The state and its security agencies, it seems, have not yet understood the importance of right to liberty. But how can they? They have been abusing it for the past sixty years. Bad habits die hard!
Besides right to interview with relatives at least once in a week, the prisoners have right o speedy disposal of their petitions, speedy trial, right to adequate medicare and a number of other rights mentioned in the jail manual.
Seepdy disposal of petitions: The prisoners have a right to speedy disposal of their habeas corpus petitions. The state high court has framed rules that seek disposal of the petitions within fifteen days. Surprisingly the state government approved the rules but nothing has changed.
Giving details, the law minister, Ali Muhammad Sagar said: “Yes, I have given the approval of rules and regulations for courts and Case Flow Management in the High Court. I approved the matter the day it came to my office. These will go a long way in providing speedy justice in different nature of cases.”
As per the Case Flow Management Rules the HC judges shall have to dispose off the writ of habeas corpus, through which a person can seek relief from their unlawful detention or that of another person, within a period of 15-days henceforth.
The Law department is giving final touches to the whole process. The new guidelines, which were approved by the full court under the chairmanship of the former Chief Justice Barin Gosh, also mentioned that habeas corpus matters shall be given preference over the fast track matters by the courts.
The rules mention that a notice should be issued in respect of writ of habeas corpus by the court at the first listing and shall be returned within 48 hours in a case where the person is in the custody under the order of state or government of India.
The government, under the rules may file a brief return enclosing the relevant documents to justify the detention and the matter shall be listed after issuance of the notice on the fourth working day, and the court shall consider whether a more detailed return to the writ is necessary and, if so required, shall give further time of a week and three days time for filing a rejoinder.
Regarding the habeas corpus matters especially writ against the detention under PSA, the rules mentions that it shall have preference over and above invariably the fast track cases and shall be disposed off within a period of 15 days. However, if the cases are not decided within 15 days (as mentioned in the rules) it will not invalidate the order of detention.
This is where the problem lies. It is a license to the state to defeat the very object of the petition. According to president Jammu Kahmir High Court Bar association, a habeas corpus takes six to eight months for disposal. Some times the detention comes to an end during the pendency of the petition.
In some cases when the petition is disposed off on time with a direction to release the prisoner, the state resorts to cheap methods to keep the prisoner behind the bars. The release, of course is effected but only on paper. The prisoner rarely comes out of the jail. A second detention is slapped and the process starts all over again.
The rules, therefore, cannot achieve the objective unless the state government and its agencies respect the right to liberty of a person. The Chief Minister, Omar Abdullah during his interaction with Amnesty International team that visited Kashmir last week justified Public Safety Act (PSA) saying it was needed to protect and govern the state smoothly. “We have to run the government. The stone pelting boys are involved in other activities. We have information against them. We do not want the minority (stone pelters) to hold the majority hostage”, he said.
Omar evaded answer when told about re-arrest of detainees outside the jails after their release on court directions. He, however, reaffirmed his commitment to human rights. “We are serious about human rights and a lot of work has been done to minimize abuse of rights”, he said.
Omar Abdullah seeks repeal of Armed Forces Special Powers Act (AFSPA) but justifies Public Safety Act (PSA). One fails to understand how a person who has two yardsticks to measure two draconian legislations can uphold human rights.
Speedy trial: This right has been excessively violated some times for want of security guards and at times in the name of security of the state. Usually the state says that the under trials could not be produced on hearing days for want of escort. This makes no sense. The state has a strong police force comprising around 80,000 men. If there are enough guards for people who unsuccessfully contest municipal elections to become VIPs, the prisoners’ incarceration cannot be prolonged by denying them guards. The state and its security agencies, it seems, have not yet understood the importance of right to liberty. And how can they? For the past six decades they have been vehemently abusing this right. Bad habits die hard!
Medicare: Reports of denying medicare to ailing prisoners pour in every day from different jails of the state. Shabir Shah, on whom five successive detentions have been slapped during the past two years, is seriously ailing. Last month obstruction of urine caused him and his family worry.
Obstruction of urine is treated as a medical emergency everywhere in the world but Shah’s inflated bladder which contained 248CC urine was ignored by the jail authorities
According to medical experts in Sher-e-Kashmir Institute of Medical Sciences (SKIMS), Shabir Shah is suffering from Hypertension, Diabetes Mellitus, Atypical chest pain, Cervical and Lumber Spondylitus, Left Renal calculus, Right Renal cyst and Benign Hypertrophy of Prostate. Shabir has been taking various drugs for these ailments but, according to his wife, the drugs have not been made available to him.
This is yet another blatant violation of the jail manual. On page 279 Para 33.71 the jail manual says: “Urgent cases requiring immediate surgical or other treatment which cannot be adequately given in a prison hospital should be transferred to an outside civil hospital and a report made to the Inspector general.”
The subsequent Para elaborates. “When a serious case is received and medical officer is of the opinion that removal of the prisoner to another prison or a specialized institution is absolutely necessary to save his life or for the benefit of his health shall submit a brief statement of the case to the superintendent and mention the prison to which he considers the transfer desirable. The superintendent shall submit the recommendation to the inspector general for his order.”
In yet another Para on page 280, the manual says: “Any medicine prescribed by the medical officer of an outside hospital which is absolutely necessary for the treatment of the sick prisoner and is not available in the said hospital shall be provided by the prison authorities without delay.”
In all the paras quoted above, the jail manual casts an obligation on the authorities to transfer a seriously ailing prisoner to hospital. Shabir Shah was not transferred to hospital. The plight of other detainees is equally disturbing. But who cares.