects in List II. It takes this to absurd extremes.

In 2010, after the summer of rage in the Valley, the NHRC took suo motu cognizance of a report that investigated the deaths, and called for responses from the Centre and the state. Since the state government had given some financial relief to the families of the dozens of children who were killed or injured, the Commission asked for details, to determine if it should recommend that the Central government supplement it, and to get a sense of the grounds on which the state had acted, which would help it to vet the reports from the paramilitary force involved. To its astonishment, the state government refused, instead filing a writ in the J&K High Court in which it claimed that the NHRC was exceeding its jurisdiction, and asking that its proceedings be struck down as ultra vires!

Before this, on a case where the NHRC held the police responsible for a death and recommended relief, the state government took the same view, arguing that the Commission had no jurisdiction, and again took it to court. Faced with this self-defeating obstinacy, the Commission issued proceedings in which it argued that List II of the Seventh Schedule of the Constitution simply specified the subjects on which the state had the power to legislate. The Commission’s orders did not touch on its exclusive power to legislate on the police, they simply asked it to take action against delinquent policemen and give relief to their victims. Seemingly run by “litigious men whom quarrels move”, the J&K government took the NHRC to court on this as well.

More than AFSPA

On AFSPA, as Amnesty International notes, the Jeevan Reddy Committee found that “the Act, for whatever reason, has become a symbol of oppression, an object of hate and an instrument of discrimination and high-handedness”.   What it does not recall is that the committee recommended that AFSPA be repealed for this reason, but also felt that in the North-East, there was an “overwhelming desire of an overwhelming majority of the region that the Army should remain (though the Act should go)”.  No such distinction is made in J&K between the Act and its brutal wards, and the cure the committee prescribed – to transfer the powers of AFSPA to the Unlawful Activities Prevention Act – would be worse than the disease, spreading its contagion throughout the country.

Amnesty argues that “the continued use of the AFSPA violates India’s constitutional guaranteed rights to life, justice and remedy” and, by not addressing the violations committed under its cover, India has “failed its own Constitution”. These are strong words, though true, but AFSPA saps our constitutional structure in far more insidious ways. As a law that permitted the armed forces to be deployed in aid of civil authority, AFSPA as originally enacted conferred the power only on a state government to designate an area “disturbed”, after which the Army could enter. An amendment in 1972 extended the power to the Central government as well. The extraordinary implication of this is that states in which AFSPA applies could not be trusted to ask for Central help, which must therefore be foisted on them even if they do not feel the need for it. This amendment undermined the basic structure of the Constitution. On the one hand it makes elected state governments look like traitors if they decline to invoke AFSPA; when the army is deployed over their objection, it becomes an army of occupation.

Since the Centre’s decisions on whether AFSPA should be lifted invariably depend on the wishes of the Army, now openly voiced, it also gives the Army a veto on when, where and how long it should be deployed within the country, overriding the wishes of elected state governments. That is a subversion of democracy, and must be anathema. If for this government the Constitution is the only holy book, and if it is serious about cooperative federalism, it should repeal AFSPA for these reasons alone.

Satyabrata Pal is a former Indian diplomat. He served as India’s High Commissioner to Pakistan, and as a member of the National Human Rights Commission

http://thewire.in/2015/07/03/what-amnesty-international-missed-in-its-kashmir-report/

India: Arrest of 16-year-old Danish Farooq- WHY IS INDIA MEDIA SILENT ? #childrights #draconianlaws

Court lists bail matter for hearing on Monday

Danish Farooq detention case

KT NEWS SERVICE SRINAGAR, and Greater Kashmir

Dec 1: A city court today remanded Danish Farooq to police custody till December 9. Farooq, a ninth standard student arrested by Kral Khud police station in second week of last month under charges relating to stone pelting.
Sources in prosecution said the Chief Judicial Magistrate (CJM) has listed Farooq’s bail application for hearing on Monday. Advocate Babar Jan Qadri, the counsel for Farooq’s family, said the court has listed both bail and contempt matters for hearing on Monday.
On November 30, the Amnesty International (AI) expressed concern over “arbitrarily detention of 16 year-old, Danish Farooq’ and how the authorities are treating him as an adult rather than a child.

Family members of a class 9 student Danish Farooq of downtown here have accused police of detaining their ‘minor’ son in a jail in violation of juvenile norms. However police refuted the family claims, saying Danish is 16 years old and ‘hence not a minor’. The boy has been booked for ‘attempt to murder’ besides other harsh sections.
Danish was whisked away by police personnel of Kral Khud police station on Monday outside lower court here after he was granted bail in another case registered against him in Shaheed Gunj police station, said Danish’s uncle.
“He was first arrested at around 11:30 AM near Gole Market Karan Nagar on 19th of November by police personnel of Shaheed Gunj police station,” he said.
He said Danish was produced in court only after the family filed an application for his release. “We have never had tryst with courts and are unaware of procedures followed there, so we used to make rounds of police station everyday for his release.”
Advocate Babar Qadri, who represented Danish in the case registered in Shaheed Gunj police station, says the boy was slapped with harsh laws. “He was arrested under FIR number 77/2012 under sections 152 RPC, 138 RPC, 148 RPC, 147 RPC. He was rearrested by Kral Khud police station after being granted bail. He is a class 9 student of Tiny Tots School Fateh Kadal. He is a juvenile.”

POLICE VERSION
However, police in a press handout said, “Srinagar police had arrested a notorious stone pelter, Danish Farooq Wani son of Farooq Ahmad Wani resident of Chattabal at present Purshyar Habba Kadal, and presented him before the court. The stone-pelter is involved in number of stone pelting incidents including a petrol bomb attack for which a case FIR no: 26/2012 under section 307, 285, 336/RPC stands registered against him in police station Kral Khud. The accused was arrested and presented before the Hon’ble Court of Sub-Registrar, Srinagar. As per the records of the Board of School Education, the date of birth of the accused is 6/6/1996. The Court remanded him to police custody for not being a minor.”
In a statement, AI demanded his release. AI said Farooq was first arrested on November 19 under sections 152, 138, 148, and 147 of the Ranbir Penal Code (RPC). All charges relate to incidents of “stone-pelting.” After three days of arbitrary detention in police custody without any legal grounds, he was produced in court, which ordered his release on bail. Before any release Farooq was re-arrested on November 23 under sections 307, 285, 336 of the Ranbir Penal Code (RPC ) for “attempt to murder” for his alleged involvement in a petrol bomb attack. According to latest reports, he remains in police custody and it is unclear when he will appear before the local court in Srinagar.
“Farooq’s family has been denied the right to communicate with him or see him, and is currently unaware of his condition. A police representative has told Farooq’s family that Farooq will not be presented in court within the required time period set by law, but will keep him in custody for two months. He has not had access to a lawyer during this time,” AI statement said.
The statement added that India is legally obliged, under the UN Convention on the Rights of the Child (UN CRC), which it ratified in 1992, to establish laws and procedures specifically applicable to children, and to define minors as all individuals younger than 18. “This means that India must ensure no individual younger than 18 years of age is arrested, detained, or tried under ordinary criminal law without the safeguards meant to protect children. However, J&K Juvenile Justice Act, 1997, treats boys over the age of 16 as adults, in violation of the UN CRC and international human rights law. Amendments to the Juvenile Justice Act are currently being discussed by the J&K Legislative Assembly. If these amendments are successful, all children below 18 years of age will be treated as juveniles,” the statement said.
It added that Farooq is a child under an international treaty that is binding on India, and so the manner of his arrest and detention must be compatible with this treaty.
Further, the International Covenant on Civil and Political Rights, which India has also ratified, prohibits the arbitrary deprivation of liberty and among other things provides that states party – including India – must ensure that any person being arrested is brought promptly before a judge or other officer authorized by law to exercise judicial power, the statement viewed.
Amnesty International called on the J&K police to end Farooq’s “arbitrary and unlawful detention, and either release him or produce him immediately before a magistrate”. “If a court decides that he has to remain in detention, Farooq must be moved to a juvenile detention home and be granted all the safeguards and protections guaranteed to children by the CRC and for judicial proceedings to go forward in accordance with international human rights law. He should also be granted, without delay, access to his family, and they should be kept informed of his whereabouts and condition, as well as access to a lawyer of his or his family’s choice,” the statement said Amnesty International also urged the J&K authorities to halt the practice of arbitrary detentions in the state, in particular of children.

Amnesty International reiterated its call to the J&K government to amend the Juvenile Justice Act to bring it at par with the CRC.

Choti Azadi for Kashmiri Women

Friday, 31 Aug 2012 at 02:47

Raheela Saleem Narchoor

The Kashmir issue is, essentially, my own story. During my stay outside Kashmir I, often reluctantly, have been involved with many conversations and discussions on Kashmir. Almost all people with whom I converse believe that Kashmiri women have no say about the region they belong to. They have been ignored in taking active part in almost all discussions ranging from human rights violations to religion issues. “Why don’t Kashmiri women speak about their experiences? Why are they silent?” There hasn’t been a single day when I am not faced with questions like these.

As a native Kashmiri, I accept the criticism of those who look at Kashmir from the outside. But how can I make a simple point in a rabidly patriarchal debate? For instance, not a single male power-holder, like the leaders in the central government or the leaders in the state government or the leaders of the separatist parties or the male activists of all shades of opinion and ideologies or even the much discredited male symbol of the state–the uniformed security personnel–No ONE, No MALE–has ever asked a Kashmir woman this simple question: “What is your position/stand/opinion on self-determination?”

Unfortunately, this absence of women’s voices prevails in most social, legal, political and religious discourses. In Kashmir women are considered uninterested in politics or because the gentleness of women’s nature is presumed not to have a political opinion. Overall, women in Kashmir are considered less capable of taking part in the political game. All these ideas add up to distance and, indeed, exclude women from political discussions. Even the male political discourses uses “naturalistic” arguments derived from values and rules associated with the public and private sphere.
While Islam is characterised as a strategy of exclusion used by mainstream political entities in most Muslim countries, Islam has been used, paradoxically, by women of Kashmir as a strategy of resistance. Kashmiri women use Islam as a strategy to minimize the effects of seclusion. The practice of covering whole body, as per religious mandate, by activists of the prominent women separatist party, Dukhtaran-i-Millat (DM), of Kashmir may be interpreted as the use of Islam to conquer the public sphere. By drawing attention to their devoutness of faith, Kashmiri Muslim women have been able to breach the barriers to their participation in the public sphere. For many other women, the affirmation of their obedience to God frees them from the ascendancy of the men who hold positions of power in their lives. Islam, therefore, becomes a strategy for some women to participate actively in political system. For instance, in Kashmir, the main women separatists parties like Muslim KhwaMuteen Markaz (MKM) and DM are based on the Islamic mandates. Though these political groups carry their own opinions, these opinions are mainly based on certain pre-conceived notions of religion.
The use of religion as a strategy of resistance is seen as a double edged sword, as it allows immediate political recognition and an apparently to legitimize incursion into the male public sphere. However, using Islam as a strategy of resistance may have a good impact on Muslim women participation in politics in various Muslim states;but, in conflict ridden situations like Kashmir it may have devastating consequences. This may radicalise the ideologies held by various women due to the peer group pressure. Setting goals based on particular ideology do not give chance to reflect from secular and democratic perspective. For instance, the proclamation of the DM to fight for equal rights within the frame of Islamcreate an atmosphere of biasness and partiality for the inclusive participation of women from all three parts of Jammu and Kashmir. Similarly, the inclination of MKM towards Pakistan, solely because Pakistan is a Muslim state, makes one to ponder the outcome of the secular political mandate of such organisation.
In limited terms the mainstream discussion on Kashmir is restricted between Kashmir men and the Indian government. Womenhave always seen from the prism of victimization,ignoring the crucial part of their political consciousness and, therefore, have been isolated from the mainstream politics.The situation of Kashmiri women will not improve by just labelling them the worst victim of violence; they need to be involved in almost all political negotiations on Kashmir. Therefore, great deal needs to be done to make the women politically visa-vis secularly active in Kashmir. As long as the Kashmiri women’s movement does not strengthen and widen its secular and political base, the women of Kashmir will never be free from the dictate of a conservative society and will continue to suffer intellectually as well as morally.
The author is working with Amnesty International. She can be mailed at Raheela.Narchoor@amnesty.org.in

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Doctors Without Borders Pull Back in Kashmir

May 7, 2012,

By NIDA NAJAR, India Ink

Rafiq Maqbool/Associated Press PhotoShaheen, wounded in an earthquake, waits for medical help at Jabla village, 69 miles north of Srinagar, Jammu and Kashmir, Oct. 9, 2005.

Médecins Sans Frontières shut down its operations in the Kupwara district of Kashmir last month and will significantly reduce its activities in the valley as a whole, cutting a staff of 100 by more than half.

The group, known in English as Doctors Without Borders, has operated a mental health program in Kashmir since 2001, its longest-running India project, and its doctors also provide services like immunizations and postnatal care in the area. It began working in Kupwara, which is on the Indian border with Pakistan, in 2005 after an earthquake there.

“The reason that we left Kupwara district really is because of the necessary downscale in our operation,” said J.J. Fisher,  the project coordinator for MSF Holland in Kashmir, who said that the group was trying to conserve resources for medical treatment in case of an emergency. “We do see there are still needs in the area to be met.  It’s not that we’re saying that everything’s perfect in Kupwara district. But sometimes we have to make difficult decisions.”

As violence has lessened in Indian-administered Kashmir recently, the government plans to reduce security bunkers in the capital of Srinagar, there has been a push to lift an unpopular act that gives the armed forces special powers in the region, and tourists have flocked back. Local officials are making plans for new development and improvement projects.

Still, MSF’s departure leaves a vacuum in Kupwara and the Indian-administered Kashmir Valley as a whole, which is still severely in need of mental health services, experts say. Nearly one in five Kashmiris is depressed, according to the psychiatrist Mushtaq Margoob, who published a study in 2006 estimating that almost 60 percent of Kashmiris have witnessed traumatic events.

Since MSF’s departure last month, Kupwara has only one psychiatrist in the district hospital for its population of almost 900,000. Kashmir as a whole is short on psychotherapists, who are trained counselors rather than full-fledged doctors who prescribe drugs. Government hospitals have few positions for psychotherapists because drug-based psychiatry is favored.

Kupwara is a largely poor, rural district and one of the most heavily militarized areas in India-administered Kashmir, owing in part to the Border Security Forces that police the Line of Control separating the areas controlled by India and Pakistan.  The literacy level is below the national average, and one of the greatest challenges for MSF staff at first was spreading awareness of concepts like depression.

Some mental health professionals say their services are still desperately needed.

“I have absolutely no idea why they are leaving Kupwara,” said Dr. Arshad Hussain, a psychiatrist based in Srinagar who worked with MSF in Kupwara at the beginning of his career.  “There are absolutely no mental health facilities in all of Kupwara.”

Although it has closed its Kupwara activities, MSF has started a new mental health program in one of the hospitals in Baramulla and plans to expand to nearby Sopore, two towns in central Kashmir with a heavy military presence and strong separatist sentiment in the local population, which MSF says leads to a disproportionate amount of violence compared with the rest of the valley.

MSF was lauded by local physicians for educating the public as well as doctors about mental heath, and also for training staff in counseling in an area where medication is often seen as the key treatment for a traumatized population.  Before MSF entered the valley, the concept of psychotherapy was virtually nonexistent, MSF officials say.

But even trained counselors have difficulty finding jobs now that MSF has pulled out.

Zahoor Ahmad Hawar, a sociologist with a bachelor’s degree in mechanical engineering, worked for MSF for seven years and went to Holland for a psychotherapy certificate degree from the Netherlands Institute of Psychology.  He left MSF in August and now has a part-time job at a private engineering college. “Every district hospital, there should be one psychiatrist there, but there is no psychotherapist,” he said.

The large number of trained counselors with nowhere to work is the greatest loss from MSF’s departure, other doctors say. “It’s not just MSF as an aid organization that we have lost,” said Dr. Hussain.  “It’s that skilled manpower that we have lost.”

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From behind barbed wires in Kashmir

DIVYA TRIVEDI, The hINDU

Young Kashmiri rappers find their creative dissent muffled and face the axe if they step out of line

ENTERTAINING WITH PURPOSE:Zubair Magray has become an independent artiste. He shot to fame when his song ‘Azadi’ uploaded online was forced to be taken down by the police.

It is not unusual that rap and hip-hop find favour with budding musicians of Kashmir. World over, starting from the inner city lanes of New York to the Middle East, these genres of music have been creative tools of resistance. Through popular culture, a critique of perceived discrimination takes place, dissent is voiced and racism and exclusion get challenged. Misrepresentation is also taken to task.

These genres do not exist in isolation but are embedded in and born from the socio-political environment of a society. For many years, youth have taken recourse to these global art forms to engage with and reflect the reality they see around them. A few years ago, this trend took shape in the Kashmir valley, where youngsters tried to articulate what they saw around them through their music.

Soon Renegade, MC Youngblood, The Revolutionary, Mista Shais, M1B, Haze Kay and MC Kash became popular stage names of young Kashmiri men who created music that came straight from the soul of the land and found resonance with the public, not only in the valley but across India. MC Kash or Roushan Illahi is a rapper and emcee who released a song, ‘I Protest‘ in the Kashmiri unrest of 2010 when hundreds of people were killed in paramilitary action. He has a huge fan following on the social networking sites with thousands of followers on Facebook, Twitter and ReverbNation. His popularity notwithstanding, his studio was raided by the police and henceforth he has been unable to find a place to record his songs. But he continues to sing, sometimes about love also, says Shayan Nabi, his manager.

Haze Kay or Zubair Magray used to perform with Roushan but has become an independent artist since he moved to Pune to pursue further studies. He shot to fame when his song ‘Azadi’ uploaded online was forced to be taken down by the police who were not amused by the lyrics.

He makes his own music and releases it through his own production house. His music was labelled anti-government. “I am living and studying in Pune, which is in India, how am I anti-government? As an artist, it is my duty to respond to the reality around me and express it through the art form,” says Zubair.

Other vibrant artists have now stopped making any music whatsoever. If a song has the words protest, stones or Kashmir, the police are quick to swoop down to the studios and threaten the producers to discontinue the recording. They are instead offered free promotion if they choose to sing about love and police-people harmony. A number of artists have stopped making music altogether due to the constant threats.

Only those artists, who either have some influence or sing about non-political subjects are able to survive in Kashmir today. A healthy non-violent mode of resistance guaranteed in any free society is thus being stifled even before it can take complete shape

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Set aside AFSPA. What about PSA, Mr Omar?

The J&K Public Safety Act is being misused rampantly to arrest young boys. Baba Umar reports

Catch them young Nearly 5,500 stone-pelters have been arrested since 2010 Photos: Abid Bhat

WHEN Mohammad Rafiq Sheikh, a Class X student of DAV Public School in Srinagar, was picked up by unidentified men on 2 February, he couldn’t have imagined the ordeal that awaited him.

Initially, Rafiq was detained at Zakoora Police Station, where he was booked for eve-teasing. He was granted bail on 7 February, but when the order was served to the SHO, the police claimed that Rafiq was, in fact, being held in Shergari PS, where he was being charged with stone-pelting. The drama was repeated when Rafiq was shifted to Nigeen PS and back to Shergari PS and Srinagar Central Jail before he was shifted on 29 February to Udhampur Jail in Jammu, where he has been detained under Jammu & Kashmir Public Safety Act (PSA).

“We deny the charges. At the most, my son should have been charged for eve-teasing,” says Rafiq’s mother Shakeela, who has filed a habeas corpus petition in the Srinagar High Court seeking his release. “When my husband tried to expose the SHO’s high-handedness, Rafiq was charged for stone-pelting and slapped with PSA.”

The Armed Forces Special Powers Act (AFSPA) may hog all the headlines, but the PSA, which was introduced by Chief Minister Omar Abdullah’s grandfather Sheikh Abdullah in 1978, is the most misused Act currently in force. Under this Act, which is being touted as a deterrent against pro-Azadi dissent, one can be detained on such flimsy grounds as falling in love or complaining about cops’ high-handedness.

Even though the state Assembly passed a Bill in April to amend the Act, under which no person below the age of 18 should be slapped with PSA, Rafiq continues to languish in jail. While Rafiq’s educational certificates prove that he was only 17 when he was detained, the police’s grounds of detention claim that he was a “19-year-old stone-pelter who has affiliation with the separatist Geelani group”.

Shakeela says she couldn’t secure Rafiq’s release because she and her husband Abdul Rashid Sheikh, a labourer, were unable to meet the police’s bribe demand. Rafiq’s friend, who was also detained on the same charges, walked free after his family coughed up the money.

The family of Umar Farooq, 15, admit that they paid Rs 30,000 through intermediaries at different police stations to secure his release. “Both were friends and were in contact with a girl for one month on their cell phone,” says Umar’s grandfather Ghulam Qadir Sheikh. “It’s all about the money. We paid Rs 30,000 to various cops.”

Umar was detained on 3 February and taken to Zakoora PS. After finding Umar’s whereabouts, his father Tariq Ahmad Sheikh, a labourer, was told to rush to Shergari PS where Umar was charged for stonepelting. Despite a bail order, he was shifted back to Zakoora PS where a case of obscene acts was slapped. He was later released on 27 February. In this case too, the grounds of detention show Umar as a “19-year-old who had pelted stones and rioted” in 2008 and ’10. Umar’s case is being heard at the Srinagar High Court, which has stayed the slapping of PSA on him.

“Cases like these are rampant in Kashmir,” says Mir Shafqat Hussein, a prominent lawyer who claims to have handled many PSA cases in the past two decades. “You can gauge the high-handedness of the police in a case in which a boy was slapped with PSA because he had an affair with the daughter of a police officer.”

Like AFSPA, where some provisions offer impunity to erring soldiers leading to rights violations, PSA too has a provision, Section 22, which protects authorities from prosecution, even in cases where PSA has been abused. The misuse of PSA seldom leads to the victims getting any compensation.

“So far, there hasn’t been a single case in which compensation was given to victims after PSA misuse,” says Ishfaq Tantray, a journalist who has been covering legal cases in Kashmir for years. “Once a victim’s PSA is quashed, the order often reprimands the detaining authority for non-application of mind while preparing the grounds of detention.”

When medical representative Khalid Farhat Shah, 26, of Sopore was detained on 22 May 2009, he was charged under the Arms Act. A bail order issued on 25 June wasn’t entertained. The police filed a detention order on 18 January 2011, which was challenged by his mother Ateeqa Begum in the Srinagar High Court, which quashed the order. But instead of releasing him, Shah was shunted around various police stations until another detention order under PSA provisions was slapped, on the very same grounds.

The case of Mubarak Ahmad Wani, 33, of Bangidar in Anantnag, is even more shocking. He remains in detention under PSA since March 2010 despite the HC quashing two of his previous detention orders.

In reply to an RTI filed by lawyer Babar Jan Qadri in November 2011, the government revealed that 5,503 people have been arrested/detained in stone-pelting cases since 2010. But rights activists claim that more than 20,000 people have undergone detention under PSA in the past 20 years. The RTI reply also revealed that 5,468 persons were released after courts quashed their detention, or were granted bail, putting a question mark on the ‘grounds of detention’ that the police had prepared.

However, the RTI reply threw up another interesting fact. It revealed that all detainees have come out either on bail or after their detention was quashed by courts and no stone-pelter was given amnesty, which was publicly announced by Omar. The chief minister had announced amnesty to almost 1,200 stone-pelters on 28 August 2011, saying it was an Eid gift.

MEANWHILE, AMNESTY International’s 2011 report on the misuse of PSA has thrown up chilling figures on how the Act has triggered serious rights violations in the state.

Catch them young Nearly 5,500 stone-pelters have been arrested since 2010

Amnesty concluded that the number of persons detained without trial in J&K is 14 times higher than the national average; the conviction rate for attempt to murder is eight times lower, for rioting approximately eight times lower and five times lower for arson. It also reported that of the 600 cases it had studied, 290 detainees were booked in FIRs that included Arms Act offences. But only a handful of the 290 would eventually be convicted.

“The low rates of conviction in J&K are not necessarily indicative of a failing criminal justice system,” says the report. “The percentage of convictions in all cognisable (relatively serious) penal code offences in J&K (50.9) is higher than the corresponding national figure (42.6).”

Amnesty’s India Country Specialist Govind Acharya told TEHELKA that just like AFSPA, PSA should be repealed “and with it the system of administrative detention, releasing all detainees or charging those suspected of committing criminal acts with recognised offences and providing fair trials in a court”. “We share the view of the Supreme Court, which called the PSA a ‘lawless law’ in 1982,” says Acharya.

However, the government says PSA can’t be done away with at least until Kashmir becomes normal again. “PSA isn’t only used in maintaining law and order but to stop timber smuggling too,” says Law Minister Ali Mohammad Sagar. “We have already amended the PSA in which the detention period has been reduced to three months.” About Section 22, which prohibits prosecution of officials even when the Act is abused or misused, he says such provisions can be amended at the appropriate time.

As the debate over PSA rages on, the technicalities involved do not make sense to parents like Shakeela. “Instead of giving my son a fair trial, the government continues to dodge the rule of law by invoking PSA,” she says. “His life is over. By imprisoning my son hundreds of kilometres away, the government is punishing all of us.”

Baba Umar is a Correspondent with Tehelka.
babaumar@tehelka.com

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SC Has Put Crisis Laws Before Right To Life: Bar #Kashmir

Srinagar, May 03: Voicing apprehensions that the Supreme Court’s ruling on the Pathribal killings could leave a negative legal and political impact, the High Court Bar Association has said that the apex court had given precedence to emergency laws over the universal and constitutional right to life.

The Bar Association echoed the Amnesty International in describing the ruling as a severe setback for the victims of human rights violations in Kashmir.

“The ruling will give forces immunity and exemption from civil prosecution,” Bar general secretary, GN Shaheen, said at an HCBA meeting held to discuss the supreme court judgement yesterday holding government sanction necessary for action against forces personnel deployed in areas under the AFSPA.

“The forces will use this law for human rights violations and extra-judicial executions,” he said.

“The ruling will give the forces the right and authority to decide whether to have the accused personnel tried in civil courts or in courts martial,” The HCBA said.

“People in Kashmir have a bitter experience over the past twenty years with respect to alleged killings by forces personnel. No one has been punished or tried by court martial. No one has been brought before the people, or the victims informed (in case of punishment of the guilty).

“The ruling will boost human rights violations in Jammu and Kashmir, and have a long-lasting impact,” the HCBA added. Observer News Service

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Kashmir draconian laws, Kashmir human rights

 

 26 September 2011

As the session of the Jammu and Kashmir legislative assembly opens in Srinagar, Amnesty International is writing to all members of the legislative assembly (MLAs) to raise human rights concerns in the house and ensure that such issues are not ignored during the session.

Although there appears to be a consistent decrease in the overall numbers of members of armed groups operating in Jammu and Kashmir (J&K), human right violations continue to remain a significant and widespread concern in the state.

Amnesty International calls on all MLAs to raise human rights issues during the assembly session and call upon the state government to take immediate action required to remedy the situation. In particular, Amnesty International asks you to raise the specific issues below. While not an exhaustive list of human rights concerns in the state, discussion on these would indicate the commitment to human rights of the state legislative assembly and be an important step towards improving the human rights of all residents of Jammu and Kashmir.

 

Investigation into unmarked graves

Over 2700 unmarked graves have been identified by an 11-member police investigation team of the State Human Rights Commission (SHRC) in four districts of north Kashmir.

Despite claims of the local police that the graves contained dead bodies of “unidentified militants”, the report points out that 574 bodies have been identified as disappeared locals. The police report concludes that there is “every probability” that the remaining over 2100 unidentified graves “may contain the dead bodies of [persons subject to] enforced disappearances.”

On 16 September 2011, the SHRC directed that the bodies should be identified using all available means and techniques including DNA profiling and dental examination and other forensic pathology techniques. However recommendations of the SHRC have often been ignored by the state government in the past. It is therefore imperative that MLAs call upon the government to ensure that sufficient resources are provided on an urgent basis for such identification by an independent body.

The state government must also ensure that all past and current allegations of enforced disappearances are promptly, thoroughly, independently and impartially investigated and that, where there is sufficient evidence, anyone suspected of responsibility for such crimes is prosecuted in proceedings which meet international fair trial standards.

Repeal of the Public Safety Act

In March 2011, Amnesty International released a report in Srinagar calling for an end to administrative detentions in Jammu and Kashmir and a repeal of the Public Safety Act (PSA). In the previous session of the assembly the Chief Minister claimed that the report would be studied thoroughly, the suggestions made in it would be examined carefully and amendments carried out in the law.

In mid July, state Law Minister Ali Muhammad Sagar reportedly told a press conference in Srinagar that the Law Department had approved amendments in the PSA. In August officials from the Home department confirmed that they were examining the issue, but Amnesty International is unaware of any legislation that has been introduced by the Government to amend or repeal the PSA. Detentions under the PSA continue on a regular basis and a number of political leaders and activists remain detained without charge of trial.

Amnesty International urges MLAs to call upon the state government to inform the assembly of the steps undertaken towards repeal of the PSA, along with any time frame that may have been set for it.

Amendment of the Juvenile Justice Act

A violation of human rights of particular concern noted in the Amnesty International report was the detention of children under the PSA – in particular boys above the age of 16 who are considered adults as per the Juvenile Justice Act (JJA). This is inconsistent with both the central juvenile justice legislation and the United Nations Convention on the Rights of the Child, to which India is a signatory.

On 20 April 2011 at a workshop on the Juvenile Justice System in Udhampur, the Chief Minister indicated that the gaps in the JJA would be filled and asked the Law Department to look into this issue. Officials of the Social Welfare department and the Law Department were also quoted in press reports in late June stating that a new legislation on juvenile justice was likely to be tabled in the September session of the state assembly.

These words must be translated into action. Amnesty International calls upon the MLAs to ensure that legislation is introduced to amend or replace the JJA, in order to bring it in line with international law and standards. In June 2011 Amnesty International initiated a global petition calling upon the J&K government to amend the JJA. Over 10,600 members and supporters of Amnesty International worldwide have signed the petition which has been sent to the Chief Minister.

The amendment of the JJA would be a step in the right direction, and its effective implementation – in particular the expeditious formation of Juvenile Boards / Courts in all districts – will ensure that all children and teenagers in Jammu and Kashmir in conflict with the law will have an opportunity to reform and be rehabilitated.

De-notification of “disturbed areas”, repeal of Disturbed Area Act and Armed Forces Special Powers Act

Press reports indicate that the state government is seeking to de-notify parts of the state previously notified as “disturbed areas” under the Jammu and Kashmir Disturbed Areas Act (DAA). The Indian Home Minister has also stated that the areas de-notified as disturbed areas by the state government would also be de-notified by the central government with respect to the Armed Forces (Jammu and Kashmir) Special Powers Act (AFSPA).

This would be a welcome first step to remove the operation of the DAA and AFSPA from parts of the state. However MLAs must further call for a repeal of both legislations as they violate international human rights law and standards.

ENDS/

Public Document

International Secretariat, Amnesty International, 1 Easton St., London WC1X 0DW, UK http://www.amnesty.org

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