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 5 June 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.
Since the communication was sent, the detention of Mr. Mehraj and Mr. Parvez has twice been extended following petitions by the National Investigation Agency (NIA), with the latest extension granted on 27 July 2023. Both human rights defenders remain detained in Rohini Prison in Delhi.
This is a shorter version of the original communication.
BACKGROUND
Topic: the arrest and detention of Kashmiri human rights defenders Mr. Irfan Mehraj and Mr. Khurram Parvez and their ongoing persecution.
Mr. Irfan Mehraj is a human rights defender and journalist based in Srinagar, Indian-administered Kashmir. He has extensively covered allegations of human rights violations in Kashmir in his work as a journalist and has contributed to a range of both national and international media outlets. He is the founder of Wande Magazine and is an editor at TwoCircles.net. He has also worked as a researcher with the Jammu Kashmir Coalition of Civil Society (JKCSS), an organization that carries out human rights monitoring in Indian-administered Jammu and Kashmir.
Mr. Khurram Parvez, a human rights defender also normally based in Srinagar, Indian-administered Kashmir, is the Programme Coordinator of the JKCCS and Chairperson of the Asian Federation against Involuntary Disappearances (AFAD), a regional federation of organizations that voices concerns on behalf of victims of enforced disappearances and Deputy General Secretary of the Fédération Internationale pour les Droits de l’Homme (FIDH). He is known for his work on the issue of enforced disappearances, as well as his work in combatting extrajudicial killings in India and the Asian region.
ALLEGATIONS
The case of Mr. Irfan Mehraj
On 20 March 2023, Mr. Mehraj received a phone call from the National Intelligence Agency (NIA) in which he was ordered to present himself at the NIA office in Srinagar. Upon arriving at the NIA office, he was arrested, accused of several offences under the Indian Penal Code and the Unlawful Activities Prevention Act (UAPA). His arrest was based on an investigation opened by the NIA in October 2020 into allegations that certain non-governmental organizations (NGOs), as well as other groups, had been collecting funds for the benefit of nationally-proscribed terrorist organizations as part of a criminal conspiracy also said to include publications inciting hatred and contempt of the Government. The investigation was launched following a raid on the offices of the Jammu Kashmir Coalition of Civil Society (JKCCS) in the same month of 2020, referred to in IND 20/2020.
On 21 March 2023, the NIA issued a press release describing a “first arrest in NGO Terror Funding Case”. In the press release, the agency announced the arrest of Mr. Mehraj, describing him as “a close associate of Khurram Parvez” and citing his work with the JKCSS, whom it accused of “funding terror activities in the [Kashmir] valley” and propagating a “secessionist agenda in the Valley under the garb of protection of human rights.” On the same date, a request by the NIA through the local courts to permit the transfer of Mr. Mehraj from Srinagar to New Delhi was granted.
On 22 March 2023, Mr. Mehraj was presented at the Patiala House Court in New Delhi and remanded in custody for a period of 10 days, accused of criminal conspiracy and sedition under sections 120A and 124A of the Penal Code, and of offences under sections 17, 18, 22A, 22C, 38, 39 and 40 of the UAPA, including raising funds for terror activities, conspiracy to commit terror offences.
On 1 April 2023, Mr. Mehraj appeared in court following the end of his remand period. Subsequently, he was returned to judicial custody in Rohini Central Prison.
On 28 April 2023, Mr. Mehraj appeared in court by video link from Rohini Central Prison. He remains in detention where he has reportedly been permitted access to his lawyer. His next court date is scheduled for 26 May 2023.
The case of Mr. Khurram Parvez
On the same date, a court in New Delhi remanded human rights defender Khurram Parvez, who was already in detention for an earlier case (see IND 19/2021), to the custody of the National Investigation Agency (NIA) (for ten days). This was in relation to a new case filed against him.
On 1 April 2023, Mr. Khurram appeared in court following the end of his remand period, along with the aforementioned human rights defender Mr. Mehraj. They were both returned to judicial custody in Rohini Central Prison.
On 26 April 2023, the office of the JKCCS in Kashmir’s Bugdam District was raided by NIA personnel accompanied by members of the Jammu and Kashmir Police, with those carrying out the raid seizing documents. The office in question had reportedly been closed for some time prior to the raid.
On 28 April 2023, Mr. Parvez, appeared in court, alongside Mr. Mehraj, by video link from Rohini Central Prison. Like Mr. Mehraj, at the time of finalizing this communication it is understood that Mr. Parvez also remains in detention where he has reportedly been permitted access to his lawyer. In parallel to the case of Mr. Mehraj, his next court date is scheduled for 26 May 2023.
CONCERNS
In the communication, we express our serious concern at the arrest, detention and accusations brought against Mr. Mehraj and Mr. Parvez, which would appear to gravely conflate their legitimate human rights work with terrorism. We underline the legitimacy of their work and of the activities of the JKCSS and express our fear that the arrest and detention of Mr. Mehraj, as well as the continued detention of Mr. Parvez since 2021 and his involvement in the second case at hand, are designed to delegitimize their human rights work and obstruct monitoring of the human rights situation in India-administered Jammu and Kashmir.
As we have repeatedly stressed in the past, counter-terrorism legislation should never be used to sanction human rights defenders. We express our abhorrence at the continued instrumentalization of national-security measures and discourse to undermine, obstruct and persecute those peacefully promoting, defending and seeking the advancement of human rights in the country, as well as to frustrate accountability for human rights violations. As we previously raised in OL IND 7/2020, we are deeply concerned about the definition of ‘terrorist act’ in the UAPA, which substantially departs from the model definition offered by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism and provides broad powers to the executive, without oversight or control from the judiciary. We further remind your Excellency Government that 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). Conflation of human rights work with terrorism is inconsistent with the obligations of State affirmed by the Security Council that counter-terrorism activities by States should not conflict with other international law obligations, particularly human rights, and with the agreed consensus of Member States contained in the Global Counter-Terrorism strategy opposing the misuse of counter-terrorism measures against civil society (A/RES/60/288).
We also note our deep concerns about allegation of “terror funding” and highlight that the Financial Action Task Force (FATF) has set forth international practices and guidelines aimed at preventing global money laundering and terrorist financing. The FATF recommendations, while non-binding, provide recognized international guidance for the countering of terrorism financing. Recommendation (1) states that “countries should apply a risk-based approach (RBA) to ensure that measures to prevent or mitigate money laundering and terrorist financing are commensurate with the risks identified”. Recommendation (8) provides guidance to States on the laws and regulations that should be adopted to oversee and protect NPOs that have been identified as being vulnerable to terrorist financing concerns. Such measures must be “focused and proportionate”; “a ‘one size fits all’ approach to address all NPOs is not appropriate.” FATF has reaffirmed that State compliance with Recommendation (8) and the other FATF Recommendations “should not contravene a country’s obligations under the Charter of the United Nations and international human rights law to promote universal respect for, and observance of, fundamental human rights and freedoms, such as freedom of expression, religion or belief and freedom of peaceful assembly and of association.” We are concerned that these arrests appear to contravene a “risk-based” approach to countering terrorism finance and appear to demonstrate a misuse of countering terrorism finance laws and practice to disproportionality target civil society.
