New information

IND 001 / 0220 / OBS 007.1

Arbitrary detention /
Deterioration of health /

Judicial harassment

India
February 12, 2020

The Observatory for the Protection of Human Rights Defenders, a partnership ofFIDH and the World Organisation Against Torture (OMCT), has received newinformation and requests your urgent intervention in the following situation inIndia.

New information:

The Observatory has been informed by reliablesources about the continuing judicial harassment and arbitrary detention, aswell as the deteriorating health condition while in detention of Mr. MiyanAbdul Qayoom, a human rights lawyer and President of Jammu & KashmirHigh Court Bar Association. Mr. Qayoom, 70, suffers from multiple healthconditions, including diabetes, double vessel heart disease, and kidneyproblems[1].

According to the information received, onFebruary 7, 2020, the Srinagar bench of the Jammu & Kashmir High Courtdismissed a habeas corpus petition that demanded that Mr. Miyan Qayoom'sdetention under the Public Safety Act (PSA) be quashed. In its ruling, theCourt upheld the detention order issued by the State, arguing that the court was not “a proper forum toscrutinise the merits of administrative decision to detain a person.”

The Observatory recalls that Mr. Miyan AbdulQayoom is detained since August 5, 2019. The habeas corpus petition wasfiled on August 21, 2019 and the court reserved its judgement after hearing thefinal arguments on February 3, 2020 (see background information).

On February 6, 2020, the Jammu & Kashmirauthorities extended the detention period of Mr. Miyan Abdul Qayoom by threemonths, up to May 6, 2020.

The Observatory expresses its deepest concern aboutthe ongoing arbitrary detention and the deteriorating health condition of Mr.Qayoom, and calls on the Indian authorities to immediately and unconditionallyrelease him, and to grant him an immediate access to the medical attention herequires.

Backgroundinformation:

Mr. Qayoon was detained during the night ofAugust 4 to 5, 2019, when Jammu & Kashmir police arrested him, along withmany other Kashmiri human rights defenders, activists, and political workers,under the Public Safety Act (PSA), as part of a mass crackdown to shut down anydissent arising out of the unilateral decision taken by the Government of Indiaon August 5, 2019 to abrogate Jammu & Kashmir’s special status by repealingArticle 370 of the Indian Constitution and splitting the State of Jammu &Kashmir into two Union Territories[2]. As per his PSA dossier,he is accused of being a “most staunch advocate of secessionist ideology”.

On August 8, 2019, Mr. Qayoom was transferredto Agra Central Jail, 1,048 kilometers away from his home, where he has been detainedin a solitary cell until he was transferred to Tihar Jail on February 1, 2020.

During the evening of January 29, 2020, Mr. Qayoom’s family received a phonecall from Agra Central Jail’s authorities, in Uttar Pradesh State, informingthem that Mr. Qayoom had been transferred to Sarojini Naidu Medical Collegeafter complaining of chest pain, breathlessness and his pulse rate hadsignificantly gone down to 44pm, and asking them to visit him.

On January 30, 2020, upon reaching AgraCentral Jail, Mr. Qayoom’s relatives discovered that Mr. Qayoom had been takenback to the jail’s dispensary, even though his health condition had notimproved. Mr. Qayoom has difficulty to breath, can barely walk, and needs toreceive an open-heart surgery as soon as possible. During the last months, Mr.Qayoom’s family approached Jammu & Kashmir High Court Srinagar benchseveral times regarding his deteriorating health condition and requested thathe be transferred to Srinagar Central Jail, where they live, but the Court didnot respond to the request.

On January 31, 2020, during his habeascorpus hearing at the Jammu & Kashmir High Court Srinagar bench, thejudge heard Mr. Qayoom’s lawyer’s arguments and scheduled the next hearing toFebruary 2, 2020. The habeas corpus request was filed on August 21,2019. The Observatory deplores that this delay disregarded Mr. Qayoom’sdeteriorating health and violated the Jammu & Kashmir High Court CaseManagement Flow Rules 2010, which stipulate that after the filing of a habeascorpus petition, the High Court should issue a notice within 48 hours.

On February 1, 2020, Mr. Qayoom wastransferred from Agra Central Jail to the All India Institute of MedicalScience (AIIMS) in New Delhi, for a medical check-up. He was then transferred toTihar Jail, New Delhi, which is 818 kilometres away from Srinagar, Jammu & Kashmir State.

On February 3, 2020, Jammu & Kashmir HighCourt Srinagar bench, after hearing the final arguments, reserved its judgementregarding Mr. Qayoom’s habeas corpus request.

Actionsrequested:

Please write to the authorities in India,urging them to:

i. Guarantee in allcircumstances the physical integrity and psychological well-being of Mr. MiyanAbdul Qayoom, and give him an immediate and unconditional access to the medicalattention he requires;

ii. Immediately andunconditionally release Mr. Miyan Abdul Qayoom, and all other human rightsdefenders arbitrarily detained in Jammu & Kashmir as well as in India, since their detention is arbitrary as it seems to be merelyaimed at sanctioning their human rights activities;

iii. Put an end to all acts ofharassment, including at the judicial level, against Mr. Miyan Abdul Qayoom aswell as all other human rights defenders in India and ensure that they are able to carryout their activities without hindrance or fear of reprisals;

iv. Conform to the provisionsof the Declaration on Human Rights Defenders, adopted on December 9, 1998 bythe United Nations General Assembly, in particular its Articles 1 and 12.2.;

v. Ensure in all circumstancesrespect for human rights and fundamental freedoms in accordance withinternational human rights instruments ratified by India.

Addresses:

· Mr. Narendra Damodardas Modi, Prime Minister ofIndia, Fax: + 91 11 2301 6857.E-mail: pmosb@pmo.nic.in / manmo@sansad.in

· Mr. Amit Shah, Union Minister of Home Affairs ofIndia, Fax: +91 11 2309 2979. Email: dirfcra-mha@gov.in

· Mr. Ajay Kumar Bhalla, Secretary, Ministry ofHome Affairs of India, Email: hshso@nic.in

· Mr. Sharad Arvind Bobde, Chief Justice of India,Supreme Court, of India, Fax: +91 11 233 83792, Email: supremecourt@nic.in

· Mr. H.L. Dattu, Chairperson of the National HumanRights Commission of India, Fax +91 11 2465 1329. Email: chairnhrc@nic.in

· Mr. Khaleel Ahmad, Focal Point on Human RightsDefenders, National Human Rights Commission of India, Email: hrd-nhrc@nic.in

· H.E. Mr. Rajiv Kumar Chander, Ambassador,Permanent Mission of India to the United Nations in Geneva, Switzerland. Fax:+41 22 906 86 96, Email: mission.india@ties.itu.int

· H.E. Ms. Gaitri Issar Kumar, Embassy of India to theEuropean Union, Belgium and Luxembourg in Brussels, Belgium, Fax: +32 2 6489638/ +32 2 6451869

Please also write to the diplomatic mission or embassyof India located in your country.

***

Paris-Geneva, February 12, 2020

Kindly inform us of any action undertakenquoting the code of this appeal in your reply.

The Observatory for theProtection of Human Rights Defenders (the Observatory) was created in 1997 byFIDH and the World Organisation Against Torture (OMCT). The objective of thisprogramme is to prevent or remedy situations of repression against human rightsdefenders. FIDH and OMCT are both members of ProtectDefenders.eu, the European Union Human Rights Defenders Mechanism implemented byinternational civil society.

To contact the Observatory, call theemergency line:

• E-mail: Appeals@fidh-omct.org

• Tel and fax FIDH: +33 (0) 1 43 55 25 18 / +33 1 43 55 18 80

• Tel and fax OMCT + 41(0) 22 809 49 39 / + 41 22 809 49 29

[1] Mr. Qayoom hasbeen surviving on a single kidney for the last 25 years. He is suffering frompartial renal failure. He is diabetic and hypertensive and has a prostate ailmentas well, for which he has undergone two surgeries (in 2012 and 2018). He alsohas a cataract in left eye, and is suffering from arthritis in his right footand right knee.

[2] On August 5,2019, the Indian government, led by the Bharatiya Janata Party (BJP),introduced a bill in the upper and lower houses of the Indian parliament toabrogate Article 370 of the Indian Constitution. Article 370 had guaranteed‘special status’ to Jammu and Kashmir State since 1949 and prevented any personwho did not have a state subject certificate from acquiring immovable propertyin Jammu and Kashmir. The abrogation of Article 370 by the Indian government isinconsistent with earlier rulings by the Supreme Court of India, which declaredthat Article 370 could not be abrogated without the approval of the Jammu andKashmir State’s Legislative Assembly. A majority of Indian parliamentariansvoted in favour of the BJP’s decision to repeal Article 370 and to pass asecond piece of legislation, the Jammu and Kashmir Reorganisation Act of 2019,which led to the split of the existing state of Jammu and Kashmir into twoUnion Territories, Ladakh and Jammu and Kashmir, under direct control of NewDelhi. This move is part of the Indian government’s plan to ensure the completeannexation of Jammu and Kashmir, in a belief that such developments would leadto an end of the decades-long conflict. For more information, see FIDH “Updateon human rights violations in Indian-administered Jammu and Kashmir sinceAugust 2019”, published on September 2019: https://www.fidh.org/IMG/pdf/20190926_india_j_k_bp_en.pdf