Geographical Displacement and Medical Negligence: The Plight of Kashmiris Detained under the Public Safety Act

Nazia Jan, 39, briskly readied her children despite the desolation that cloaks their home. This was no ordinary day: her husband, incarcerated in Uttar Pradesh’s Agra Central Jail, is seeing his family via video call. Since 5 August 2019, after the abrogation of Jammu and Kashmir’s special status, several Indian jails housing Kashmiri inmates have introduced weekly video calls that serve as the only connection for those detained, many of whom were arrested in the aftermath of the revocation of Article 370 and 35A.

According to a document issued by the Jammu and Kashmir Home Department in August 2023, 408 individuals detained under the Public Safety Act (PSA) are currently held in jails outside Jammu and Kashmir. The PSA grants authorities the power to detain any citizen for a period of up to two years with no trial or formal charges. This controversial law enables the arrest and detention of individuals without warrant or specific charges, often leading to extended periods of confinement without a clear timeframe.

Since 2018 a total of 1,122 individuals subjected to the PSA were relocated to prisons beyond Jammu and Kashmir – 44 in 2018, 295 in 2019, 146 in 2021, 585 in 2022 and 52 as of 1 August 2023. This relocation started after the then-Governor N.N. Vohra eliminated Section 10 of the PSA, which prevented authorities from moving individuals detained under the law to jails outside the former State. While the amendment of this safeguard faced opposition in the Supreme Court of India, Kashmiri authorities defended their decision, asserting that the protective measure was lifted for security reasons and to avoid the mingling of “hardcore” insurgents with other prisoners.

Authorities also cited “overcrowding, [the need to] prevent potential threats and enhance security within the correctional system” as reasons for their decision. They confirmed their motivation using the example of the escape of Pakistani militant commander Naveed Jatt from the Shri Maharaja Hari Singh hospital premises that led to subsequent violence. On 16 May 2023, the Supreme Court transferred the case to the High Court of Jammu and Kashmir, which is concurrently addressing a plea challenging the constitutional validity of the law. At the time of writing, the case is still under adjudication.

In 2020, a Right To Information (RTI) filed by two Kashmir University students highlighted the problem of overcrowded jails in Jammu and Kashmir. The data indicated that 4,031 prisoners were housed in fourteen jails, exceeding the designated capacity of 3,600. Subsequent 2022 National Crime Record Bureau (NCRB) data reiterated the issue, showing that 4,105 prisoners occupied the 14 jails, surpassing the capacity of 3,600.

Similarly to Nazia Jan’s, many families with relatives in prisons outside Jammu and Kashmir face difficulties in visiting them, primarily due to financial limitations.

On 14 March 2020, Nisar Ahmed Ganaie, 33, the sole provider for his family, left home around noon heading towards Sopore market where he ran a confectionery shop. His family was waiting for him when a neighbor came to inform them that Ganaie had been taken into custody by the Police. When the family reached out to the local police station and received no information about his arrest, they hoped he would be released soon.

However, it wasn’t until 23 March that the family learned that Ganaie had been arrested under the Arms Act, 1959, in connection to an illegal arms delivery case. A press release from the Sopore Police on that day stated that Ganaie was one of four men apprehended the day before near the district hospital. The press release included photographs of eight assault rifles, magazines and ammunition. In 2021, Ganaie was booked under the Public Safety Act and was moved to Gurgaon. The family has been unable to visit him since for lack of financial means.

As Nisar Ahmed Ganaie was the sole breadwinner, after his arrest the family faced great challenges including the cancellation of his sister’s wedding because of the financial constraints they endured. Left with no means to cover daily expenses, they now rely on the local Mosque for support. “Survival is uncertain. If the committee helps, we manage to eat; however, most days are a struggle. It has been over a year since we last saw him; he was shifted to Gurgaon jail and we lack the funds to travel. The plight of Kashmiri prisoners is heartbreaking. Families like ours, with the main earners jailed, find themselves begging for survival,” told us Nisar Ahmed Ganaie’s sister.

Since 2018, hundreds of Kashmiri detainees under the PSA have been transferred to jails far from their homes in Uttar Pradesh and Haryana, causing great distress to both detainees and their families. The psychological trauma of relocation exacerbates deteriorating health of some of these prisoners who are not provided basic medical attention and are housed in jails that lack adequate medical services.

A Kashmiri prisoner, who was jailed in Bareilly Jail in Uttar Pradesh after the abrogation of Article 370 and kept in solitary confinement, told us in an interview that the medical attention provided to the inmates is extremely poor. “For everything they gave us painkillers or sleeping pills, I do not remember any cell in the jail without those two drugs,” said the prisoner, who wished to remain anonymous. “We spent entire nights awake as we tried to keep insects and bugs away. We are also not used to such dietary habits or sultry weather. It just was too much for us to bear and all of this had a massive impact on our physical and mental health.”

On 4 August 2021, Sameer Ahmed Khan, a 28-year-old auto driver, was arrested by the Police at his auto stand in Malaknag, Anantnag. His family was then notified that Khan had been subjected to the PSA and relocated to Bareilly. The family told us that a few months after his arrest, Khan was diagnosed with cancer, but the authorities did nothing about it. Khan was referred to King George’s Medical University (K.G.M.U.), Lucknow for seeking better treatment, but the lack of a clear medical plan left him without certainty about his condition as he continues to be detained at Central Jail-2 Bareilly. Medical documents that the family shared with us show that Khan raised concerns about dental issues. In response, a dental surgeon from District Hospital Bareilly examined him on 11 March 2023, suspecting a potential case of cancer thus recommending a biopsy. Khan was transferred to Bareilly District Hospital for further investigation and expert opinion and then to K.G.M.U. Lucknow.  Despite a provisional diagnosis of fibroma, no treatment was prescribed and Khan was sent back to jail.

This kind of widespread negligence raises serious concerns about the adequacy of medical care provided to inmates in Indian jails.

In December 2019, 66-year-old Kashmiri prisoner Ghulam Muhammad Bhat passed away in a jail in Uttar Pradesh where he was detained under the PSA. Hailing from Kulangam, Handwara, Bhat was one of the numerous Kashmiris detained following the revocation of Article 370. According to the National Crime Records Bureau’s prison statistics for 2019, 1,775 prisoners lost their lives while in judicial custody. Out of these, 406 died of heart-related illnesses or medical complications that could have been averted with effective medical facilities. The disproportionately high number of prisoners’ deaths, particularly due to preventable health complications, highlights a systemic failure in providing adequate healthcare within the prison system.

Irfan Hafiz Lone, an advocate and legal rights expert from Kashmir, told us in an interview that to address this issue effectively, reforms should prioritize substantial improvements in medical infrastructure, staff training and healthcare system within prisons. He added that “fostering transparency and accountability in the management of prisoner health is imperative. Without swift and substantial changes, the fundamental right to health for all, even within the confines of the penal system, remains at risk, perpetuating a concerning pattern of avoidable tragedies.”

Over time, a growing dissent emerged advocating for the repeal of the PSA. Rights activists have asked the authorities in Jammu and Kashmir to end the use of the Act to arbitrarily detain people, including children. Amnesty International India, Human Rights Watch, and the International Commission of Jurists (ICJ) have said that the PSA violates international due process standards and should be repealed. “The indefinite detention of individuals without charges only contributes to a sense of lawlessness,” Meenakshi Ganguly, South Asia Director at Human Rights Watch said in statement in 2016.

In order to initiate the process that leads to detention under the PSA, a law enforcement representative has to compile a dossier outlining the individual’s activities deemed a threat to national security or public order. Subsequently, a Superintendent of Police, or a higher-ranking officer, submits the dossier to the District Magistrate, who may then issue a warrant for detention. After the Police execute the warrant and detain the individual, the case undergoes review by an advisory board within three to six months. PSA detention orders can be authorized by divisional commissioners or district magistrates and authorities are not obligated to disclose any detail about the detention.

Enacted in 1978, the PSA mandated the establishment of an Advisory Board, whose members were required to have specific judicial qualifications to make sure there was proper legal monitoring and oversight of the process. In 2018, the clause was nullified by the then governor of Jammu and Kashmir, N.N. Vohra, through the introduction of an ordinance that amended the Public Safety Act (PSA). The central government officially approved the ordinance on 31 March 2018.

Advocate Irfan Hafeez Lone told us that when booked under the PSA, detainees are punished for crimes that are yet to be proven in the court of law and underscored the legal principle that individuals are presumed innocent until proven guilty. “The number of undertrials is quite high and the process itself has become punishment,” he said.

Sajad Gul, a 25-year-old journalism student from Shahgund, Hajin Bandipora, spent nearly 500 days in jails outside Kashmir after he was booked under the PSA in 2022 on charges of allegedly inciting violence in Kashmir. On 9 November 2023, however, the Court declared his detention null and void, emphasizing that the reasons outlined in Gul’s PSA dossier failed to establish any complicity in unlawful activities. The Court order explicitly stated: “It is nowhere stated as to how the detenu had disrupted the public order, creating any alleged enmity, since there is no specific instance in any of the allegations leveled against him to show that he had been working against national interests.” At the time of writing, Gul is yet to be released.

His family said that problems started on 9 February 2019, when Gul reported that a local tehsildar (revenue official) was allegedly “harassing and threatening” residents during an anti-encroachment drive. The following day, the tehsildar purportedly targeted Gul’s and his relatives’ residences. This led to protests and minor clashes between locals and officials, resulting in the legal action taken by the Hajin Police Station.

The Police dossier alleged that Gul, described as “well-educated,” had the potential to exploit social media to incite the public against the government. As a journalist, he was accused of prioritizing the promotion of animosity over reporting on the welfare of Jammu and Kashmir. According to the dossier, Gul was consistently on the lookout for anti-national or anti-social tweets, maintaining a persistently critical stance toward Union Territory policies. The dossier claimed that he frequently shared tweets without factual verification, intending to stir up opposition against the government. Additionally, Gul was accused of assuming the role of a self-proclaimed advocate for terrorists and their families, often addressing issues that were deemed harmful to national interests, alleging connections with “anti-national gangs” in Pakistan.

Gul’s mother protested her son’s innocence and told us that transferring detainees in jails away from their homes is a severe punishment that extends beyond the detention itself causing additional hardship to both the inmates and the families. She contends that Gul’s only “crime” was speaking the truth and for this the family was denied the opportunity to meet him and “to communicate over the phone. Financial constraints further hinder our ability to travel to Uttar Pradesh.”

Irfan Hafeez Lone, who is actively involved in representing various Kashmiris detained in prisons outside Jammu and Kashmir, highlighted the numerous challenges in safeguarding the legal rights of prisoners held in distant locations. Many of these prisoners come from economically disadvantaged backgrounds, making it difficult for the families to visit their incarcerated loved ones. “Most of the Kashmiris booked under the Public Safety Act suffer on multiple fronts. I have several clients who do not even have money to travel to Court on hearings,” Lone said. He stated that the government’s policy of moving prisoners hundreds of miles away from their home is a violation of the jail rights of prisoners.

The violation of the rule of law becomes starkly apparent when authorities neglect to adhere to court orders for the release of individuals following the quashing of a PSA detention, Lone says. “The legal framework dictates that once the court nullifies the PSA and no additional charges are levied against the individual, their continued detention is not only unlawful but also stands in direct contradiction to the principles of justice,” Lone said. “As legal practitioners we have witnessed the struggles of numerous families navigating the challenges of having a kin detained under laws like the PSA. These families, often financially strained, endure significant hardships to even attend the court proceedings. The plight is even more profound for families of those imprisoned outside their state, where the financial and logistical burdens are intensified.” He added that “these individuals should ideally be jailed within their own state to prevent undue suffering for their families.”

Lone used as an example of the emotional toll of such detentions, the “heart-wrenching story” of a poor, disabled neighbor whose son has been incarcerated for years. Despite legal efforts, the family couldn’t secure the son’s release for even a day to attend his sister’s wedding. This story mirrors the experiences of many families grappling with similar circumstances. Lone also noted that “there are many people whose PSA’s [accusations] have been quashed but are still in jail.” This discrepancy between legal decisions and practical outcomes raises serious questions about the effectiveness of the justice system and the safeguarding of individual rights.

Advocate Lone further underscored the dual nature of the use of the PSA stating that there is a need for critical examination of the application of such laws, while emphasizing the importance of a balanced and just legal system that ensures the protection of rights while addressing legitimate security concerns. As more families are coming to Kashmir’s courts, hoping for their loved ones to be released, the imperative for reform in administering laws like the PSA becomes urgent, so that justice and human rights are upheld for everyone.