The following is based on a communication written by the UN Special Rapporteur on Human Rights Defenders and other UN experts to the Government of India on 3 April 2023. The communication remained confidential for 60 days before being made public, giving the Government time to reply. Regrettably, the Government did not reply within this time frame. If a reply is received it will be posted on the UN Special Procedures communications database.
At the time of publication, Mohammad Ahsan Untoo remains arbitrarily detained under the Public Safety Act (PSA). He is still being held in Kot Bhalwal Jail in Jammu.
This is a shorter version of the original communication.
BACKGROUND
Topic: detention and alleged ill-treatment of human rights defender Mohammad Ahsan Untoo.
Mohammad Ahsan Untoo is a Kashmiri human rights defender in Indian-Administered Kashmir and has been the Chairperson of the International Forum for Justice and Human Rights Jammu and Kashmir. His human rights activities have included the pursuit of justice for victims of killings in Jammu and Kashmir and women victims of sexual violence by Indian Armed Forces since 1990, the identification of mass graves, the identification of victims killed or blinded by the use of lethal pellet guns on unarmed protestors, and the provision of legal aid to prisoners and families of victims of state violence. He has spent approximately an accumulative 21 years of his life in prison, on seven separate occasions.
ALLEGATIONS
On 5 January 2022, Mr. Untoo provided a virtual testimony in support of a universal jurisdiction claim for torture to solicitors of Stoke White Ltd., based in London, United Kingdom.
On 13 January 2022, he was arrested, by the Indian authorities, without a warrant under sections 13 (unlawful activities) and 38 (membership of a terrorist organization) of the UAPA and Section 153-A (promoting enmity between different groups) and 506 (criminal intimidation) of the Indian Penal Code in relation to tweets he had posted which the authorities alleged were secessionist. The tweets in question were related to Mr. Untoo’s work as a human rights defender and described human rights violations in Jammu and Kashmir. Mr. Untoo’s family became aware of his arrest through an article published on 15 January 2022 in TheQuint news website[1].
Mr. Untoo was transferred to Central Jail, Srinagar until 2 June 2022 when he was additionally charged under section 8(1)(a)(i) under the Jammu and Kashmir Public Safety Act (PSA), which authorizes the government to preventively detain any person to prevent them from acting “in any manner prejudicial to the security of the State or the maintenance of the public order” for two years without authorities being required to bring charges or have a trial. He was subsequently transferred to Central Jail, Kot Bhalwal, Jammu. On 23 June 2022, Mr. Untoo was granted bail for the charges under the UAPA and the IPA after posting a bond of 100,000 INR (1221 USD) but Indian authorities rearrested him under the Jammu and Kashmir PSA despite the order of the court, and remains in Central Jail, Kot Bhalwal, Jammu presently. The practice of issuing additional charges to prevent a detainee from being released or “revolving door detentions” (immediate re-arrest upon bail under a preventive detention law) is reportedly a common practice deployed by Indian authorities against Kashmiri detainees. The Jammu and Kashmir police is yet to file any charge sheet against Mr. Untoo, and the victim has only been provided with a copy of the order of extension of his detention.
Mr. Untoo suffers from various ailments for which he has been denied adequate medical treatment. The barracks in Kot Bhalwal Jail where Mr. Untoo is detained are reportedly overcrowded. Each cell is 8 feet by 6 feet and holds 5 Kashmiri detainees. Kot Bhalwal Jail is approximately 350 km from Mr. Untoo’s home, which deprives Mr. Untoo the opportunity to be visited by his family.
The food served in prisons is allegedly substandard and food items for sale are priced at exorbitant rates in comparison to the fair market price. Any complaints about facilities, food or access to healthcare by individual prisoners are reportedly met with punitive action, typically in the form of being shifted to far-off prisons located out of Jammu and Kashmir.
It is worth noting that Mr. Untoo was reportedly previously arrested on 30 December 2004, without a warrant from Priya Guest House Darya gung, Delhi by a special cell of Delhi Police. He was charged under the Indian counter-terrorism laws of the time (TADA/POTA) for allegedly acting as a Pakistani agent. During his detention by the Delhi police, he was reportedly subjected to severe physical and sexual torture by interrogators, and police commissioners. After more than four years of detention in various locations, Mr. Untoo was released for reported lack of evidence against him.
CONCERNS
In the communication, we are expressing our most serious concern at the allegations of arbitrary detention and ill-treatment of Mohammad Ahsan Untoo and that his detention appears to be part of a strategy to disrupt, intimidate, detain and punish those engaging in journalism and human rights advocacy.
We are furthermore concerned by the use of the UAPA, a counter-terrorism law, against human rights defenders as a justification for arbitrary arrest and ill-treatment, and that its use may relate to his peaceful exercise of his right to freedom of expression and may be in retaliation for his legitimate human rights activities. As we previously raised, we are deeply concerned that the definition of ‘terrorist act’ in UAPA differs substantially from the definition offered by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. The definition of terrorism and terrorism offences must be ‘genuinely’ terrorist in nature in accordance with the elements identified by the Security Council in its resolution 1566 (2004).
We further express concern at persistent allegations of poor conditions of detention, patterns of issuing additional charges to prevent a detainee from being released, and at the practice of preventing a detainee from appearing in court due to no charge sheet being filed.
