By Natasha D’Mello
A Tale Of Two Teenagers
In the summer of 2017, I was seventeen years old. My days were spent actively lazing around, all “stressful” thoughts of holiday homework pushed to the back of my mind. The nights were my favourite. Summer holidays are, in essence, a free pass to sit up all night binge watching obscure shows that you’ve missed during the school year. And perhaps on one of those nights as I lay in bed, safe and secure, in a seemingly different world 17-year old Rauf Ahmed Wagay was being ripped away from his home and family by the police. Over the next five days, he was beaten and tortured. Instead of the carefree summer that most children look forward to all year, Rauf Ahmed spent the next 5 months in a prison, hundreds of kilometres away from his family.
Confused? I was too. The Indian criminal justice system doesn’t allow children under the age of 18 to be put in prison. It’s the law. But Rauf found no such recourse to our famed ‘child-friendly’ judicial process. Neither did 17-year-old Zubair Ahmad Shah, or 14-year old Mohammad Ibrahim Dar, for that matter.
All three boys fell victim to the Public Safety Act (PSA), which is widely applied in Jammu and Kashmir. Although they were later released by the Jammu and Kashmir High Court on the grounds that they were under-aged, one has to question why it was so easy for these young boys to be picked up and kept in jail for months at a time.
The Jammu and Kashmir Public Safety Act (PSA) allows for the arrest and detention of people without a warrant, without any specific charges being filed, and often for an unspecified period of time. While the law does make provisions for the detained person to be informed about why they have been detained, and also provide them with a chance to make a case against their detention, this does not seem to be followed.
It is also not uncommon for the PSA to be used as a catch-all by law enforcement, because while criminal law proceedings require meticulous adherence to process, a PSA order can stand on ‘vaguely prepared grounds’. There is also evidence of the PSA being used to keep people in police custody even after the order against them has been quashed. Read Amnesty India’s briefing on the Public Safety Act here.
I would imagine the experience of being in prison – the fear and uncertainty of what could happen – is extremely traumatic for a child. For Zubair Ahmad Shah, the experience was even more heart-breaking. His mother had passed away while he was being illegally detained. What made it worse was that none of the orders against him were found to be valid. This meant that he was unnecessarily put in jail. Calling it ‘the biggest tragedy’ he says, “…this will always hurt me in my life”.
The PSA is a law intended to be used only in exceptional cases, but the law itself is so broad that it lends itself well to arbitrary misuse. A fact to which Rauf Ahmed, Zubair and Mohammed Ibrahim can testify.
But even if you were to discount their words, it’s harder to ignore fact. Almost 80% of all PSA orders between March 2016 and July 2017 were quashed by the Jammu and Kashmir High Court. In essence, it means that 80% of all those people who were picked up, beaten, tortured, sometimes stripped naked and humiliated, and spent month after month in jail, should not have been arrested, or were wrongly arrested in the first place.
The disproportionate rate at which the PSA orders have been quashed also points to a larger issue – the widespread misuse of the law by the entire government machinery. The process starts with the Police who arrest and detain people without following proper procedure. This is followed by District Magistrates who issue detention orders without carefully considering the details of each case. When cases are put before an Advisory Board to be reviewed, 99% of the detention orders are confirmed. Over and above this, the state Home Department that oversees the implementation of this law rarely steps in to course correct the misuse.
As young children in school, we were always taught to believe that laws – in their entirety – were inherently good, and designed to protect the people of the country. But as a young adult, I find myself questioning the veracity of a law that routinely strips people of their human rights. I find myself questioning why – when there is evidence of misuse and overuse, over and above it being against international human rights law – why is such a law allowed to perpetuate?
In the 42 years of its existence, the PSA has ruined countless lives. The families of those who are detained face severe financial difficulties because they spend all of their life savings on legal procedures to get their loved ones out of jail. Finding work after being detained under the PSA is a herculean task. Zubair found it impossible to find a job since all employers require police verification, and his detention under PSA remains a permanent blot on his record. Rauf Ahmed still lives in fear of the police, who occasionally show up and harass him. Yet this law has never been repealed. The officials who perpetrate it have never been punished. The victims have never been compensated, even though their lives are forever changed.
Rauf Ahmed and I share very little in common, other than that we were both teenagers in 2017. But I will never be constantly looking over my shoulder, afraid that the police will turn up at my doorstep, with a free license to plunge me into the horrors of administrative detention once again. Because I was not born in Kashmir, and Rauf Ahmed was.
Note: The author is currently interning at Amnesty International India. The views expressed are those of the author’s and do not necessarily represent or reflect the views of Amnesty International India.