COMMENTARY

is the second largest union in the Dooars (the largest being the CITU). Its cadre in Dooars are upset with the Darjeeling agreement. This would more or less mean that wages in Dooars too will be Rs 100. The most vociferous critique of the Darjeeling award is understandably from ­ the PTWU of the AVP. The agreed wage is far below its demand for Rs 250. This has led to ethnic tensions in Dooars with the adivasi workers labelling the Nepali origin

workers as “traitors”. The GJMM supporters in the Dooars too are in a fix. They cannot support the decision of the Darjeeling unions, at the same time they cannot support the demands of either the CCTPW ­ or the PTWU as it would appear antiGJMM. These tensions have been created by the GJMM whose union went ahead with the agreement without consulting other tea workers’ unions. GJMM obviously thought that this move would go in

its favour ­ because it was a comparatively high ­ increase. The negotiations for wage revision in Dooars have not begun. It is unlikely that the workers can achieve more than what has been achieved in the Darjeeling Hills. In case negations do not take place or the employers’ associations feel that they are unnecessary because the Darjeeling model can be followed, it will lead to further divisions among the tea workers.

Tortuous Road to Justice in Kashmir
Freny Manecksha

In Kashmir the conduct of state or panchayati raj elections are often touted as indicators of normality, of people’s willing participation in a democratic exercise. But these exercises signify nothing if the people themselves are denied access to justice and consequently lose faith in the state’s judicial institutions. A report based on two studies and a visit to the state.

S

ecuring justice in Kashmir has become impossible not because of ­ draconian laws like the Public Safety Act (PSA) and the Armed Forces ­ Special Powers Act (AFSPA), but because these laws are increasingly being used to supplant the ordinary criminal justice system which has its own procedures and ­ human rights safeguards. Moreover, a blanket legal and moral impunity in the state has led to a lack of ­ respect by security personnel and the Jammu and Kashmir (J&K) authorities for the judicial process in habeas corpus procee­ dings. Court directives are simply igno­­ ­ red or circumvented. The impunity even allows an informal detention system to prevail whereby people, especially youth, are simply picked by Special Operations Group (SOG),1 taken to police stations or interrogation centres like the infamous “Cargo” (the air cargo building near the police station Shergari), and held in unofficial, illegal, incommunicado detention.2 Subsequently, they may be held in preventive detention.

of nationalist interest, of Islamophobia, of fighting terrorism and Pakistan and many other such discourses. Early this year Amnesty International released its report A Lawless Law Detention under the Public Safety Act, Jammu & Kashmir, highlighting the way in which the state incarcerates suspects without ade­ quate evidence­ . The report charges India of not only “gravely violating their ­ human rig­ hts”, but also of having “failed in its duty to charge and try such indivi­ duals and punish them if found guilty in a fair trial”. A detailed examination of how the PSA has been used by the state will illustrate how it is undermining the rule of law and why it is a “lawless law” in the world’s largest democracy.

Detention sans Trial
The PSA is a statute that provides for detention for a maximum of two years without trial in the case of persons acting in any manner prejudicial to the security of the state. It further allows for preventive (or what Amnesty prefers to call administrative) detention of up to one year where any person is acting in any manner prejudicial to the maintenance of public order. The detention is ordered either by the divisional commissioner or the district magistrate. Grounds of detention must be provided to the detainee within five to 10 days, but without the necessity of disclosing facts that the detaining authority considers to be against public interest. In practice, even these norms are hardly follo­ wed. District magistrates routinely rubberstamp detention orders. Mir Shafkat Hussain, a Srinagar-based lawyer who ­ has handled habeas corpus petitions for hundreds of PSA detentions and other ­

Erosion of Faith
For these and other reasons people’s faith in judicial institutions is being whittled away. Legal and human rights activists speak despairingly of the “impossibility of justice” when it comes to Kashmir. They say there is very little support for accountability because it is seen through the prism

Freny Manecksha ( frenym@gmail.com) is an independent journalist interested in development and human rights issues.

Economic & Political Weekly  EPW   august 6, 2011  vol xlvi no 32

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Faizan was eventually released on parole in March. Revolving door detentions have been used relentlessly against political dissidents and party workers to disable the first and second-tiers of several political parties and outfits. This definition emboldens the authorities to use the PSA against the rumbles of dissent over the last three years. Gh Mohiuddin Sheikh. Shafkat Hussain explains.For example. This is done by revolving door detentions. Infad Hakim. The technique. The distances and limited visiting hours that nece­ ssitate an overnight halt make it difficult and expensive for family members to visit the boys. has not only destroyed political space but has also reduced the court’s functioning to focus on procedural and nominal aspects of detention at the “expense of substantive protection of human rights of detainees”.. At their intervention the family ­ agrees to an undertaking and the dossier available at Dey & Bose Magazine Agent P. Some minors were booked on the grounds that they wore lattoo shoes and their appearance was like that of militants. 2011  vol xlvi no 32  EPW   Economic & Political Weekly . and not 27  years of age as the detaining authority claimed. was forced to skip school and take over his father’s trade. Faizan’s detention was challenged by Shafkat Hussain on the grounds that he was a minor being 14 years old. the detaining authorities have used vague rhetoric and some truly bizarre grounds to incarcerate a wide category of people under the PSA. Later. ­ these boys are held along with hardened criminals. have been booked under the PSA after the state failed to pursue ­ criminal charges. the superintendent of the jail ­ informs the Joint Interrogation Centre of Jammu or Joint Interrogation Centre of Kashmir who takes the detainee in for ­ interrogation. A few examples: A 70-year-old retired teacher of history.. Despite being granted bail on 23  February he was whisked away by the authorities to Kathua jail in Jammu where he was then detained under the PSA. The resultant erosion of faith in the judi­ cial processes has led to families opting to seek help from political party worker­ s or influential local leaders when a close one is whisked away in illegal detention.000 people over two decades. the state also undermines the rule of law by checkmating Another strategy used by the authorities is to revoke a detention order on technical grounds and issue a new one ­ thereby necessitating a fresh habeas corpus ­ petition and ensuring the person remains in detention for at least another ­ six months. Rajouri and Poonch all of which are at least six to 12 hours away. sending it back if necessary. J&K defines youth above the age of 16 as adults. if a man from Baramulla is arrested.a cancer in the society” and of “manifesting criminal behaviour against young teenage girls”.O. Some of the grounds do not constitute any recognisable criminal offence. which the state insists is not a technical violation.. the authorities promptly issue a new detention order on new grounds thus thwarting the release. Here they ‘respect’ orders regarding release of detained persons (under PSA) and prom­ ptly re-arrest them. There are no detention centres nor are there any special remand homes. murderers and such others. drug offenders. many of them minors.. has been detained on the ground that he forced the public to observ­ e a strike.. The PSA has been used widely to detain an estimated 8. Chief Minister Omar Abdullah went so far as to cast doubts on the veracit­ y of the certificate saying such fake certi­ ficates can be produced in Kashmir. a Class 10 student from Anantnag and the son of a fruit vendor.a road Romeo.Beldubi. court order­ s for the release of detainees. Allegations in the PSA are generally couched in vague language and omit details. While a distraught father ran around trying to secur­ e his son’s release from a jail. Faizan was charged with leading a procession of stone pelters and damaging buildings and police vehicles. Shafkat Hussain challenged the grounds pointing out that there were no details about which buildings and police vehicles were targeted­ .. For youth held in jails outside the Valley­ . Despite a tectonic shift in the nature of protests from militancy to unarmed street protests the state has refused to reflect this change in its attitude. Youth arrested in the Valley are sent generally to jails in Jammu. says that during his h legal career he has come across only two ­ district magistrates who took their role seriously and scrutinised the police ver­ sions. A large number of young protesters and stone pelters. The debate on whether he really was a minor took on a strident tone with authorities carrying out medical tests and his counsel producing certificates from his college. according to Amnesty International. it failed to update the law in 2000 to define minors as those under the age of 18. His lawyer said he was held because he had a romantic relationshi­ p with the daughter of a police officer. court orders are respected. He was given bail but subsequently more criminal cases were slapped on him. a carefully choreographed and coordinated procedure with the help of all agencies. criminal charges of damage to public property were filed against him.. A case which can serve as an illustration of all the concerns over the PSA is that of Faizan Rafiq Hakeem. Revolving Door Detentions Since district magistrates rarely scrutinise the grounds of detention before passing them. who worked with the education department and suffer­ s from heart disease. another young son. Meanwhile. 300 km away from his hometown. Faizan’s ordeal as well as that of several minors highlights the deficiencies in the juvenile justice system in J&K. outside the state. Unlike the rest of India. the experiences become even more intimidating because of language and cultural differences. he is generally sent to a jail in Jammu or Udhampur. Even minors are not spared. Most horrifying. Dadpur Howrah 711 322 West Bengal Ph: 22198749 30 august 6. who was picked up on 6 February this year by the SOG and shifted to the interrogation centre. Although J&K adopted the Juvenile Justic­ e Act in 1988.4 Besides the arbitrary manner in which the PSA is applied.000 to 20.COMMENTARY ­ uman rights cases.3 Suhail Ahmad Mandoo was accused of being a “nuisance in the society. When the court issues the release order­ .

In over 70% of the petitions. the Border Security Force (BSF) took over five years to file its response to the petition. The report says that in over 57% of cases there was a clear finding against an identified security force or unit. of people’s willing participation in a democratic exercise. A Report on the People’s Tribunal”. In his judgment judge F M Ibrahim Kalifulla notes that in spite of an order dated 28  Octobe­ r 2003 by the additional sessions judge (who conducted an inquiry) to the Parimpora Police Station to file an FIR.citizenside. From the point when the court issues notice of the petition upon respondents that is the state and central governments. He added. In as many as 38 cases the accused unit of the armed forces did not bother to file any reply at all. There were years of delay because notices and summons were not issued to agencies despite directions. He also held the 20 Grenadiers unit guilty of violation of Article 21 saying that it is “patent and incontrovertible” even though it denied the arrest. Though the unit was given ample opportunities. A recent judgment in Srinagar.com/en/photos/politics/ 2011-03-1/35280/amnesty-international-slams-indian-and-kashmir-government-for-illegal-detentions. the accused unit did not participate in inquiry proceedings. the Central Reserve Police Force made the commandant and deputy commandant of 53 BN retire rather than be produced in court.COMMENTARY for detention is never sent to the district magistrate. is being hailed not just because of the compensation amount awarded (Rs 10 lakh) but because of the unequivocal comments made by the judge. 2011  vol xlvi no 32 31 . who was picked up in the presence of his family members. In 10 cases of the 98. This phenomenon of bypassing judicial systems along with the police keeping “open FIRs” has led to the charge of the prevalence of extortion. who were concerned over custodial killings and enforced disappearances. On condition of anonymity. it loses all control over the pace. The case concerns the enforced disappearance of autorickshaw driver Mushtaq Ahmad Dar of Tengpora. however. 4 A Lawless Law Detention under the PSA. The report which examines 98 cases of alleged enforced disappearances says its theme is the “impossibility of justice for victims of impunity”. A habeas corpus petition was subsequently filed by the mother. In 2000. dated 25 March 2011. Amnest­ y International. All that the court can offer is compensation for the victim’s family. 2 http://www. Notes 1 A special force of the police that works in tandem with the army and other security forces. The Writ of Habeas Corpus in Jammu & Kashmir 1990-2000 brought out by Ashok Agrwaal for the South Asia ­ Forum for Human Rights. the court’s staff did not carry out directions issued by the judges. provided assistance and fieldwork for a monograph titled In Search of the Vanished Blood. In 10 cases­ . especially with regard to Articl­ e 21 (Right to Life).html 3 Testimony of Parvez Imroz in “The Terror of POTA and Other Security Legislation. it did not bother to place any material either oral or documentary to support its stand of mere denial regarding the disappearance of ­ the detenue. He noted that the “pathe­ tic” plea of being “helpless” would only result in deterioration of the status of the law-enforcing agency. is the impunity that springs from the AFSPA . The judge declared that this was a case which would “fall within the parameters of violation of the right under Article 21 of the Constitution which was gross and was of such grave magnitude which shocked the conscience of the Court”. The judge dismissed the police’s claim that the accused unit did not cooperate with the Parimpora Police Station for proceeding in the prosecution. The report sums up how all these factors rendered the failure of the writ of the habeas corpus or its ability to deliver punitive justice. The court was unable to do anything more than orde­ r registration of an FIR which ought to have been done in the first place. a young street protester confirmed he was held ille­ gally in a Srinagar police thana until his father. there was admission of arrest but it was claimed that the person had subsequently been released. they failed to do so until 4 April 2009. “It (the unit) came forward with an incorrect and untrue statement that the case of the detenue was dealt with by this court and was closed”. The conduct of other players (the respon­ dents­ ) also contributed to stalling the proceedings. It is technically a “report on the functioning of the constitutional and legal redress mechanism for the protection of the right to life during the period of insurgency in Kashmir 1990-2000”.000 for his release. Srinagar. The group. it was necessary to have a detailed documentation of the manner in which the justice system dealt with the huge number of habeas corpus petitions that were filed in the high court in this regard. In three cases it was claimed that the arrested had escaped from custody. paid Rs 10. But these exercises signify nothing if the people themselves are denied acces­ s to justice and consequently lose faith in the state’s judicial institutions. by the 20 Grenadiers of the Army on 13 April 1997. In the case of the disappearance of Manzoor Zargar. manner and outcome. In Kashmir the holding of elections – state or panchayati – are often touted as indicators of normality. Furthermore. a small businessman in downtown Srinagar. Economic & Political Weekly  EPW   august 6. It is a grave indictment of democracy when after a court holds a crime to be of grave magnitude the judicial remedy is ineffective because the law cannot be held applicable to an executive that does not respect people’s fundamental rights to life and liberty. In the case pertaining to Basharat Shah. decided that while such violations were regularly reported. a group of lawyers and volunteers. It observes that “the single most striking feature of the habeas corpus proceedings is the powerlessness of the high court”. bribery and other corrupt practices. The nature of the response too was far from satisfactory. Right to Life The other major threat to the rule of law in Kashmir. In 62 cases in which inquiries had been ordered by the high court. the order to register an FIR took between five and 12 years. which was later named ­ as the Centre for Law and Develop­ ment. “It is for the police officials to invoke the appropriate provisions of the law under the criminal law jurisdiction for securing the ends of justice”. there was bald denial of the arrest­ s being made by the units. He said.