J&K High Court failed to adequately defend human rights principles enshrined in Constitution

Published on: June 15, 2019

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In a written reply to the Legislative Assembly of Jammu and Kashmir in January 2017, the then-Chief Minister Mehbooba Mufti stated that from 2007 to 2016, over 2,400 were detained the Public Security Act (PSA), of which about 58% were quashed by courts. The Chief Minister stated in the Assembly in January 2018 that 525 people had been detained under the PSA in 2016, and 201 in 2017.

In a new report on PSA, Amnesty International India has said, “Government statistics are often inconsistent. According to information obtained through Right to Information (RTI) applications, over 1,000 people were detained under the PSA between March 2016 and August 2017.”

The report follows two earlier reports – first in 2011, titled ‘A Lawless Law’ on administrative detention under the PSA, documenting the various ways in which the use of the PSA violated international human rights law, and second in 2012, titled ‘Still a Lawless Law’, which found that concerns with the PSA and its application remain unchanged.

The new report, which Amnesty has called “briefing” revisits the PSA in its 42nd year of existence, to claim how this ‘lawless law’ is enabling violations of both Indian and international law in Jammu and Kashmir, thereby contributing to inflaming tensions between residents and state authorities.

Even as underlining that it takes “no position on the guilt or innocence of those alleged to have committed human rights abuses or recognizably criminal offences”, Amnesty believes, “However, everyone must be able to enjoy the full range of human rights guaranteed under Indian and international law. By using the PSA to incarcerate suspects without charge or trial, J&K authorities have not only gravely violated their human rights but also failed in their duty to charge and try such individuals and to punish them if found guilty in a fair trial.”

Significantly, the report doesn’t just blame the authorities, but also talks of the “failures of the judiciary”.  Excerpts:

The only feasible legal avenue open to families of PSA detainees is to file a habeas corpus petition before the J&K High Court. India’s higher judiciary is meant to act as a custodian of the Constitution of India and the rights it guarantees. The High Court has played a key role in curbing misuse of the PSA, as is evident from the cases mentioned earlier.

Between March 2016 and July 2017, the Court quashed over 80% of all detention orders on various grounds. However, the High Court has also failed to adequately defend human rights principles enshrined in the Constitution of India and international human rights law and standards. The Court has been remiss in some specific ways:

– Ignoring illegal detention: In many of the cases analyzed for this report, detainees complained of being held in illegal detention without any basis, often prior to having a PSA detention order issued against them. In some cases, minors have been illegally detained. Despite having these allegations brought to its notice, the High Court has not ordered investigations into a single instance of alleged illegal detention. In many cases, people have been detained illegally after their detention orders have been quashed by the High Court, or they have been ordered to be released on bail. Such detention amounts to open defiance of court orders. Yet the High Court has not intervened to secure the liberty of detainees.

– Not holding detaining authorities accountable: The High Court has quashed many cases of PSA detention when executive authorities have failed to show due diligence in issuing detention orders. In several cases, it has quashed successive detention orders issued against the same individual. Yet the Court has rarely held police officials or executive detaining authorities accountable for their failures, even when it has pointed them out.

Officials already protected from prosecution under immunity provisions in the PSA are further emboldened by such reluctance from the High Court. The higher judiciary in India has vast constitutional powers and courts are often known to enforce their decisions through fines, strictures and other penalties. Yet the J&K High Court has appeared hesitant to take such measures.

– Not awarding compensation: The Supreme Court of India has awarded compensation in the past in cases of human rights violations, including illegal detentions. Most writ petitions filed in cases of PSA detention before the High Court raise the issue of compensation, and the Court sometimes mentions these requests, yet never acts on them.

As advocate Parvez Imroz says:

“Why is the police so insensitive to the judiciary’s orders? The reason is that the courts have failed to assert themselves. I do not have a single case in my knowledge where the detaining authorities have been questioned for passing the illegal orders, for example passing the detention orders against the minors or invalid persons. Or people who are remotely connected with the violence or with any political activity. Not a single case is there where the courts have ordered compensation to be paid to the detenues, though we have lot of cases in the Supreme Court.

“The procedural safeguards are being violated by the detaining authorities because there is no accountability…It is not only about the impunity of the armed forces here, which is much talked about. There is also impunity of the bureaucracy… The courts have completely caved in. Judicial impunity has emboldened the executive to pass the orders repeatedly.”

The apparent reluctance of the High Court to go beyond examining procedural issues, and deal with substantive protection of the rights of PSA detainees, has created an odd equilibrium in Jammu and Kashmir, where authorities flout the limited safeguards of the PSA with impunity, the Court quashes their orders, and authorities then issue new orders, for the cycle to start again. Authorities do not face any penalties for their actions, and the Court’s quashing of orders ensures that a façade of the rule of law is maintained.

The costs of this equilibrium are borne, then, by PSA detainees, whose rights continue to be routinely violated.

Courtesy: Counter View