By Dr. P.S. Sahni & Shobha Aggarwal
Syed Ali Shah Geelani, Chairman, All Parties Hurriyat Conference has appealed to the people to observe solidarity with the Kashmiri prisoners on Friday the 17 June, 2016. Geelani has called the continuous imprisonment of pro-freedom leader Masarat Alam Bhat since 2010 as extremely cruel. He lamented the silence of the State Government as also of the State High Court, which could have taken suomotu action for getting MasaratAlam released.
He has demanded:
i. Release of all the political prisoners including the pro-freedom leaders before Eid.
ii. That status of the pro-freedom leaders who are serving life imprisonment and other political prisoners lodged in Tihar Jail, Delhi as well as a Kashmiri detainee in Gujarat Jail should be accepted as that of political prisoners and has demanded their unconditional release.
iii. Release of dozens of Tehreek-e-Hurriyat leaders arrested under preventive detention.
iv. Provision of basic amenities to prisoners as also treatment of ill prisoners in the jails.
Geelanihas appealed to the human rights organizations to ensure the release of Kashmiri prisoners.The aforementioned demands are just, long-standing and democratic. This is the bare minimum that the Jammu and Kashmir (J & K) state authorities and the High Court could ensure as a first step.
Continued incarceration of Masarat Alam in jail, inspite of bail
The significant and eye-opening pronouncements made by the Chief Judicial Magistrate (CJM), Budgam, MasaratRohee while granting bail to MasaratAlamon 25 May, 2016 in a case (FIR 92/2015)registered at police station Budgam against him for ‘sedition’charges are a slap on the face of the authorities.Masarat Alam in this particular case was arrested in April 2015 after Pakistani flags were raised at Geelani’s rally.
The court observed:
* “In toto, 27 cases have been registered and if 90 days are given to each case, it would amount to 6 years and 7 months before the accused sees the light of the day from the dungeons.”
* “If the accused is anti-national and detrimental to the society and public at large, let the state discharge its duty by bringing the guilty to book so that they are punished suitably as per the mandate of law.”
* “However, despite the fact that the State alleges the accused to be anti-national, the right of the accused as guaranteed by the constitution under principles of natural justice cannot be denied indefinitely.”
* “If such a trend is sanctioned by the courts of law and the law interpreted in that manner, the way Ld CPO seeks the same to be interpreted, the might of state with an approximate number of more than 200 Police stations throughout the state of J & K with every Police station registering an FIR, granting 90 days of exhaust remand in each FIR, before the accused reaches the Court of law trial, he would have already spent 49 years and 3 months in jail.”
* “Thus negating the whole presumption of innocence of the accused as guaranteed to him by the law. Such acts of the state not only weaken the criminal justice system but also create an alienation between the state and its population where it become ‘us’ and ‘them’ and an individual no longer feels himself to be the part of the state.”
* “The fact remains that the accused is involved in the offences as alleged in the FIR, but the accused has not only been detained for 90 days but many 90 days commencing from 15.4.2015 and is under continuous detention ever since without trial despite a high powered SIT investigating the same which is not likely to conclude within reasonable time, yet the fact remains that the lodgment of the accused in Baramulla Sub-Jail is sufficient enough to substantiate that out of 27 FIRS only two are under investigation in District Baramulla.”
* “The custody of the accused being requisitioned by Police station Shaheedgunj, though the Police station Shaheedgunj do not require him for custodial interrogation in Police remand but seek his detention in judicial custody is enough to hold that accused is not required by the investigation but needs to be incarcerated in judicial custody, extra judicially.”
* “This kind of custody in the opinion of this Court amounts to extra judicial custody which cannot be sanctioned by any legal means. Therefore, keeping the above facts, observation and submission in view the accused is named in case FIR No. 92/2015 of Police station Budgam is released on bail.”
The CJM had observed that even cases since 1999 and 2006 were still pending investigation; and that only in 12 out of 27 cases challan has been produced while 15 cases are still being investigated.
Masarat Alam, of course, continues to be in jail inspite of the bail order. In any case the aforementioned quotes from the judgement delivered by the CJM should be made compulsory reading for all law students, lawyers, judges, social and political activists and all those who cherish freedom. One has to constantly remind oneself that these quotes are not from a Report of Amnesty International/ Human Rights Watch/ civil liberties and democratic rights bodies in India; nor are these quotes the outpourings of “decadent communists”. So something must be fundamentally wrong with the criminal justice system which permits scores of cases to be filed and kept pending against political activists even as all the norms and procedures of Anglo-Saxon jurisprudence are smashed to smithereens. The political dispensation in Delhi needs to be reminded that it is not just the likes of MasaratAlam who are on trial; in the final analysis it is the higher judiciary as also the Indian democracy which is on trial; and the whole world watches with concern. Even the fourth pillar of Indian democracy viz the so called free press gets ultra-nationalistic and indulges in biased and untruthful reporting.In fact the mainstream journalists in India covering Kashmir function no different from the American embedded journalists covering the war on Iraq, Afghanistan and so on.
Masarat Alam has spent more years in jail than Jawaharlal Nehru and Mohandas Karamchand Gandhi did individually during the freedom struggle. The British dealt with these establishment freedom fighters as befits their status and role as freedom fighters. The Indian state treats the frontline leaders struggling for right to self-determination of Kashmiri people with utter contempt. Recently the Prime Minister of India referred to overcoming the “hesitations of history” while delivering his speech at the joint session of U.S. congress on 8 June, 2016. Could he extend this doctrine in relation to Kashmir and resolve the long standing issues? As a first step he could instruct the BharatiyaJanata Party in J & K – a coalition partner with the Peoples Democratic Party– to ensure that Kashmiri political prisoners are released.
[The writers are members of PIL Watch Group and have been campaigning for ‘bail not jail’. Email: firstname.lastname@example.org]
As the judgment is not available on the website of the court till date, the quotes from the judgement are reproduced from the newspaper Greater Kashmir issue dated 15 June, 2016.