The American Bar Association (ABA) in a letter to the Supreme Court of India has expressed concern over the detention of two Kashmiri journalists detained by the authorities under Public Safety Act (PSA).
ABA is one of the world’s largest voluntary associations of lawyers and law students, which is not specific to any jurisdiction in the United States but works around the world.
In a statement, the association said, “Fahad Shah and Sajad Gul, who were affiliated with the news outlet “The Kashmir Walla”, have been detained under the Jammu and Kashmir Public Safety Act (PSA) since 16 January and 14 March, respectively adding both the cases have not only impacted the journalists in India but the behaviour of the police and prosecutors had challenged the independence of India’s judiciary.”
Despite the bail orders of Gul and Shah, the statement said police and prosecutors are challenging the will of the judiciary by re-arresting the defendants and holding them without pre-trial bail under a different charge.
Both Shah and Gul were previously arrested under the Unlawful Activities Prevention Act (UAPA), allegedly for inciting violence throughout their legitimate journalistic work. These charges, however, were found lacking in substance, the statement mentioned.
It further said that in Gul’s case, a local magistrate had granted bail, but the police re-arrested Gul the next day under the PSA immediately after receiving the bail order.
Meanwhile, in Shah’s case, he has been granted bail twice after two different charges under the UAPA. Before a third bail hearing, Shah was again arrested by authorities under the PSA for “working against the ethics of journalism” and “propagating stories against the interest and security of the nation”, it added.
In its PSA dossier on Gul, police based his re-arrest on the view that “there is every apprehension that [Gul] may get bailed out from the [Honorable] Court of law.”
The ABA has said that such action by the police and prosecutors violates the basic foundational principle of India’s constitution, which guarantees an independent judiciary and the rule of law, as well as Principle 2 of the UN Basic Principles on the Independence of the Judiciary, which asserts that “the judiciary shall decide matters before them impartially, based on facts and by the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason”.
The ABA further said that with the intervention from the Supreme Court of India, the police may continue to rely on the PSA to infringe on the freedom of the press in Jammu and Kashmir. If so, India’s judiciary would be effectively denied the opportunity to assess defendants’ rights, it added.
However, the ABA had urged the Supreme Court of India to hear and resolve expeditiously habeas petitions filed by PSA detainees alleging procedural due process violations and alternatively, take suo motto cognizance over administrative decisions to charge individuals especially journalists in the area under the PSA because Article 22 of the Constitution allows for preventive detention only in very limited circumstances, and consider applications for the initiation of public interest litigation made by human rights defenders concerning the use of the Public Safety Act and its impact on the independence of the judiciary, the statement concludes.
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