India: Mr. Miyan Abdul Qayoon was denied his habeas corpus request

12/02/2020
Urgent Appeal

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 of FIDH and the World Organisation Against Torture (OMCT), has received new information and requests your urgent intervention in the following situation in India.

New information:

The Observatory has been informed by reliable sources about the continuing judicial harassment and arbitrary detention, as well as the deteriorating health condition while in detention of Mr. Miyan Abdul Qayoom, a human rights lawyer and President of Jammu & Kashmir High Court Bar Association. Mr. Qayoom, 70, suffers from multiple health conditions, including diabetes, double vessel heart disease, and kidney problems [1].

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

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

On February 6, 2020, the Jammu & Kashmir authorities extended the detention period of Mr. Miyan Abdul Qayoom by three months, up to May 6, 2020.

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

Background information:

Mr. Qayoon was detained during the night of August 4 to 5, 2019, when Jammu & Kashmir police arrested him, along with many other Kashmiri human rights defenders, activists, and political workers, under the Public Safety Act (PSA), as part of a mass crackdown to shut down any dissent arising out of the unilateral decision taken by the Government of India on August 5, 2019 to abrogate Jammu & Kashmir’s special status by repealing Article 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 transferred to Agra Central Jail, 1,048 kilometers away from his home, where he has been detained in 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 phone call from Agra Central Jail’s authorities, in Uttar Pradesh State, informing them that Mr. Qayoom had been transferred to Sarojini Naidu Medical College after complaining of chest pain, breathlessness and his pulse rate had significantly gone down to 44pm, and asking them to visit him.

On January 30, 2020, upon reaching Agra Central Jail, Mr. Qayoom’s relatives discovered that Mr. Qayoom had been taken back to the jail’s dispensary, even though his health condition had not improved. Mr. Qayoom has difficulty to breath, can barely walk, and needs to receive an open-heart surgery as soon as possible. During the last months, Mr. Qayoom’s family approached Jammu & Kashmir High Court Srinagar bench several times regarding his deteriorating health condition and requested that he be transferred to Srinagar Central Jail, where they live, but the Court did not respond to the request.

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

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

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

Actions requested:  
 
Please write to the authorities in India, urging them to:
 
i. Guarantee in all circumstances the physical integrity and psychological well-being of Mr. Miyan Abdul Qayoom, and give him an immediate and unconditional access to the medical attention he requires;

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

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

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

v. Ensure in all circumstances respect for human rights and fundamental freedoms in accordance with international human rights instruments ratified by India.

Addresses:

• Mr. Narendra Damodardas Modi, Prime Minister of India, Fax: + 91 11 2301 6857. E-mail: pmosb@pmo.nic.in / manmo@sansad.in
• Mr. Amit Shah, Union Minister of Home Affairs of India, Fax: +91 11 2309 2979. Email: dirfcra-mha@gov.in
• Mr. Ajay Kumar Bhalla, Secretary, Ministry of Home 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 Human Rights Commission of India, Fax +91 11 2465 1329. Email: chairnhrc@nic.in
• Mr. Khaleel Ahmad, Focal Point on Human Rights Defenders, 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 the European Union, Belgium and Luxembourg in Brussels, Belgium, Fax: +32 2 6489638 / +32 2 6451869

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

***
Paris-Geneva, February 12, 2020

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

The Observatory for the Protection of Human Rights Defenders (the Observatory) was created in 1997 by FIDH and the World Organisation Against Torture (OMCT). The objective of this programme is to prevent or remedy situations of repression against human rights defenders. FIDH and OMCT are both members of ProtectDefenders.eu, the European Union Human Rights Defenders Mechanism implemented by international civil society.

To contact the Observatory, call the emergency 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 has been surviving on a single kidney for the last 25 years. He is suffering from partial renal failure. He is diabetic and hypertensive and has a prostate ailment as well, for which he has undergone two surgeries (in 2012 and 2018). He also has a cataract in left eye, and is suffering from arthritis in his right foot and 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 to abrogate Article 370 of the Indian Constitution. Article 370 had guaranteed ‘special status’ to Jammu and Kashmir State since 1949 and prevented any person who did not have a state subject certificate from acquiring immovable property in Jammu and Kashmir. The abrogation of Article 370 by the Indian government is inconsistent with earlier rulings by the Supreme Court of India, which declared that Article 370 could not be abrogated without the approval of the Jammu and Kashmir State’s Legislative Assembly. A majority of Indian parliamentarians voted in favour of the BJP’s decision to repeal Article 370 and to pass a second 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 two Union Territories, Ladakh and Jammu and Kashmir, under direct control of New Delhi. This move is part of the Indian government’s plan to ensure the complete annexation of Jammu and Kashmir, in a belief that such developments would lead to an end of the decades-long conflict. For more information, see FIDH “Update on human rights violations in Indian-administered Jammu and Kashmir since August 2019”, published on September 2019: https://www.fidh.org/IMG/pdf/20190926_india_j_k_bp_en.pdf

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