The American Bar Association has written to India’s Supreme Court saying police behaviour in Kashmir has become a challenge to the independence of the judiciary, citing how Valley journalists were being booked under the stringent Public Safety Act after receiving bail in various cases.
Unless the apex court intervenes, the police may increasingly rely on the PSA to curb media freedom in Kashmir, says the letter from the ABA, which describes itself as the world’ largest voluntary association of lawyers, judges and other legal professionals.
The PSA allows preventive detention without trial for up to two years, subject to reviews every six months, and makes bail difficult to obtain.
The letter urges the apex court to consider public interest pleas from human rights defenders about the use of the PSA and its impact on the independence of the judiciary.
It also asks the top court to speedily hear and resolve habeas petitions moved by PSA detainees alleging procedural violations, and take suo motu cognisance of administrative decisions to charge individuals, especially journalists, under the PSA.
The letter expresses concern at the PSA detentions of journalists Sajad Gul and Fahad Shah since January 16 and March 14, respectively.
“Both the cases have not only impacted the journalists in India but the behaviour of the police and prosecutors had challenged the independence of India’s judiciary,” the letter from ABA president Reginald M. Turner says.
“Without intervention from the Supreme Court of India, the police may continue to rely on the PSA to infringe on the freedom of the press in Jammu and Kashmir. If so, India’s judiciary would be effectively denied the opportunity to assess defendants’ rights.”
Three journalists — Shah, Gul and Aasif Sultan — are among more than 500 people held in the Valley under the PSA. All three had received bail from courts before being booked under the stringent act. Sultan has been behind bars for four years.
“Despite lower court orders to release Gul and Shah from prison, police and prosecutors are challenging the will of the judiciary by rearresting the defendants and holding them without a trial under a different charge,” the letter says.
The ABA has underlined that Shah and Gul were previously arrested under the anti-terror UAPA allegedly for “inciting violence throughout their legitimate journalists’ work”, but the courts had found the charges “lacking in substance”.
Gul’s PSA dossier acknowledged that he was being rearrested as there was “every apprehension” that he might get “bailed out” by the courts, the letter says.
“Such action by the police and prosecutors violates the basic foundational principle of India’s constitution, which guarantees an independent judiciary and the rule of law,” it adds.
It also violates “Principle 2 of the UN Basic Principles on the Independence of the Judiciary, which asserts that ‘the judiciary shall decide matters before them impartially, based on facts and by the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason’.”
Shah, the letter says, was granted bail twice in two UAPA cases but before a third bail hearing, he was rearrested under the PSA.
The letter argues that Article 22 of the Constitution allows preventive detention only in limited circumstances.
The US-based Committee to Protect Journalists (CPJ) has expressed concern about the health of Sultan, who was recently shifted to a jail in Agra, Uttar Pradesh.
Steven Butler, Asia programme coordinator at the CPJ, tweeted that it was time for Indian authorities to set Sultan free after “nearly four years in jail and no criminal conviction”.
He underlined that Agra was “experiencing a record heat wave and power outages”.
