Kashmir's PSA detainees: a battle for rights and reunion

Zahoor Ahmad, a 36-year-old from Shah Gund, a hamlet a few kilometres away from Hajin in Indian-administered Kashmir, has not seen his younger brother, Sajad Gul, for 20 months. 

Gul, a journalist-in-training, was arrested by the state authorities on 5 January, 2022 and subsequently detained under the Public Safety Act (PSA), a controversial law that allows the state to detain individuals for up to two years without trial.

"We were about to sleep. Suddenly, there was a knock on our door. The forces entered our home and picked up my brother," Zahoor told FairPlanet. "He was kept at a local police station for eight to nine days. [Then a] court granted him bail [...] and we were happy that he would be released."

But Ahmad's hopes were soon dashed: "[They] did not release him, and instead booked him under the Public Safety Act," he said, adding that his brother was targeted for being a journalist.

"My brother was not involved in any anti-national activity. He was detained for exposing wrongdoings by authorities."

Gul's family maintains that the young journalist was arrested for tweeting a video depicting the harassment of locals by the police during a protest, At the time of his arrest, however, the police claimed that Gul had been "habitual of spreading disinformation/ false narratives through different social media platforms in order to create ill will against the government by provoking general masses to resort to violence and disturb public peace and tranquility."

The PSA dossier of Gul states that his activities were "prejudicial to the security and sovereignty" of India and three First Information Report (FIRs)  - Kashmir's version of a police file -were opened against him.

After being detained under the PSA, Gul was first held at Kot Bhalwal prison in Jammu, the winter capital of Indian-administered Kashmir. A few months later, he was transferred to a jail in the Indian state of Uttar Pradesh, some 1,100 kilometres away from Kashmir.

"It is not easy for us to go there. We cannot afford to go there frequently. It costs around Rs 20,000-25,000 (USD 241.85 - 302.24) for a person to visit the jail," said Ahmed, who has been looking after Gul ever since their father passed away 15 years ago.  "Why did they have to keep him detained at a faraway place? Only one of our family members has been able to meet him at the district jail Bareilly (Uttar Pradesh) a couple of times. Even my mother couldn’t [afford to] go there."

Traumatising detainees anD their families

Like Gul, hundreds of PSA detainees from Kashmir have been transferred to jails in the Indian States of Uttar Pradesh and Haryana over the past five years.  This trend has brought immense suffering and psychological distress to detainees and their family members. 

"The authorities are violating basic rights of detainees by keeping them in faraway jails. If somebody is detained, it is the right of his family to meet him, but the authorities deprive them of their rights by imprisoning them hundreds of kilometres away from their homes," Irfan Hafiz Lone, a Kashmir-based attorney, told FairPlanet.

He further shared that most PSA detainees come from low-income backgrounds. "They don’t have resources and means to travel outside to meet their incarcerated family members."

He added, "The physical separation creates emotional suffering and breaks the bond of detainees with their family members and friends. They become hopeless in jails when no one visits them."

According to a document issued on 31 August 2023 by Kashmir's Home Department, and reviewed by FairPlanet, 1,122 PSA detainees were sent to jails outside Jammu and Kashmir since 2018. Among them, 44 were transferred in 2018, 295 in 2019, 146 in 2021, 585 in 2022 and 52 in 2023 (as of 1 August).

Currently, 408 PSA detainees, including 29 foreigners, are being held in jails outside Jammu and Kashmir, the documents reveal.

The trend of transferring PSA detainees to jails outside Jammu and Kashmir began after after then- governor NN Vohra in July 2018 removed a safeguard that barred the authorities from shifting natives detained under the law to jails outside the erstwhile State, which was demoted to a Union Territory in 2019.

The removal of the safeguard was then challenged in the Supreme Court of India. Defending their move, the Kashmiri authorities claimed the protection was removed due to security considerations and to prevent the mixing of 'hardcore' insurgents with other prisoners.

On 16 May, 2023, the Supreme Court transferred the case to Jammu and Kashmir's High Court, which is already deliberating on a plea challenging the constitutional validity of the law. The case remains under adjudication.

A 'lawless law'

The Public Safety Act was enacted by the provincial government of the Indian-administered Kashmir in 1978. The controversial law has been widely and arbitrarily invoked in the region after an armed conflict broke out in 1988-89.

Rights groups claim that 20,000 persons have been detained under the law for allegedly posing a threat to law and order and the security of the state. 

In 2011, Amnesty International labeled the PSA a "lawless law," saying its widespread and abusive use "further risks undermining the rule of law and reinforcing deeply held perceptions that police and security forces are above the law."

Pressure mounts to repeal PSA 

Rights activists in Kashmir are demanding the repeal of the PSA, claiming it violates basic human rights principles.

Speaking to FairPlanet, Meenakshi Gangly, deputy director at Human Rights Watch’s Asia division, said that the authorities should do away with lengthy preventive detentions without charges, which violate international standards.

"The government should ensure that detainees have proper access to legal counsel," she said, adding that families find it difficult to support those held at distant places.

Radha Kumar, a former interlocutor of India’s federal government in Kashmir, said the law should be repealed as "it is against the basic principles of human rights and India’s human rights law."

She added, "The Government of India claims that all Indian laws have been made applicable to Jammu and Kashmir after 2019, but why has PSA been retained? The detention law (National Security Act), which is used in the rest of India, allows a maximum detention for up to three months, but the PSA allows detention for up to two years."

She further stated that there are safety concerns regarding Kashmiri detainees held in different parts of India. "There is a lot of anti-Kashmiri [sentiments] in different parts of India, especially in the northern parts," she said, adding that detainees might be exposed to such discriminatory sentiments and potentially harmed. 

In a 2012 report she submitted to the India’s federal Government in 2012, Kumar recommended the inclusion of an amendment to the Public Safety Act that would reduce the specified detention period outlined in the legislation.

"Given the fact that disturbance of public order can range from minor to major acts, the detention period should range from one week for minor offences to one month for major offences, but no longer," the report reads. 

"Assuming that actions 'prejudicial to the security of the State' constitute far graver offences, three months’ detention should be ample for proceeding to trial. Juveniles should not be held under the PSA at all."

Image by Sajad Gul