By Fahad Shah
Using the internet as a medium to demand the release of a young Kashmiri, Waqar Ahmed Moharkant, who is in jail under the draconian Jammu and Kashmir Public Safety act (1978), his acquaintances have started an online campaign by launching a website “Free Waqar Campaign” and have been spreading the word through social networking sites too, for more than a week now. The campaign has got huge support from people around the world but the state hasn’t reacted yet.
A student of commerce in a Srinagar college, Waqar was arrested on October 4, 2011, on the charges of participating in pro-freedom protests. He was picked up by the Jammu and Kashmir police from his house in Lal Bazaar. Despite the court accepted his bail plea on October 23, 2011, he was not released but shifted to Central Jail on November 5, 2011 under judicial remand. Later the Public Safety Act (PSA) was slapped on him on the charges of, “…involvement in anti-social activities aimed at disturbing the public tranquillity and peace…mobilising the anti-social elements for creating havoc in so far as causing serious law and order problem…causes impediments in the smooth economic development…your said acts are aimed at keeping the state on boil and thereby bringing about secession of J&K from Union of India.”
The 21-year-old, Waqar was not allowed to appear in his examinations. His father filed an application in the court for allowing him to appear in the annual bachelors examinations and the court passed the orders to the police for granting him permission. Even after the court orders, police didn’t allow him to appear in one his papers. He couldn’t appear in the English paper.
When the state chief minister, Omar Abdullah’s much hyped amnesty to “stone throwers”, who were arrested, was making rounds in November 2011 before the Eid-ul-Azha, the police were supposed to release Waqar too. According to local media reports he was mentioned in the list of 30 youths who were to be released. But he was never released. In December 2011, Waqar’s father received a call from the concerned police station informing him that his son will be shifted to Kotbalwal Jail overnight, which is 300 km away from Srinagar.
Since then it has been more than five months that Waqar is illegally languishing in the jail. His detention is under the PSA, under which many other Kashmiris are languishing in jails without any trial. The act was enacted in 1978 by the then government, headed by Sheikh Mohammad Abdullah.
The report on the PSA calling it, “A Lawless Law” released by the international human rights watchdog Amnesty International in 2011, says, “The PSA lacks a significant safeguard against torture and ill-treatment of detainees: while confessions made to the police can play no role in the regular criminal process in India, there is no such restriction in processes of administrative detention. The Indian Evidence Act provides that a confession made to a police officer is not admissible as evidence in a court of law…Unfortunately, the vast majority of PSA detention orders are based on interrogation reports prepared by the police on the basis of confessional statements made by the detainee, often obtained after “sustained interrogation”, invariably during periods of illegal and often incommunicado detention.”
According to the report, estimates of the number detained under the PSA over the past two decades range from 8,000-20,000 which includes 322 322 people who were reportedly detained under the PSA between January and September 2010 alone. The details of Waqar’s detention under PSA which make it illegal are that he was not given a translated copy of the grounds of his detention which his family says “would otherwise have enabled him to make an effective representation against the order of his detention”. Another blot in the case is that the police charged him under the PSA without informing his family; they were informed later, via a phone call to his father, when he was being shifted to jail.
Not providing him the details of his charges and not informing his family that he has been jailed under PSA itself makes it an illegal detention. The section 13(1) of PSA says, “when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation, against the order to the Government.”
Adding to the situations which land people in jails and they get to know it after they are released, there have been many such cases like Waqar’s. In a judgement passed by the High Court of Jammu and Kashmir on February 2, 2010 in favour of the petitioner, Mohammad Yaqoob Ganai son of Late Ali Mohd Ganie of district Pulwama (the case was versus State of J&K and others) by Justice Muzaffar Hussain Attar it says how the state misuses this law and doesn’t allow arrested persons to see the charges on which they are arrested. The judgement says that the material on which the reliance is placed by the detaining authority has not been provided to the detenu which has denied him right to make an effective representation. “The grounds of detention suffer from lack of application of mind and are vague,” adding further the judgement clarifies, “…though the detaining authority has relied upon the dossier furnished to him by Sr. Superintendent of Police, but the copy thereof has not been made available to the detenu. The detenu has been deprived of making effective representation which is his constitutional right as guaranteed under Article 22(5) of the Constitution of India. Further the detention order is rendered bad as the detaining authority himself fixed the period of detention which in law is not his power.”
The petitioners PSA was quashed and the court ordered to release him. Waqar’s case connects to this case. He has the same legal abuses which followed after his arrest. But despite the case being so simple and a cliché of errors by the state law enforcement agencies he has been in the jail for months now. Neither he nor his family knew that he has been booked under this act and what were the charges for which the act has been slapped on him. So the state has violated the violation (PSA) itself. The act has been widely condemned and there is a concrete consensus in the civil society to repeal it immediately but the state is using even such a draconian act ruthlessly on youths mostly.