Condemn the continued violation of Rule of Law and use of draconian legal provisions in Kashmir

People’s Union for Democratic Rights

Press Statement

Condemn the continued violation of Rule of Law and use of draconian legal provisions in Kashmir

PUDR condemns the 36th Preventive Detention order served on Masarat Alam, leader of Muslim League and member of Tehreek-i-Hurriyat, led by Syed Ali Shah Geelani.  The revolving-door-detention, where a person is booked under new detention order illegally irrespective of the earlier order being quashed by the High Court is a feature of Jammu and Kashmir. Cases such as these also bring out the fact about the violation of law and contempt of Supreme Court orders by authorities is a cottage industry in armed conflict area like J&K. State governments have repeatedly held that Public Security Act (PSA) is a must for running the affairs of the state; i.e. without this coercive stick, governance is not possible in J&K. This new Preventive Detention (PD) order under PSA, violates judgments of the Supreme Court which have frowned on repeated and recurrent use of preventive detention and also ruled that without any fresh facts no new detention order can be passed.

On October 26th the Jammu and Kashmir High Court had quashed the 35th order of detention issued against Masarat Alam. Instead of setting him free, the police released and then re-arrested him claiming he was wanted in a case registered in 2015 in Kupwara and as a result was taken to Handwara. On November 16th while being under the detention, he was served his 36th detention order and taken to Jammu. 

Since insurgency began in Jammu and Kashmir in 1989-90, he has spent more than 20 years in preventive detention.  He was first detained under Public Security Act (1978) of Jammu and Kashmir on October 2, 1990. The PSA allows for arrest and imprisonment of a person without trial for 6 months, renewable for up to two years on mere suspicion that he/she maybe acting  “in any manner prejudicial to the maintenance of public order” [Section 8(3)(b), or for activities “in any manner prejudicial to the security of the state” (S 8 (1)(a).   Since PD is an administrative measure, it requires no proof of criminal offence or even pretense of due process.

The important thing to note about Masarat Alam is that there are 49 FIRs against him and in 29 of them he is accused of “waging war against the State”. However, in 35 cases he was given bail and in 6 cases he was acquitted of all charges. Lacking evidence to convict him the authorities have chosen to employ PD to keep him in perpetual custody. Needless to say that in the cases filed against him, his detention under PSA and incarceration far removed from trial courts in Kashmir means that his right to speedy and fair trial is jeopardized. It is possible to perpetuate injustice under the system of “open FIRs” registered by J&K police against unnamed suspects participating in a crowd.

The dastardly nature of J&K’s Preventive Detention Act is brought out by the fact that it overturns due process and infringes the constitutional rights governing the criminal justice system. As a result right to be informed of grounds of detention, make representation against such orders, consult legal counsel, to be produced before a Magistrate within 24 hours etc all get waived when a person is incarcerated under PSA. There is no provision for bail and the only remedy is to file a writ of habeas corpus before a High Court.  J&K PSA provides for detention order to be referred within four weeks of date of detention before the Advisory Board headed by a sitting or retired High Court judge and allows the Board to report to the Government within four weeks.  There is no provision for appeal against the decision of the Advisory Board and nor a provision for legal representation before the same.

Such blatant disavowal of the principles of Rule of Law to incarcerate someone for decades without trial and conviction, on mere suspicion is reminiscent of the colonial British Raj which too valorized arbitrariness and coercion for maintaining its control over Indians. Prevalence of the same practice in Indian administered J&K shows that the Indian State has much to hide and suppress in order to sustain its control.

PUDR Demands -

1. Preventive Detention order issued against Masrat Alam to be quashed.

2. Hold J&K Police liable for contempt of court.

3. Repeal of Public Security Act (PSA)

 

Cijo Joy and Anushka Singh

Secretaries, PUDR

22.11.17