‘Detention, clampdown, restriction’: Amnesty’s situation update, one year since Abrogation of Article 370

Detention of Political Opposition

In its first part titled ‘Detention of Political Opposition’, the report documented a ‘clear pattern of authorities using administrative detention on politicians, activists and anyone likely to hold a dissenting opinion in Jammu & Kashmir’ – mentioning that most political leaders were detained either under the Jammu & Kashmir Public Safety Act, 1978 (PSA) or Section 107 and 151 of the Code of Criminal Procedure and that none of them were found to belong to India’s ruling party BJP.

Terming all systems of administrative detention as a way to ‘circumvent fair trial safeguards of criminal proceedings’, and ‘made possible through repressive laws have quelled all credible opposition voices that could bring any kind of national or international attention to the on-ground situation in Jammu & Kashmir and demand accountability for the human rights violations’, the report read:

The procedures, rules of evidence and burden and standard of proof in the criminal justice system minimize the risk of innocent individuals being convicted and punished.

It is unacceptable for a government to circumvent these safeguards and detain people whom it does not intend to prosecute. This is a blatant abuse of laws by the Government of India undermining accountability, transparency, and respect for human rights.

Amnesty International India found that at least 70 political leaders including three former Chief Ministers and 28 members of the Legislative Assembly (MLAs) out of 46 in Kashmir valley, 37 in Jammu and four in Ladakh region have been detained since August 5th, 2019; further remarking the ‘sweeping arrests’ and ‘disproportionate use of detention on the political leaders’ in Kashmir are used to ‘particularly undermine their rights to freedom of expression and opinion.’

In its February 2020 update, the report found out that at least 1,249 people, including minors were held in administrative detention, ‘often through verbal orders’ and since August 2019, the executive magistrates in Kashmir region have been ‘unlawfully issuing verbal orders of detentions’ under Section 107 and 151 of the Code of Criminal Procedure, which also allows for administrative detention, ‘without keeping any record’.

Detaining individuals on the basis of verbal orders is a violation of their fair trial rights as guaranteed under Article 9 (1) of the International Covenant on Civil and Political Rights (ICCPR), to which India is a state party, states that:

The International human rights law requires states to ensure all individuals deprived of their liberty are informed, in a language they understand, in writing, of the reasons for their detention and of their right to prompt and regular access to counsel.

Absence of a written order of detention restricts an individual’s right to an independent and impartial judicial review.

Amnesty International India accessed copies of several ‘bonds’ that many of the politicians had to allegedly sign to secure their release. The report read:

These bonds lay down the condition that the leaders will not “commit breach of peace” and indulge in any political activity including making political speeches. So far, atleast five political leaders have signed bonds to secure their release.

Those who refused to acquiesce to these stringent conditions, such as Mehbooba Mufti and Shah Faesal -a bureaucrat-turned-politician and founder of J&K People’s Movement (JKPM), continue to be detained.

Furthermore, the report noted that these occurrences violate the Article 19(1)(a) of the Indian Constitution which guarantees freedom of speech and expression, particularly citing the case of S. Rangarajan v. P. Jagjivan (1989 SCC (2) 574), the Supreme Court of India had held that “open criticism of government policies and operations is not a ground for restricting expression”

Severe Clampdown on Freedom of Press

In its second part, Amnesty International India urged the Government of India to immediately put an ‘end to the clampdown on the press in Jammu and Kashmir’, including ‘withdrawal of the new Media Policy 2020’ and ‘revoking the various cases against journalists under PSA and the Unlawful Activities (Prevention) Act’

The report read:

Freedom of press is crucial for holding institutions accountable. The protracted communication restrictions in Jammu & Kashmir along with the rising intimidation faced by journalists raise grave concerns of human rights violations that may occur yet remain unreported due to Government of India’s near-total control over information coming out of the region.

According to the report, whilst the blockade was active – the on-ground reality in Jammu & Kashmir was ‘starkly different’ from the narrative of ‘normalcy peddled by both the government and mainstream media’ in India.

The report found out that as landline and mobile phones laid null, the local media suffered, grinding their work to a halt.

‘The local newspapers either stopped publishing or produced truncated versions while their websites remained dated for months,’ it read.

According to the report, amid several interviews with local journalists, editors and publishers conducted between 1 September 2019 and 31 July 2020, it was ‘repeatedly expressed’ that the journalists felt ‘threatened, intimidated and coerced’ who even ‘requested anonymity, citing fear of reprisal from the authorities’.

The report found out that many journalists whose cameras were regularly checked and memory cards erased by the authorities.

Several journalists also reported that the authorities summoned them to police station to question the “sources” of their story and coerced them to report on “development work”. In a few cases, the authorities made home visits and also inquired with the families.

Noting that newspapers only ‘reproduced government information’ or ‘wire agency reports collected from the Media Facilitation Centre set up by the Government of India’ in Srinagar, the report stated that newspapers were reduced to four printed pages from the usual 16-20 pages, while the circulation of newspapers ‘dwindled and distribution mechanism collapsed’ as no public transport was available for months after 5 August 2019.

“There were a lot of issues in the Media Facilitation Centre. One was about the privacy of the journalist… we always had the apprehension that someone is snooping on us, we didn’t know if our emails were secure, if our passwords were getting copied and there were regular internet snaps. So it was the Government telling us that it will be on (their) wish and will when journalists will be able to work and when they will not,” said Aakash Hassan, Journalist, CNN News 18 on 9 July 2020 at Srinagar, about the Media Facilitation Centre which were set up in wake of the communication blackout by the Government of India to help journalist access internet and other communication channels.

Stating that several journalists complained of the ‘impossible working conditions imposed’ on them, the report read:

‘…working out of a small room with minimal number of computers where they would get approximately 15 minutes to file their stories and update their websites. 

Initially, the facility only had three computers which were connected to the internet. Over 300 journalists were forced to work on these computers. Most journalists who accessed the facility have also routinely expressed issues of privacy and insecure systems.

The report found that in a ‘violation of right to freedom of expression’, ‘the continuing harassment and intimidation of journalists by the authorities is leading to censorship and growing fear and gradually extinguishing the independence of media’ as well as a  ‘pattern of harassment and intimidation’ faced by journalists in Jammu & Kashmir has ‘intensified’ since 5 August 2019.

Terming UAPA, India’s principal counter-terrorism law, as ‘not meeting international human rights standards’ the report mentioned that it has been used against atleast three journalists in the region.

This heavyhanded intimidation tactics of the government has further muzzled dissent in Jammu & Kashmir. A week before the government imposed the communication blackout, Qazi Shibli – a Kashmir-based journalist and editor of a news website called the Kashmiriyat – was arrested in July 2019.

He was booked under PSA on 8 August 2019. After nine months in jail, Shibli was released from Bareilly District Jail, Uttar Pradesh only to be detained again on 31 July 2020.

AII also noted that on 20 April, journalists Masrat Zahra and gowhar Geelani were booked under UAPA and faced charges for their social media posts, which the police claimed were “prejudicial to national integrity, sovereignty and security of India.”

Additionally, The United Nations Special Rapporteurs on the promotion and protection of the right to freedom of expression and opinion and on the situation of human rights defenders along with the Vice Chair of the Working Group on Arbitrary Detention in their communication to the Government of India on 12 May 2020 have expressed their ‘serious concern’ over the ‘pattern of silencing independent reporting on the situation in Jammu and Kashmir through the threat of criminal sanction.’

The penalization of journalists solely for being critical of the government is incompatible with India’s obligations under international human rights laws.

The New Media Policy, introduced in July 2020, was termed to be ‘draconian and punitive policy’ openly aiming to create “a sustained narrative on the functioning of the government in media” by checking on “anti-national activities, fake news and plagiarism”.

The report noted that while the journalists in the Kashmir region have ‘pushed back on the policy’, the journalists in Jammu have ‘largely remained silent’. Speaking to Amnesty International India, Zafar Choudhary said:

“The Press in Jammu mainly reflects the dominant political sentiment of the regional majority. The political culture of Jammu is mostly constructed on reactions to Kashmir with no major agency of its own.

So, when a difficult law, rule or policy comes in, the journalists think it is directed against Kashmir and must be in national interest. As a result, no journalist/media house in Jammu has spoken against the media policy”

The report also added that the 2017 Joint declaration on freedom of expression and ‘fake news’, disinformation and propaganda, in which the UN and regional mechanisms of freedom of expression affirmed that ‘general prohibitions on the dissemination of information based on vague and ambitious ideas, including ‘false news’ or ‘non-objective information’ are incompatible with international standards for restrictions on freedom of expression.

Protracted Restrictions To Internet Access

In its third segment, Amnesty International India urged the Government of India to immediately restore full internet connectivity in Jammu and Kashmir.

The report stated that since 2019, internet access has been disrupted in Jammu & Kashmir by at least 90 government-imposed internet shutdowns – the highest in the world.

A timeline of the lifting of communication restrictions shows that 2G mobile internet for all users was restored after seven months, on 4 March 2020. However, despite restoration of 2G mobile internet across the region, regular suspension of internet services keeps taking place in individual districts of or across Kashmir. Amnesty International India documented a total of 67 government enforced internet shutdowns between 14 January 2020 and 4 August 2020

According to the report, on 18 January 2020, prepaid mobile services were restored in Kashmir along with the 2G mobile internet to 153 websites on post-paid cell phones in Jammu and two districts of Kashmir.

While broadband services were ‘never completely disrupted’ in Jammu, they began to be restored in Kashmir in a ‘phased manner’ beginning with the opening of about 400 internet kiosks.

On 16 February 2020, the Jammu and Kashmir government added more than 1,000 websites to its internet whitelist, taking the total number from 481 to 1,485.

The Jammu and Kashmir police also invoked the Unlawful Activities (Prevention) Act (UAPA) against people allegedly misusing social media sites through proxy servers. On 4 March 2020, 2G mobile internet services were restored in Kashmir after seven months along with lifting of restrictions on social media websites.

However, within a few weeks, a second lockdown was imposed in the region to curb the spread of the COVID-19 pandemic. Five months on, the continued restrictions to internet speed in the region to 2G mobile internet and frequent internet shutdowns even during the pandemic has led to unreliability of the internet connections in Kashmir. In the month of May alone there were atleast four complete internet shutdowns in the Kashmir region.

On 21 July 2020, the Special Committee constituted after the order of the Supreme Court of India decided against the resuming of internet services.

The report noted that as the region went from one lockdown to another, the situation in relation to the COVID-19 pandemic constantly evolved, throwing up ‘new challenges’.

The report carried WHO’s recommendation that the public must be informed of the situation so that they can take appropriate measures to protect themselves and their family.

It further advised that anxiety around the outbreak can be countered by access to facts from reliable sources that help accurately determine risks so that reasonable precautions can be taken.

Human rights approach must be at the centre of all prevention, preparedness, containment, and treatment efforts to protect public health during the COVID19 pandemic.

The right to health, as guaranteed under the Universal Declaration of Human Rights, provides for the right to access healthcare.

Access to healthrelated information is also a crucial part of the right to health. Providing “education and access to information concerning the main health problems in the community, including methods of preventing and controlling them” is considered an “obligation of comparable priority” to the core obligations of the right to health.

According to the report, on 11 April 2020, the Private Schools Association of Jammu and Kashmir had moved the Supreme Court of India seeking restoration of 4G services in the union territory, contending that the lack of proper internet connectivity violated the fundamental right to education of children.

The report noted that restrictions on internet speed directly impacts the students of Jammu and Kashmir to exercise their right to education as they are unable to access e-learning services such as online video classes and other online educational content.

In another sub-segment called Access to Justice, the report read:

The High Court of Jammu and Kashmir has been holding virtual hearings since 23 March 2020. However, due to restrictions placed on internet, there have been reports of “extreme difficulty” in hearing the counsels. It is evident that the technological advancements have no place in Jammu & Kashmir along with the fundamental legal principles that call for unfettered access to justice.

The noted carried a comparative analysis of the Habeas Corpus Petitions (HCP) filed in the Jammu and Srinagar wings of the Jammu and Kashmir High Court in the last five years, which shows that the highest number of pending HCPs (371) were in Srinagar Wing in 2019. The report read:

The continuous lockdown in the region may have affected the number of HCPs the High Court could depose since 2019. In 2020, both the number of HCPs filed as well as the number of HCPs deposed, by the Court have seen a sharp decline. This can be attributed to COVID-19 related travel restrictions accompanied by the lack of hi-speed internet to hold uninterrupted hearings through video conferencing. This has severely impacted access to justice in Jammu and Kashmir considering the sheer number of people who were held in detention without charge or trial since 5 August 2019

Prisons: Covid19 Hotspots 

In its fourth segment, Amnesty International India urged the Government of India to release those who are currently in administrative detention, particularly booked under PSA and Section 107, 109 and 151 of the CrPC.

It also called on the government to ‘immediately and unconditionally’ release all persons deprived of their freedom ‘solely for peaceful enjoyment of their rights to freedom of expression, association, peaceful assembly, belief or equality and nondiscrimination as they should not have been imprisoned in the first place’.

The report carried that according to the Ministry of Home Affairs, more than 5,100 Kashmiris were detained—most of them released later—before and after August 5, when the Indian government scrapped Jammu and Kashmir’s autonomous status. But hundreds are still ‘lodged in jails’ in Kashmir and elsewhere.

Quoting media reports, it stated that the the occupancy in the jails of Jammu & Kashmir at this time is 12% more than their capacity. The 14 jails in the region house 3,628 inmates against an overall capacity of 3,234 and read:

On 29 March 2020, in line with the earlier judgment of the Supreme Court of India to prevent the spread of COVID-19 in prisons, the Government of Jammu and Kashmir constituted a High Powered Committee to release prisoners on interim bail or parole to decongest prisons across the Union Territory.

The Supreme Court had stated that factors such as the nature and severity of the offence and the duration of the sentence must be considered for ordering the release of a prisoner.

According to the information obtained through Right to Information applications by Amnesty International India, 490 prisoners were released from jails in the region till 16 March 2020.

On 30 March 2020, the Government of India further revoked detention orders under PSA against 31 persons. In April 2020, about 371 prisoners were released to decongest the jails in wake of the COVID-19 pandemic.

On 16 July 2020, at least 96 prisoners of the Anantnag district jail, mostly under-trials, tested positive for COVID-19.44 The infections constitute nearly 50 per cent of the overcrowded jail’s inmate population.

A staff member also tested positive. On 27 July, at least five jail staff of the Central Jail hospital Srinagar tested positive for COVID-19.

Closure of State Human Rights Commission And Other Bodies

In its conclusion segment, Amnesty International recommended that given the ‘chronic history of human rights abuses’ in the past in the region, the National Human Rights Commission (NHRC) set up a branch office for Jammu and Kashmir to ‘facilitate easy access to the complaint filing process for the local people’ – it read:

Additionally, it must also appoint a Special Monitor for the region with authority on local situation and challenges. The NHRC must urgently take up cases that had been pending with the former State Human Rights Commission and end the limbo for the petitioners seeking redressal of their grievances.

Amnesty International India recommends that the National Commission for Women constitute a Jammu and Kashmir Cell in the Commission to address problems being faced by women of the region.

Amnesty International India is part of the Amnesty International global human rights movement. It defines itself as a group that ‘seeks to protect and promote the human rights of everyone in India.

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