From: Habib Yousafzai <yousafzai49@gmail.com>
Date: Tue, Mar 22, 2011 at 3:23 AM
Subject: [bangla-vision] Amnesty slams 'arbitrary' arrests
To: Bangla-Vision <bangla-vision@yahoogroups.com>
Amnesty slams 'arbitrary' arrests
Govt Using PSA As Parallel Criminal Justice System
ARIF SHAFI WANI /WASIMKHALID
Srinagar Mar 21: Calling for an imme¬diate end to arbitrary arrests and repeal of the controversial Public Safety Act (PSA) in Jammu and Kashmir, interna¬tional human rights watchdog- Amnesty International on Monday said the state government has been using PSA to create a parallel or informal criminal justice system. The Amnesty said that 20,000 persons in the state have been detained under PSA over the past two decades and recommended to the Government to carry out an impartial probe into the alleged abuses against the detainees and their families.
The global human rights body asked the Government of India to extend invi¬tations and facilitate the visits of the UN special rapporteur on torture and the Working Group on arbitrary detentions to the Valley.
"Jammu and Kashmir authorities are using PSA detentions as a revolving door to keep people they cannot or won't convict through proper legal channels locked up and out of circulation. We have estimated the number of people detained under PSA over the past two decade ranges from 8000 to 20,000 with 322 reportedly held from January to Sep¬tember 2010 alone," Amnesty Interna¬tional South Asia member, Bikramjeet Batra told reporters while releasing here the 70 page report, 'Lawless Law, Detentions under the Jammu and Kash¬mir Public Safety Act'
He was flanked by Ramesh Gopalakrishnan and South Asia Director Amnesty International Madhu Malhotra. The AI team said they met the Home Secretary GK Pillai and impressed upon him to release the PSA detainees in Kashmir. "He (Pillai) told us that Home Ministry had instructed the State Government to release the detainees booked under PSA. However, he told us that the State Government has its own set of law and order problems. So the onus to release the detainees solely lies with the State Government" Batra said.
Incidentally, the PSA allows the police to detain a person up to two years without charge or trial if he or she is deemed a "threat" to the state.
The report documents how the PSA is used to secure the long term detention of individuals against whom there is insufficient evidence for a trial. It also reveals how the law "violates India's international human rights obligations".
Besides, the report also provides evidence of the ways in which administrative detention under the PSA "con¬tinues to be used in the state to detain individuals for years at a time, without trial, depriving them of human rights protections otherwise applicable in Indian law".
The report is based on a research conducted by an Amnesty International team during a visit to Srinagar in May 2010 and subsequent analysis of government and legal documents relating to over 600 individuals detained under the PSA between 2003 and 2010.
"Hundreds of people are being held each year on spurious ground with many exposed to higher risks of torture and other forms of ill treatment," Batra said.
The report shows that detainees under PSA include political leaders, activists, suspected members or supporters of armed opposition groups, lawyers, journalists and protesters, including children. It read that often they are picked for 'unofficial' interrogation, during which they have no access to a lawyer or their families.
The team said the cases studied by the Amnesty International indicate the authorities in JK have used the PSA to create a parallel or informal criminal justice system.
"The cases studied by us indicate that the authorities in J&K have used the PSA to create a parallel or informal criminal justice system—bypassing the regular criminal justice system to secure the long-term detention without trial of individuals depriving them of human rights pro¬tection otherwise applicable in Indian law."
The Amnesty teams also said that the PSA was even slapped against the street protesters.
"Despite an apparent shift in the nature of unrest, Jammu and Kashmir authorities continue to rely on the PSA rather than attempting to charge and try those suspected of committing criminal acts," said Batra. "The PSA undermines the rule of law and reinforces deeply held perceptions that police and security forces are above the law. The PSA which allows police to detain individu¬als with little evidence and no requirement for prompt judicial review of that evidence, is not only used against the political activists but used by local police officials to detain suspected criminals who appear to have little or no involvement with the political struggle or the armed movement for independence," the team said.
The report stated that the rate of conviction for pos¬session of unlawful weapons- one of the most common charges brought against alleged supporters or members of armed groups- is 0.5 per 100 cases: over 130 times lower than national average in India.
Similarly, it said the conviction rate for attempt to murder in the state is lower than the national average, seven times lower for rioting and five times lower for arson. In contrast, the number of persons in adminis¬trative detention without trial in Kashmir is 14 times higher than the national average.
Batra said the Amnesty International shows how the implementation of the PSA is often arbitrary and abu¬sive, with many of those being held having committed no recognizably criminal act.
"The Indian Supreme Court has described adminis¬trative detention, including the PSA, lawless law. The PSA has become precisely such a lawless law largely sup¬planting the regular criminal justice system in Jammu and Kashmir. Those held under the PSA can face up to two years in detention. But the Jammu and Kashmir authorities consistently thwart high court orders for the release of improperly detained individuals by issuing successive detention orders. Many detainees are thus trapped in a cycle of detention," Batra said.
He said the PSA provides "immunity" from prosecu¬tion for officials operating under it.
"Those being held have no legal access for represen¬tation and cannot challenge their detention in any mean¬ingful way," Batra added. He said when the detainee is released he is not given compensation for the wrongful detention they have endured and never receives justice for the torture and ill treatment.
However, Amnesty acknowledged the right of the Indian authorities to defend and protect their population from violence. "But it must be done while respecting the human rights of all concerned and abiding by interna¬tional law," Batra said.
"The use of administrative detention does not con¬firm to international human rights legal obligations and agreements that the Indian government is party to," he said, adding, "The Indian government must ensure that Jammu and Kashmir authorities repeal the PSA".
On Mian Qayoom
The team said it will be taking up the cases of Jammu Kashmir High Court Bar Association (JKHBA) president Mian Abdul Qayoom and its vice president, GN Shaheen with the United Nations Working Group on Arbitrary detentions. "Both of them have been detained after booked under PSA without any evidence," Amnesty said. "We will be taking other cases as well".
'REPEAL BLACK LAW'
The Amnesty report had called upon the Jammu Kashmir Government to repeal the PSA and end the system of administrative detentions in the region, charg¬ing those suspected of committing criminal acts with recognizably criminal offences and trying them in a court of law with all safeguards for fair trial. It said the Govern¬ment should end practices of illegal and incommunicado detention and immediately put in place safeguards to ensure that those detained are brought promptly before magistrate, provided with assess to relatives, legal coun¬sel and medical examinations, and held in recognized places and detention pending trial.
The body asked Government of India and J&K government to carry out an independent, impartial and com¬prehensive investigation into all allegations of abuses against detainees and their families, including allega¬tions of torture and other ill treatment, denial of visits and adequate medical care, make its findings public and hold those responsible to account.
The Amnesty urged Government of India to extend invitations and facilitate the visits of the UN special procedures including particularly the UN special rap¬porteur on torture and the Working Group of Arbitrary Detention.
INEFFECTIVE' SCREENING COMMITTES
The report maintains that though the Jammu and Kashmir government has constituted Screening Committees to review the detention of individuals under the PSA, "however, these committees comprise of repre¬sentatives of the Home Department, police, intelligence agencies, army and other security forces whose delibera¬tions are not public—in effect, allowing the executive agencies to decide the fate of detainees. The screening committee has no legal basis and are purely executive bodies," the report states.
Elaborating, it states that the screening committees exist both at the State and district level, the latter comprising the district magistrate and local police and intelligence agencies. "However, the cases studied by the Amnesty International demonstrate the impor¬tant role that the Criminal Investigation
Department (CID)—the intelligence arm of the police headed by the a Director General of Police (DGP) and made up of the Special Branch Kashmir/ Jammu and Counter Intelli¬gence Kashmir/ Jammu play in ordering or extending detentions,"
FULFILLING TARGETS
The report states that the security forces in the State use the PSA to "trample" international fair trial standards and ignore even the limited safeguards afforded in the PSA.
"PSA detainees are regularly detained illegally and or held incommunicado before detention orders are issued, resulting in an increased risk of torture or ill-treatment in the police custody. Further the AI research established that police have to meet monthly and quarterly targets or quotas of detention. As a result the security forces detain persons on the basis of vague and general allegations," the reports states.
Batra states that on March 10, 2005, a special secu¬rity meeting was held at the Srinagar headquarters of the Army discussing in part the issue of supporters or sympathizers of armed groups usually referred to as over-ground workers.
"The minutes of the meeting note that proactive action to neutralize them (OGWs) need to be initiated. Two Army generals who were commanding counter-insurgency forces recommended setting of monthly targets for detaining the OGWs. A majority of those detained under the PSA are described as OGWs. Of the approximately 600 PSA cases studied by AI, 356 persons (59 percent) were detained as OGWs of various armed groups. We have been informed that similar targets or quotas currently remain in place,"
'DCs ARE RUBBER STAMPS'
The report states that as senior-most executive offi¬cer in the district, the District Magistrate is the primary detaining authority under the PSA although the Divi¬sional Commissioners have the same powers.
"The DM or DC is therefore required to carefully scrutinize and evaluate the material information presented to him in the form of a dossier by the district police and prepare the ground of detentions under the PSA. The role of DM, DC is to act as checks on the arbi¬trary use of the extensive powers of administrate detention," it said.
"But the DCs are acting as mere rubber stamps. An analysis of the cases studied for this report confirms the above view showing a routine lack of scrutiny and due diligence by the DM. At the best the ground of detention prepared on the basis of the dossiers provided by the police provide some specific allegations. At worst, the grounds of detention provide nothing more than general allegations, contractions and errors," it stated.
The report also pointed towards many instances where not only the ground of detention but recoveries allegedly made by police from the detainees at the time of arrest, are identical.
SEPERATISTS JAILED FOR K-CAUSE
The report said the PSA has been used to detain both those against whom there are specific allegations of involvement in armed violence as well as against whom the allegations do not relate directly to violence.
"Many individuals may be detained after being labelled as "anti-national" solely because they support the cause of Kashmiri Azadi and because they are chal¬lenging the state through political action or peaceful dissent. Such cases could involve individuals detained solely because of their peaceful exercise of their human rights-individuals that Amnesty International would consider prisoners of conscience," the report states quot¬ing the examples of senior separatists leaders Shabir Ahmad Shah and Masarat Alam.
STATE DISRESPECTING COURTS
The report points out that the state authorities show disrespect to the Court of law.
"The judicial process in habeas corpus petitions in PSA detention cases demonstrates the number of petitions in which lawyers for the state do not appear, do not file counter affidavits, do not produce relevant documents, or wait long periods before providing relevant information in the courts. These obstructive tactics have the effect of prolonging hearings and thereby the detention period of the detainees," the report states.
"The result is that numerous PSA detention orders are quashed by the High Court due to lack of material provided or other similar reasons. But this does not seems to concern the authorities who simply issue new detention orders," it states.
MajorAvtarSingh'sextradition
The Amnesty International said they took up the issue of extradition of Major Avtar Singh, prime accused in Jaleel Andrabi murder case, during their meeting with the ministry of home affairs (MHA), Government of India. They said the MHA said they won't block any such effort.
"The issue pertains to ministry of external affairs," Batra said. "We will meet them specifically so that Government of India should pressurize his extradition. We also want that government should translate its words practically on the ground".
'AmendJuvenileAct'
The body said there was a need to amend the Juvenile Act of 1987. "As per the Act the 16 year old is regarded as a major," Batra said. "After signing a convention with the UN, the Act was amended in whole of the India. How¬ever in the case of Jammu Kashmir, the state assembly has not yet amended or updated the Act".
Speaking about the arrests of minors under PSA, Batra said the better system should be kept in place to establish the age of the person.
Highlights
Around 20,000 persons detained in two decades under PSA *
PSA used as revolving door to keep people behind bars *
Hundreds of people held each year on spurious grounds *
Detainees exposed to high degrees of torture, ill treatment *
PSA is arbitrary and abusive, undermines rule of law *
PSA provides immunity from prosecution of officials operating under it *
322 persons detained under PSA from January to September 2010 *
JK Govt must repeal PSA, amend Juvenile Act *
Screening Committees are ineffective executive bodies *
State disrespecting courts, DCs are rubber stamps *
Security agencies resorting to wanton arrests to meet targets *
GOI must allow UN Work *ing Group on Arbitrary Detentions to visit Valley
GOI should facilitate extradition of Major Avtar Singh *
--
Palash Biswas
Pl Read:
http://nandigramunited-banga.blogspot.com/
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