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Amnesty’s Report On The (Mis)Use Of Public Safety Act In J&K Counters The Govt’s Narrative

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Amnesty International, India recently released a report on the misuse of the Public Safety Act (PSA) in Kashmir on June 12, 2019, titled ‘Tyranny of a lawless law: Detention without charge or trial under the J&K Public Safety Act.’ The report highlights the violation of fundamental rights provided to people. The Act allows authorities to arrest a person without any trial for six months.

Any arrested person has a right to judicial review of their detention. However, the PSA makes no such provision for ordinary judicial review. Instead, an advisory board, which, as the reports mentions, “lacks independence from the government, reviews all orders.” The board provides for no opportunity to appeal, there is a bar on legal representation for the detained person, and the Board’s report is confidential.

The report also points out how “detained persons have the right to communicate with and be represented by a counsel of their choice. However, Section 16(5) of the PSA explicitly stipulates that legal counsel cannot represent a detained person before the Advisory Board.” All individuals have the right to a remedy under international human rights law and standards, according to Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR). However, Section 22 of the PSA provides a complete bar on criminal, civil or “any other legal proceedings against any person for anything done or intended to be done in good faith in pursuance of the provisions of this Act. By protecting officials even in situations where PSA is abused, this section enables impunity.” The Armed Forces Special Powers Act (AFSPA) 1989, which is in force in Jammu and Kashmir, contains a provision which is similar to the PSA and has often been used to block accountability.

While acceding to the ICCPR, India made a reservation to Article 9 of the ICCPR which prohibits arbitrary arrest and detention, requires any deprivation of liberty to be according to law, and obliges parties to allow those deprived of their liberty to challenge their imprisonment through the courts. India declared that it “shall be so applied as to be in consonance with the provisions of clauses (3) to (7) of Article 22 of the Constitution of India.” Article 22(3) weakens the protections for arrested persons that are present in Article 22(1) and 22(2) for persons subjected to administrative or “preventive” detention. The right to be produced before a magistrate within 24 hours of arrest and to consult and be represented by a lawyer of choice, which is otherwise available to persons arrested in India, is unavailable to persons placed under administrative detention.

The Amnesty report points put how “International human rights standards provide that detained persons should be ordinarily kept in prisons close to their homes.” While the PSA earlier specifically stated that detainees who are permanent residents of Jammu and Kashmir should not be lodged in jails outside the state, in August 2018, the authorities amended the Act to remove the provision.

The text of the PSA itself violates international human rights law and standards, but even the limited safeguards provided within the law are routinely ignored, and the law misused, by the authorities and the J&K police. In a written reply to the Legislative Assembly of Jammu and Kashmir on January 2017, the then-Chief Minister Mehbooba Mufti stated that from 2007 to 2016, over 2400 PSA detention orders were passed, of which about 58% were quashed by courts. The CM stated in the Assembly, in January 2018, that 525 people had been detained under the PSA in 2016, and 201 in 2017.

Government statistics, however, are often inconsistent. Amnesty International obtained information through Right to Information (RTI) applications, which stated that over 1000 people were detained under the PSA between March 2016 and August 2017. The report also states that the Advisory Board almost always upholds detention orders passed by executive officials.

Through applications filed under the J&K RTI Act by two law students from the University of Kashmir, it was revealed that between April 2016 and mid-December 2017, the state government referred 1004 detention orders to the Board. Amnesty’s report says that “In a staggering 99% of these cases, the Board recommended the confirmation of the detention order. When these cases were challenged in court, though, they were frequently struck down. Between March 2016 and July 2017, 941 petitions were filed before the J&K High Court seeking quashing of detention orders. The Court quashed 764 detention orders – 81% of all orders – in this time period.”

Section 19 of the PSA states that “There shall be no bar to making of a fresh order of detention against a person on the same facts as an earlier order of detention—where continuance is not legal or has been revoked due to technical reasons.” The report goes on to talk about how the authorities frequently issue repeat detention orders on the same grounds as earlier orders, arguing that the earlier orders had been quashed on “technical grounds” even when they were quashed on substantive grounds. This then contributes to creating a “revolving-door detention” system, where detainees whose PSA orders are quashed are immediately detained again under fresh orders on identical or similar grounds. Amnesty International India found 71 cases of revolving-door detentions, where authorities had either issued a new detention order or implicated a detainee in a new FIR, to ensure that they remain in detention.

The PSA prohibits the detention of children, following an amendment to the Act in 2012. The report states how Amnesty International India has, however, “documented several instances where executive authorities have ordered the detention of minors, even when presented with evidence of their true age. In no case did the authorities appear to try to determine the age of the detainee.”

The report points out how the “informal justice system” that is the PSA also facilitates a range of other human rights violations, including the arbitrary detention of detainees in police stations before detention orders are issued. Amnesty’s report talks about how many cases begin with the person being taken “unofficially” for an investigation to a local police station and kept in custody, without any legal basis, before they are arrested under an FIR or a PSA detention order, and none of the official records reflect the period of interrogation. The duration of unlawful detention, which often entails spates of “interrogations”, ranged from two days to a month, the report mentions. Such unlawful detention violates detainees’ rights, under India’s Constitution, to be produced before a magistrate within twenty-four hours of their detention. Some of the PSA detainees whose cases were analysed in the course of the report also spoke of facing or witnessing torture or other ill-treatment, including beating, stripping and electric shocks.

The report reiterates how the “PSA’s parallel system does not just co-exist with the criminal justice system but is also used to actively infringe detainees’ fair trial rights by keeping them in detention even after courts have ordered their release on bail. Instead of appealing against the rulings granting release on bail, authorities merely use the charges against the suspect as grounds to detain them under the PSA, in effect overturning the principle of presumption of innocence.”

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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