Bandipora/Srinagar: “I cannot go there anymore,” Bilal* says in a feeble voice, when asked why he has stopped going to school. He turns around to hide his tears and looks intently at the tall rows of chinar encircling his house, from a cluster of windows. He then reveals: “They hung my trouser – all that I was wearing that day – on a walnut tree.”
Seventeen-year-old Bilal is a resident of Kralgund village in Kupwara district of Jammu and Kashmir. After a young militant commander, Burhan Wani, was gunned down by the security forces on July 8, 2016 in Anantnag (locally called Islamabad) in South Kashmir, youth across the Valley spilled into the streets with anti-India protests. More than 90 civilian protesters fell to bullets by winter that year, and hundreds of students, many of whom were minors, were detained under the draconian Public Safety Act (PSA).
Advocate Nasir Qadri, who spoke to The Wire, says the Act is used indiscriminately to stifle dissent. “Young boys have suffered particularly,” he claims. “From 2016 to February 2018, 1,150 people were detained under PSA. As many as 55-60% of the detenue were in the age group of 15 to 28 years.”
Zahoor Wani, senior campaigner, Access to Justice, Amnesty International India, told this reporter that PSA encourages detention over a long period under vague allegation, leaving the detainees without much scope for a fair trial. Amnesty International researched over 600 detentions under the PSA and studied police dossiers and other legal documents pertaining to the cases. In its report, “A ‘Lawless’ Law: Detentions under the Jammu and Kashmir Public Safety Act“, published May 2011, it concluded “…that instead of using the institutions, procedures and human rights safeguards of ordinary criminal justice, the authorities are using the PSA to secure the long-term detention of people against whom there is insufficient evidence for a trial or conviction”.
Anti-India protests peaked after the killing of Burhan Wani. Credit: Ibreez Ajaz/Flickr CC BY NC ND 2.0
Bilal’s case underlines that practice. “I had gone out for some work on August 3, 2016 at around 2:30 pm, when the situation here was normal. I didn’t know a rally was being held at some distance. Suddenly, as the crowd dispersed from the venue, the police jumped into action and started randomly arresting the passers-by,” Bilal said. He alleged that he and three youths from a nearby village were detained at the Kralgund police station and beaten.
“They (the police) tied me to a tree trunk after undressing me. They hung my clothes on the branches of a nearby walnut tree, and, then, for several hours, they left me in that embarrassing position, as if to gain amusement.”
At the time of his arrest, Bilal was a Class IX student at Government Higher Secondary School at Kralgund.
The Amnesty report said the PSA “effectively provides impunity for human rights violations”. It said, “Administrative detention facilitates torture and other ill-treatment as PSA detention orders are usually based on information obtained through confessions that are often coerced… In an attempt to stop the use of torture in police custody, the Indian Evidence Act makes confessions to a police officer inadmissible as evidence in a court of law. However, this protection does not extend to administrative or unofficial detention as there is no process before a court of law.”
Recently, a UN report on the human rights situation in Kashmir seconded the observations made by Amnesty. Among other things, the 49-page 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’, came down heavily on the Jammu and Kashmir Public Safety Act. It noted that the PSA has “created structures that obstruct the normal course of law, impede accountability and jeopardize the right to remedy for victims of human rights violations.” While calling for its repeal, the report further revealed that the Act was used to detain over 1,000 people, including children, between March 2016 and August 2017.
An Amnesty report said the PSA “effectively provides impunity for human rights violations”. Representative image Credit: PTI
Under Section 8 (i) of the Jammu and Kashmir Public Safety Act, 1978, a person can be detained for a period of three months, which can extend up to one year, if he is involved in any of the activities which is prejudicial to the public order. Under Section 8 (ii) a person can be detained for a period of six months which can be extended up to two years, if he is involved in any of the activities which is prejudicial to the security of the state. However, the Act also stipulates that the detaining authority – the district magistrate – has to subjectively satisfy himself that all constitutional mandates have been followed, once the police submits a dossier detailing the ground of arrest. But the regular criminal justice safeguards are seldom observed, say lawyers who have handled PSA cases.
This reporter tried speaking to several senior police officials in Srinagar for a comment unsuccessfully. However, India has officially dismissed the UN report as a “selective compilation of largely unverified information”.
Family provided documents to show detenue was a minor
After his detention, Bilal was lodged at the Handwara jail for 18 days without remand. During this period, a PSA detention order was quickly issued and he was moved to Udhampur Jail, Jammu, nearly 300 km from his home town. His family provided documents supporting his status as a minor but the police did not relent. He had to share his cell with hardened criminals sentenced for rape and murder. It took 30 days, a period marked by abuse, Bilal said, before the Jammu and Kashmir High Court ordered that he be shifted to Juvenile Home in Harwan, Srinagar.
Bilal’s is not the lone case where a minor discontinued his studies following an unlawful, abusive detention. In Bandipora, a post-graduate student, who strictly refused to be named, said he had remained at large for four-and-a-half months following the summer uprising of 2016. The police had offered a cash prize of Rs 40,000 for any information that would facilitate his arrest.
Now released on bail, the PG student recalls the tumultuous summer of 2016 when youth in small towns and villages were seething against the Indian state. “On July 9, 2016, the day after Burhan was ‘martyred’, the locals here had organised a prayer meet. I addressed the gathering that day. The next Friday, I once again exhorted the youth against the army’s excesses while leading a procession at Bandipora chowk. We no longer cared for our future. We wanted to fight ‘tyranny’, for our ‘azadi‘,” said the Bandipora resident, now 24, who languished in prison for nearly a year during 2016-2017.
The police succeeded in nabbing him when he returned home to attend his grandmother’s funeral. He was booked under PSA and taken to Kote Bhalwal Jail, Jammu.
Kote Bhalwal Jail in Jammu and Kashmir. Credit: Twitter
The youth alleged that the treatment meted out to Kashmiris at the Kote Bhalwal Jail was “the harshest”. “There was physical harassment, mental harassment. They forced us to cut grass and do other menial jobs the entire day; they stripped us often,” he alleged. According to him, the “non-Muslim jailors showed marked rancour towards them and treated them (Kashmiris) worse than Pakistani inmates”.
He was once taken hand-cuffed to write his examination at the Kashmir University. “I had sought permission from the J&K high court to appear for my semester exams at KU. On the HC’s direction I was shifted to Srinagar Central Jail. On the examination day, the police took me to the university hand-cuffed and stood beside me while I wrote my paper. I was so horrified; I could hardly write anything.”
‘Such incidents not unheard of’
Such incidents are not unheard of, confirmed Prof Syeda Afshana, professor at KU’s Media Education Research Center. “One of our students at MERC, who had been detained under PSA, was brought handcuffed to appear for an exam. The police took him to a secluded room. They did not allow even the invigilator inside. While the student was writing the exam with one hand, the constables had kept his other hand tied. The sight was appalling,” she told this reporter.
Noted lawyer Mir Shafkat Hussain, who has appeared as a counsel in several PSA cases, said the administration shows little concern for students booked under the Act. “In October 2017, Haseeb Nabi Khan, a 19-year-old student who was detained under PSA and placed at the Kote Bhalwal Jail, requested the administration to shift him to Srinagar Central Jail, as he had to appear for exams in the capital city. But the police’s response was curt. They said, ‘So what? On his examination days we will bring him to Srinagar.’ Can you expect a student to write his paper after travelling nearly 300 km minutes before his exam?” Hussain asked this reporter.
Hussain said that there was a gap of one year and three months between the date of the last alleged criminal activity involving Haseeb and the day he was booked under the Act. Since a detention under PSA can extend up to one year in activities prejudicial to public order, it cannot be invoked for activities which had been perpetrated more than a year ago.
“On September 24, 2017, Taufeeq*, then a Class 12 student in Baramulla, was called to the Baramulla police station. The police detained him and thereafter implicated him in a case registered under FIR 301/2014, FIR 293/2014 and FIR 147/2016. Although he was granted bail in the case on October 12, 2017, he was not released. The police kept him in custody illegally and then shifted him to Central Jail at Kote Bhalwal, to be detained under preventive custody.”
Hussain said that Taufeeq was a minor when the alleged criminal activities involving him took place in 2014 and 2016, respectively. He was released earlier this year, but on April 30, he along with two other youth from Baramulla were killed by unidentified gunmen. The police maintains LeT was behind their killing.
‘Outside the bounds of legal process’
Explaining the nature of illegal detentions, the Amnesty report had noted: “This period of ‘unofficial’ interrogation and detention occurs completely outside the bounds of legal process, and is not recorded on police or judicial records. Suspects are neither arrested nor issued with a PSA detention order. Their detention is therefore almost invariably illegal, and as such, arbitrary.”
In the case of the Bandipora youth, it took his family ten months of relentless legal struggle to get the PSA order quashed. Sources who are aware of the legal proceedings, said the police had “vowed not to release him for at least three years”. Highly placed sources told this reporter that the detainee was released after a minister in the then Jammu and Kashmir government telephoned a very senior police official of Bandipora.
“Initially justice Ali Mohammad Magrey had dismissed my petition, but a double bench of the J&K high court ordered my release. My case was taken up by advocates Bashir Ahmad Tak and Mia Qayoom, who is also the president, Kashmir High Court Bar Association,” the Bandipora student said in an interview with this reporter.
Ahmad*, a 16-year-old school student from Kulgam is another example of police’s obsession to book minors. “The police picked me in the night from my home. My phone had gone missing, and, apparently, some stone-pelter had used my SIM. We explained the same to the police, but they didn’t listen,” said Ahmad.
His father, Mohammad Yousuf, said his son was shifted from Kulgam to Ananatnag, and finally to the district jail in Kathua, Jammu. Ahmad was booked under PSA, an act not meant for minors. He was, at the time of his arrest, a Class VIII student at Iqra Public School, Kulgam. He dropped out of school soon thereafter.
When Mohammad Yousuf was asked whether he had shown his son’s age certificate to the police and protested their arresting his minor son, he scoffed the suggestion. “Kashmir hai, chalta hai (It’s normal in Kashmir),” he said nonchalantly.
The Amnesty report had observed that booking minors under PSA was not at all uncommon. “…state authorities continue to detain children by falsely registering their ages as above 18…” it said. The UN Working Group on Arbitrary Detention, which had studied ten PSA cases from J&K, said in November 2008 that the “detentions did not conform to the international human rights legal obligations by which India is bound”.
No compensation to the victims
J&K high court has ordered that those booked illegally be released, but does not offer compensation. Credit: Facebook
In spite of the lapses, the police is not questioned, says Wajid Haseeb, an advocate in the Jammu and Kashmir high court. “The courts, while pronouncing that the detention was illegal for a, b, or c reason, do not award any compensation to the victim. No explanation is sought from the police.”
This was also highlighted by Amnesty India in its report.
“The (J&K) High Court regularly quashes individual detention orders, but fails to challenge the abusive practices of serial detention used by the state authorities. Further, judges rarely call for investigation into allegations of illegal detention or torture despite their vast constitutional powers. Amnesty International is unaware of J&K High Court judgements that have directed action to be taken against officials for non-observance of court orders or that have ordered investigations into claims of torture and illegal detention of detainees.”
The Bandipora student, although he has resumed his studies, is not sure he would be able to cope up. “Those three days, when I was placed in a solitary confinement, haunt me,” he said, referring to his time at the Humhama centre, a juvenile home in Srinagar, where he was lodged alone. He had been shifted there after his detention under PSA was quashed. “In those 72 hours, if I had had a weapon, I would have killed myself,” he proclaimed.
Bilal’s family fears that he might harm himself. “He is in acute depression,” revealed Javaid, his cousin in Bandipora, where the minor has been sent “for a change”. Javaid’s family has an opulent apple orchard outside their house. Bilal’s father, a laboratory assistant in a higher secondary school in Kupwara, thought the serene environment would ease his son. But Javaid pointed out, “He doesn’t talk to us at all. One night, at around 10:30 pm, he fled on a scooter. When he returned, he had no recollection of what had transpired.”
*Names changed
Anando Bhakto is a New Delhi based reporter who covers politics and elections. He has been reporting from Kashmir since 2011. He can be contacted on Twitter @anandobhakto.