Arbitrary Detention

Arbitrary arrest and arbitrary detention are the arrest or detention of an individual in a case in which there is no likelihood or evidence that they committed a crime against legal statute, or in which there has been no proper due process of law. Virtually all individuals who are arbitrarily arrested are given absolutely no explanation as to why they are being arrested, and they are not shown any arrest warrant.Depending on the social context, many or the vast majority of arbitrarily arrested individuals may be held incommunicado and their whereabouts can be concealed from their family, associates, the public population and open trial courts. Many individuals who are arbitrarily arrested and detained suffer physical or psychological torture during interrogation, as well as extrajudicial punishment and other abuses in the hands of those detaining them.

Arbitrarily depriving an individual of their liberty is strictly prohibited by the United Nations' division for human rights. Article 9 of the 1948 Universal Declaration of Human Rights decrees that "no one shall be subjected to arbitrary arrest, detention or exile";that is, no individual, regardless of circumstances, is to be deprived of their liberty or exiled from their country without having first committed an actual criminal offense against a legal statute, and the government cannot deprive an individual of their liberty without proper due process of law. As well, the International Covenant on Civil and Political Rights specifies the protection from arbitrary arrest and detention by the Article.
The Working Group on Arbitrary Detention was established by the United Nations by resolution 1991/42 of the former Commission on Human Rights. Its mandate was clarified and extended by Commission’s resolution 1997/50. The mandate was extended for a further three-year period by resolution 24/7 of 26 September 2013.

  • To investigate cases of deprivation of liberty imposed arbitrarily or otherwise inconsistently with the relevant international standards set forth in the Universal Declaration of Human Rights or in the relevant international legal instruments accepted by the States concerned;
  • To seek and receive information from Governments and intergovernmental and non-governmental organizations, and receive information from the individuals concerned, their families or their representatives;
  • To act on information submitted to its attention regarding alleged cases of arbitrary detention by sending urgent appeals and communications to concerned Governments to clarify and to bring to their attention these cases;
  • To conduct field missions upon the invitation of Government, in order to understand better the situations prevailing in countries, as well as the underlying reasons for instances of arbitrary deprivation of liberty;
  • To formulate deliberations on issues of a general nature in order to assist States to prevent and guard against the practice of arbitrary deprivation of liberty and to facilitate consideration of future cases;
  • To present an annual report to the Human Rights Council presenting its activities, findings, conclusions and recommendations.
  • Furthermore, the Human Rights Council encourages the Working Group in fulfilling its mandate:
  • To work in cooperation and dialogue with all those concerned by the cases submitted to it, and in particular with States that provide information which should be given due consideration;
  • To work in coordination with other mechanisms of the Human Rights Council, with other competent United Nations bodies and with treaty bodies, bearing in mind the role of the Office of the United Nations High Commissioner for Human Rights in such coordination, and to take all necessary measures to avoid duplication with those mechanisms, in particular regarding the treatment of the communications it receives and field missions;
  • To carry out its task with discretion, objectivity and independence.

People detained under the PSA also run a high risk of being tortured, as many are denied access to family or lawyers for long periods of time. Torture is widely used in police stations and interrogation centres in Jammu and Kashmir to extract confessions or information, to humiliate or punish detainees, leading to dozens of reported deaths in custody. In February 1998, political activist Ghulam Ahmad Dar was given electric shocks, had wooden rollers rolled over his thighs and had his hands beaten with a pistol butt. Hundreds of people are thought to be held in preventive detention or on a range of criminal charges despite court orders for their release. Often, when the state anticipates that detainees will be released on bail, it uses the PSA to ensure their continued detention. The vaguely formulated act allows for detention for up to two years without charge or trial on the purported presumption that they may in the future commit acts harmful to the state. Amnesty International is aware of some detainees who have been held without charge or trial since the early 1990s.

Lawyers in Jammu and Kashmir have consistently challenged specific PSA cases in the courts, but the government has blatantly disregarded court orders quashing detention orders or granting bail. Such disregard completely undermines the role of the courts to protect human rights.

Amnesty International has also done a full-fledged report on Arbitrary Detention in Jammu & Kashmir which gives a detailed account of how the detentions have taken place under different context and at several levels. In some cases prolonged detention and multiple detention of a person have taken place like Nayeem Ahmad who was a child aged 17 at the time of his detainment was held in administrative detention under the PSA for over three months from June to September 2009. He had previously been arrested in May 2008 in a criminal case of rioting and other related offences for being part of an alleged unlawful assembly that was “pelting stones on vehicles and attacked the police party which was on duty.” Dar was released after 10 days, as the authorities did not pursue criminal prosecution. Dar’s family told Amnesty International that while he, along with many other local boys, was indeed involved in some of the protests in 2008 over the transfer of land to a Hindu shrine, he had stopped taking part after his initial arrest. They said that this did not stop the police from regularly visiting the house after each incident of stone pelting in the area, harassing the family and threatening to arrest Dar. Even though the family members told them that their son had learnt his lesson and stopped such activities, the police said to his parents that he was a “born criminal.”