This communication from the UN Special Rapporteurs on promotion and protection of human rights and fundamental freedoms while countering terrorism the situation of human rights defenders, promotion and protection of freedom of opinion and expression, peaceful assembly and association and the situation of human rights defenders and the UN Working Group on Arbitrary Detention analyzes the counter-terrorism framework in Jammu & Kashmir—including relevant provisions of the Unlawful Activities Prevention Act, Public Safety Act, National Security Act, Code of Criminal Procedure, Penal Code, and Foreign Contribution Regulation Act—and highlights its ripeness for human rights abuse.
Topics: counter-terrorism legislative and regulatory framwork in Jammu & Kashmir
Terms: Unlawful Activities (Prevention) Act (UAPA), Public Safety Act (PSA), National Security Act, Code of Criminal Procedure, Penal Code, and Foreign Contribution Regulation Act (FCRA), abuse of counter-terror laws, reprisals
We highlight that the present architecture—including relevant provisions of the Unlawful Activities Prevention Act, Public Safety Act, National Security Act, Code of Criminal Procedure, Penal Code, and Foreign Contribution Regulation Act—is ripe for human rights abuse in potential violation of your Excellency’s Government’s obligations under international human rights law, particularly the obligation to respect, protect, and fulfill the rights to equality and non-discrimination, the rights to freedom of expression and freedom of association, and the right of liberty and security of person. We especially note the undue harms that could arise from the concurrent and/or consecutive application of these laws and regulations against the same individual, group, or entity, thus compounding the potential human rights consequences on them, as well as their families and communities….
We would like to recall to your Excellency’s Government the previous communication IND 7/2020 regarding the compatibility of the Unlawful Activities Prevention Act (UAPA) with India’s international human rights obligations, including as applied in Jammu and Kashmir. We echo in particular our observations regarding the overbroad and imprecise underlying definitions and criteria for a “terrorist threat” and “terrorist act” (IND 7/2020, pp.3-6). We previously underscored the dangerous risk of conflating human rights and civil society activities with terrorist activities (IND 7/2020, p. 7), and we continue to highlight the acute dangers of such conflation and potential enforcement of the UAPA against human rights defenders and civil society members, including those that report on alleged human rights violations in the region or express opinions criticizing the revocation of Jammu and Kashmir’s autonomous status or other political decisions. In this regard, we wish to emphasize your Excellency’s Government’s obligation to promote the rights to freedom of expression and association and non-discrimination, including on the basis of religion.
We stress that counter-terrorism and broader national security grounds must not be weaponized as a tool to repress fundamental rights and freedoms. Any rights limitations on these grounds must meet the objective criteria of proportionality, necessity, legality, and non-discrimination. We stress in this context that “[t]he onus is on the Government to prove that a threat to one of the grounds for limitation exists and that the measures are taken to deal with the threat” (A/61/267, para. 20).
We further reiterate the observations previously expressed by Special Procedures mandate-holders regarding the concentration of powers with the Executive under the UAPA and the vulnerability of such powers to abuse. We also reiterate our observations about the expansive powers to investigate, seize property, and designate and detainee individuals, including through an encroachment into the “pre-criminal” sphere based solely on suspicions of likelihood to threaten or strike terror (IND 7/2020, pp. 6-7). The provision for preventive detention without charge or trial, expanding your Excellency’s Government standard pretrial detention of 60-90 days to 180 days, poses particular challenges to the right to liberty and security, as well as fundamental due process and fair trial rights under international human rights law, such as these right to presumption of innocence. We appeal to your Excellency's Government to take all necessary measures to guarantee their rights not to be deprived arbitrarily of their liberty and to fair proceedings before an independent and impartial tribunal, in accordance with articles 9and 14 ICCPR. We also underscore in this context the right to protection of the law against interference or attacks on a person’s privacy, family, home, honor, and reputation….
We note that the Public Safety Act(PSA) raises distinct human rights challenges, including because it grants authorities expansive powers and discretion to detain individuals based on what are vague and conclusory grounds allegedly related to terrorism, including due to alleged “terrorist activities,” “terrorist funding,” “disruption to or activities prejudicial to the maintenance of public peace and order,” “anti-national activities,” “sedition,”“creating panic,” or “motivating people to secede.” Section 8 of the PSA, labeled ‘Detention of Certain Persons,’ authorizes preventive detention of up to two years if the authorities believe that the person will act in any manner “prejudicial to the security of the State or the maintenance of the public order.” We recall that the failure to use precise and unambiguous language in relation to terrorism and national security offences fundamentally affects the protection of a range of fundamental freedoms and rights. We observe that the PSA introduces great ambiguity and vulnerability to abuse by State officials as it does not define these fundamental terms including “security of the State” of “public order.”
We highlight that, as with the UAPA,the PSA may be invoked and applied against individuals like political dissidents, public figures, and civil society partaking in legitimate activities, in contravention of the rights to freedom of expression and freedom of association under articles19 and 22 of the ICCPR. In this context, we remind your Excellency’s Government that the Human Rights Council has expressed grave concern that “in some instances,national security and counter-terrorism legislation and other measures . . .have been misused to target human rights defenders or have hindered their work and endangered their safety in a manner contrary to international law” (see, e.g.,A/HRC/RES/25/18). We specifically remind your Excellency’s Government that a vague and broad scope of anti-terrorism legislation risks contravening the principle of legality, among others (CCPR/C/GC/34, para. 50).
We further stress that arrest or detention as punishment for the legitimate exercise of other rights, including the right to freedom of opinion and expression, is per se arbitrary (CCPR/C/GC/35).
Further, we understand that preventive detention under the PSA may be invoked by administrative authorities based on a dossier, distinct from a warrant (section 8). Section 13(2) of the PSA allows the detaining authority to refrain from disclosing “any facts [of detention]which it considers to be against public interest” to the detainee. These provisions raise serious arbitrary detention, due process, and fair trial challenges in potential violation of articles 9 and 14 of the ICCPR. They also serve to weaken in substance and effect Section 13(1) of the PSA, which requires ‘promptness’ to communicate the grounds of detention to the detainee but also allows for ‘exceptional circumstances’ where delayed disclosure is warranted. Moreover, the PSA is premised on a ‘subjective satisfaction’ standard, which allows authorities to infer (to their subjective satisfaction), from previous conduct or associations with unlawful groups, that a person is likely to act prejudicially to the State and detain the person on that basis. We note that this burden of proof is so low as to risk contravening the international law requirement of legality and may result in infringement of their right to be free from arbitrary deprivation of liberty as protected by article 9 of the ICCPR. We echo in this context the decades-long stance of the UN Human Rights Committee, expressing concerns about your Excellency’s Government’s reliance on special powers under legislation including the Public Safety Act and National Security Act(CCPR/C/79/Add.81, para. 18).
We also note that Section 10 of the PSA allows for the transfer of detainees to different jails and centers outside of the Jammu and Kashmir region. We underscore the importance of guaranteeing access to counsel and communication to family members of detainee whereabouts in line with article 14 of the ICCPR. We stress that families must not be left to file missing persons requests with authorities when their family members are detained and taken into custody. We also underscore in this context Section 5 of the Mandela Rules guaranteeing detainees families visits and communication, as well as notification to families of detainee imprisonment, serious illnesses, injury, death, and transfers to other detention centers and institutions.
We find that several other provisions of the PSA appear to be vulnerable to abuse. The Act does not allow for ordinary access to a judicial authority, nor does it provide for judicial review of grounds of detention or any independent appeals process in potential contravention of the right to be free of arbitrary arrest and deprivation of liberty. Section 15 provides that a detention order be referred within four weeks of the date of detention to the Advisory Board. Section 16(5) provides a bar on legal representation for detainees and requires proceedings of the Advisory Board to be confidential. These sections raise significant human rights challenges with regard to the right to counsel and adequate legal aid as protected by article 14 of the ICCPR. Sections 18(2) allow for detention of foreign nationals—including “a person residing in the area of the State under the occupation of Pakistan” (section 8(b))—for indefinite periods “in case his expulsion from the State has not been made possible.”
Basic procedural safeguards appear to be missing in the PSA. The PSA does not mandate a trial nor contain any limits on the number of times the government may impose a new period of detention invoking the Act. Section 19(2) provides “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 the prior detention was not based on a technical error or revoked by apprehension. This provision may be vulnerable to abuse by authorities that may wish to deliver repeated detention charges and orders on the same grounds in order to delay the release of detainees, or to maintain their detention indefinitely without trial.We stress that indefinite detention absolutely contravenes the protections guaranteed by article 9 of the ICCPR.
Lastly, we observe that Section 22 of the PSA provides immunity and a complete bar on criminal, civil, or legal proceedings against any person for anything done or intended to be done in good faith in pursuance of the provisions of the Act.
We find that this section raises significant issues of abridging remedies guaranteed to individuals in article 2(3) of the ICCPR. We observe that these provisions collectively and impermissibly broaden the discretionary powers of authorities.
For all of the above reasons, we observe that without rigorous procedural safeguards and independent appeals mechanisms, the PSA including its preventive detention provisions may be used by authorities to quell legitimate expression, including on discriminatory grounds against Muslim and other minorities and against youth and adolescent boys, in potential violation of the well-settled rights to equal treatment before law and non-discrimination under the ICCPR. We note in this regard the related obligations of your Excellency’s Government under the ICERD and CRC.
We further underscore that counter-terrorism should, to the broadest possible extent, be entrusted to civilian authorities whose functions relate to combating crime and whose performance of counter-terrorism functions is pursuant to ordinary powers (A/HRC/16/51, Annex, Practice 3(1))….
We understand that since the revocation of Jammu and Kashmir’s autonomous status, the National Security Act (NSA)now applies throughout the region, and operates to complement the above discussed counter-terrorism laws. We highlight that the NSA may be misused either alone or in conjunction with the UAPA and PSA, including to further extend preventive detention absent charge or trial (up to 12 months without trial), raising potential due process and fair trial rights violations. As with the terminological vagueness of “public order” under the PSA, we note that the “public order” and national security grounds of the NSA may be overbroad, imprecise, and vulnerable to human rights abuse. Among other interpretations, we understand that the NSA can be invoked by law enforcement officials in cases of alleged religious conversion, cow slaughter, among other religious acts, and may therefore be particularly vulnerable to disproportionate enforcement against Muslim and other minorities. We reiterate that under international human rights law, the burden is on your Excellency’s Government to demonstrate that a legitimate national security exists and that the measures taken in fact deal with that threat (A/61/267, para. 20).
…We note that in conjunction with the UAPA, PSA, and NSA, the Code of Criminal Procedure (CrPC) also provides for detention and pursuant to sections 107 and 151, may be invoked in cases where, among others, individuals have criticized the abrogation of Jammu and Kashmir’s autonomous status or otherwise expressed political dissent. The CrPC stipulates the joint application of these two provisions whereby an individual may be arrested under section 151 and proceedings against the individual can then be initiated under section 107. These provisions allow for arrests for “nuisance or apprehended danger” and the “power to issue order in urgent cases of nuisance or apprehended danger” without orders from the Magistrate or a warrant, so long as the police officer believes the offense cannot be prevented otherwise. Notwithstanding the language in the provision suggesting its exceptional use only in emergency situations, we observe that such expansive discretionary powers in the hands of law enforcement,absent adequate human rights safeguards, are vulnerable to arbitrary and discriminatory enforcement….
We highlight shortcomings in provisions of the Indian Penal Code that risk criminalizing protected expression and contravening the basic requirement of legality.
We understand that the Penal Code maybe invoked separately and also in conjunction with the UAPA and other counter-terrorism and national security laws. We note that the Penal Code may be used to suppress voices of legitimate dissent including by human rights defenders, journalists,political dissidents, and minorities. We stress that labeling such lawful dissent as acts of terrorism, sedition, or other criminal offenses would per se violate the fundamental right to freedom of opinion and expression and would also pose significant risks of violating the rights to freedom of religion or belief and association, among fundamental rights and freedoms. We underscore that the Human Rights Committee in General Comment No. 34 has clearly stated that the right to seek, receive, and impart information and ideas of all kinds as stated in Article 19 of the ICCPR includes political discourse, commentary on one’s own and public affairs, cultural and artistic expression, and discussion of human rights, as well as expression of criticism or dissent….
We stress that the Foreign Contribution Regulation Act (FCRA) may be abused to abridge the rights of human rights defenders and civil society actors to access foreign funding as protected by the right to freedom of association. We underscore that the right to freedom of association under the ICCPR relates not only to the right to form and register, but also guarantees the right of such an association to freely carry out its legitimate activities, including the freedom “to solicit and receive voluntary financial and other contributions”(A/HRC/RES/22/6).