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
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
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.


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