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Amnesty report on human rights violation in India

Mar 23, 2011

A ‘lawless law’: Detention under the Jammu Kashmir Public Safety Act, the latest report by Amnesty International calls for a repeal of the Public Safety Act in the state of Jammu and Kashmir. The so-called 'lawless' act has been used by the state to detain thousands of activists, protesters and ordinary citizens without trial, and contradicts India's international human rights legal obligations.

A 'lawless law': Detentions under the Jammu and Kashmir Public Safety Act

 

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The region of Kashmir has been a source of dispute in South Asia for decades. But since 1989, J&K has witnessed an ongoing popular movement and armed uprising for independence. Armed groups regularly carry out attacks on security forces as well as civilians. Amnesty International acknowledges the duty of the state to defend and protect its population from violence. However, it urges the government to do so while respecting the human rights of all the citizens.

By using the Public Safety Act (PSA) to incarcerate suspects without adequate evidence, India has not only 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. Between January and September 2010 alone, 322 people were reportedly detained under the PSA, the Amnesty report enumerates.

Amnesty International prepared the report on the basis of research conducted by the 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.

The research shows 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 activists, protesters and ordinary individuals to ‘’keep them out of circulation”. Many of these individuals may have been detained after being labeled 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.

The Indian Supreme Court has 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 J&K. Criminal justice systems have developed procedures, rules of evidence, and the burden and standard of proof in order to minimise the risk of punishing the innocent and to ensure punishment of the guilty. It is unacceptable for any government to circumvent these safeguards by use of “preventive” or any other form of administrative detention punishing those suspected of committing offences without ever charging or trying them.

Under the PSA, detention can be justified for undefined acts “prejudicial to the security of the State” and for extremely broadly defined acts “prejudicial to the maintenance of public order”. The possibility of detention on such vague and broadly defined allegations violates the principle of legality required by Article 9(1) of the International Covenant on civil and Political Rights (ICCPR), to which India is a party.

Detainees also cannot challenge the decision to detain them in any meaningful way; there is no provision for judicial review of detention in the PSA; and detainees are not permitted legal representation before the Advisory Board, the executive detaining authority that confirms detention orders. The United Nations Working Group on Arbitrary Detention (WGAD), in a November 2008 opinion on 10 PSA cases from J&K, found that the detentions did not conform to the international human rights legal obligations that the Government of India is bound by.

Amnesty International calls upon the Government of Jammu and Kashmir to repeal the PSA and end the system of administrative detention in J&K, charging those suspected of committing criminal acts with recognizably criminal offences and trying them in a court of law with all safeguards for fair trial provided. 

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