In Jammu, Prisoners Detained for Border Crossing Languish in Jails Despite Completing Their Sentences

Pakistani army officers (L) greet Indian officers prior to the opening of the fourth crossing point for aid supplies on the Line of Control (LOC) at the Mendhar Nala sector in Tatta Pani ASIF HASSAN/AFP/Getty Images
29 April, 2016

A very frail figure, draped in a beige shawl in the sweltering heat and sporting an olive green Pakistani salwar, accompanied by a police official, tottered towards a chair in the Amphala prison compound. Mohammad Nazir Rahi, is a supposedly 80-year-old alleged Pakistani national who was an under-trial when I met him at the Amphala jail, in Jammu in August 2015. In the time I spent with him, he spoke incoherently, repeatedly murmuring “Mujhe do rupaye mein bech diya hein”—I have been sold off.

Access to Rahi was not easy. Security in the prisons had tightened following an attack in Udhampur in the Jammu region in which two LeT armed terrorists attacked a Border Security Force (BSF) convoy. My visit was just the day after, and the police authorities in Jammu asked me to hand them my questionnaire. I was told I had to confine myself to the questionnaire or my interview with the prisoners would be terminated. Following this, I had to hand over my notes too for screening. They were only returned to me in November 2015.

A senior BSF official who asked not to be named, told me that Rahi was apprehended by the BSF on 8 October 2014 at Suchetgarh in Jammu district. At that time, Rahi provided sketchy details to the officials. He told them that on 3 October 2014, he had left Lahore for Sialkot by bus for his medical treatment at a place called Jalal-Hakim. The next day, his daughter and her husband visited him and all three of them stayed there for around four days. Subsequently, his daughter and her husband returned to Lahore while Rahi claimed to have lost his way and reached the India-Pakistan border, inadvertently entering Indian territory.

The BSF contacted the Pakistan Rangers on the day of Rahi’s detention with the aim of handing him over to the authorities in Pakistan. They provided the rangers with a photograph of Rahi and the contact information they had been given by him. However, his antecedents could not be verified. The BSF handed him to the state police on 13 October 2014 at RS Pura in Jammu district, and, after being charged for border crossing, Rahi was subsequently incarcerated.

In 2012, during a bi-annual meeting between the BSF and Pakistan Rangers, both sides discussed the issue of inadvertent crossing of nationals across the borders. I was given access to a file containing the minutes of this meeting. Regarding the “violation of International Border by Pakistan nationals and delay in handing over of border crossers, both sides agreed to ensure timely communication of information about inadvertent crossers.” Both sides further agreed that “efforts should also be made to deter inadvertent crossers before the situation arises for apprehension by the other side.” Despite this, as is evident in the case of Rahi, the provisions of the meeting on inadvertent crossing have not translated into reality.

Rahi is among the 14 alleged-Pakistani prisoners I interviewed in the Amphala and Kotbalwal jails in Jammu in August 2015. The jail authorities told me that all prisoners in both the jails had received consular access. The prisoners who were interviewed said that they had access to adequate medical facilities. However, while many had received free legal aid, some did not, despite being poor. As seen in the case of Rahi, one of the critical issues concerning alleged Pakistanis is the difficulty in verifying their addresses in Pakistan. Since some of the prisoners who were interviewed at Amphala jail were either aged or mentally unwell, they were unable to effectively communicate their addresses to the concerned authorities.

Some alleged Pakistanis who have completed their sentence and are awaiting deportation continue to languish at the Amphala and Kotbalwal jails since their antecedents have not been verified. Unlike Alwar (Rajasthan) and Delhi, where there is a separate transit camp governed by the Department of Social Welfare for foreigners who have completed their sentence, Jammu does not have a separate transit camp. As a result, mentally unwell Pakistanis who have completed their sentence are also lodged in the Jammu prisons. At Amphala, out of 9 prisoners who were interviewed, four had been diagnosed as mentally unwell.

India’s Mental Health Act of 1987 does not allow the lodging of mentally unwell persons in prisons. Besides, Rule 82 of the Standard Minimum Rules for the Treatment of Prisoners (adopted by the United Nations in 1955) states, “Persons who are found to be insane shall not be detained in prisons and arrangements shall be made to remove them to mental institutions as soon as possible” and “Prisoners who suffer from other mental diseases or abnormalities shall be observed and treated in specialised institutions under medical management.”

Akhtar Hussein, a mentally unwell detainee at Amphala jail who was arrested in 2011 at Akhnoor in Jammu district for border crossing, was still in jail when I met him in August 2015, despite having completed his sentence. Hussein’s address could not be verified when he received consular access by Pakistan in 2014.

During the 2012 meeting between the BSF and Pakistan Rangers, the latter had suggested that, “insane inadvertent crosser be handed over back for treatment in Pakistan/India by expediting their legal process.” In 26 October 2015, External Affairs Minister Sushma Swaraj said that India would take up the issue of repatriation of mentally unwell prisoners lodged in prisons on both sides of the border with Pakistan. However, there has been little progress on the matter so far.

Other than aged and mentally unwell detainees, another concern is that of Pakistanis in both prisons at Jammu who have completed their sentence and are still detained under the Jammu and Kashmir Public Safety Act (PSA) pending deportation. Fayaz Ahmad, a mentally unwell driver who hails from Sialkot in Pakistan, was detained in Jammu’s Arnia Sector for border crossing, in 2013. He received consular access the same year, but Pakistani authorities could not verify his address. When I met him in August 2015, he was an overstay at Amphala jail detained under the PSA.

First introduced in 1978, the PSA covers Jammu and Kashmir under its ambit. Its jurisdiction remains under the state government. Under this act, security forces can arrest any individual who, according to them is “acting in any manner prejudicial to the maintenance of public order.”

The PSA also permits detention of foreign nationals and residents of “the area in the State under the occupation of Pakistan.” According to Section 18(2), the authorities can detain foreign nationals indefinitely “in case his expulsion from the State has not been made possible.” Indefinite detention is in violation of the Article 9 of the International Covenant on Civil and Political Rights (which was adopted by the UN General Assembly in 1966, and which came into force in 1976) that provides; “No one shall be subjected to arbitrary arrest or detention.” Indefinite detention also raises serious concerns about the physical and mental health of those detained.

A solution to detainees languishing in prisons due to inadvertently crossing the border lies in making their situation more visible. If the detainees themselves cannot provide adequate information regarding their antecedents, the authorities need to circulate information about them that may aid in identifying them. Such a system would also be an immense aid to those prisoners whose mental condition prevents them from conveying their information accurately as well. They would also need to be lodged at a separate centre where they have access to regular mental health professionals and have constant supervision.