In a concerning development that demands urgent attention, Kashmiri political prisoners in Indian jails are experiencing alarming physical and mental health hardships amidst the unprecedented heat wave across North India. The families of three female prisoners – Asiyeh Andrabi, Nahida Nasreen, and Fehmeeda Sofi – have shared worrying details about their deteriorating health and the multiple hardships they are facing in the scorching Delhi summers. They are being denied the right to adequate healthcare and proper medication.  While the conditions across Indian prisons are known to be dire owing to overcrowding and lack of basic facilities, Kashmiri prisoners face heightened precarity amid ever-rising anti-Muslim, anti-Kashmiri sentiments, especially for their political aspirations. Legal Forum for Kashmir (LFK) urges the jail authorities to stop the ill-treatment of Kashmiri prisoners, especially the female political prisoners with multi-layered vulnerabilities, and provide them adequate services and make necessary arrangements in the prisons to counter the impacts of the heat wave.

Arbitrary Detentions as collective punishment

The Indian occupying authorities have long used arbitrary detentions as a tool of political repression against Kashmiri political leaders, civil society members, journalists, lawyers, and human rights defenders. These detentions,  as a form of collective punishment, are a means to intimidate dissent and spread terror among the civilian population of Indian-Occupied Jammu and Kashmir (IOJK).

Some of the most resonant cases include the detentions of three female political prisoners: Asiya Andrabi, Nahida Nasreen and Sofi Fehmeeda – socio-political activists who were arrested by the National Investigation Agency (NIA) in 2018 after being charged with sedition for demanding the Right to Self-Determination. These detentions are emblematic of the broader pattern of arbitrary detentions of Kashmiri dissenters and political activists by the Indian occupying authorities. In addition to the arbitrary detentions, the Indian occupying authorities and counter insurgency officials also extend this collective punishment by denying Kashmiri prisoners the right to adequate healthcare and proper medication. The tragic cases of recent custodial death of Muhammad Ashraf Sehrai and Altaf Ahmad Shah, who died in incarceration due to inadequate medical facilities and other health care safeguards, provide some insight into the state in which Kashmiri prisoners find themselves in and how basic facilities are made inaccessible to them as a deliberate tactic.

LFK has been actively monitoring the trial of female political prisoners in New Delhi and has been providing regular updates to the United Nations Working Group, Special Rapporteurs, and UN independent experts regarding their situation and medical emergencies within the New Delhi High Security Prison. Recently, a fresh health concern has emerged amidst the unprecedented heat wave in New Delhi, which has resulted in multiple deaths.

The families of the victims have reported that the female detainees lack proper cooling facilities within the small barracks and are subjected to a high-voltage bulb that emits excessive heat 24/7, as they are not allowed to turn it off. When the prisoners approached the jail authorities to request cooling facilities and an alternative to the high-voltage bulb, their requests were denied. Furthermore, the family members have complained that the authorities refused permission to allow families to send light clothing to the female prisoners, despite the detainees reporting that their skin has peeled off due to the thick clothing available within the prison barracks. In solitary confinement and mostly held in isolation, they are also rendered incommunicado from family and their legal team, further increasing their vulnerabilities amid deteriorating health conditions. This multiplies the apprehensions and worries of the families regarding their well-being.

Impunity for the past crimes of arbitrary detentions has emboldened the Indian occupying authorities to continue these heinous practices. The courts are hostile against the family members of detainees and the judges often act not as judges but as defenders of the Military occupation.

The UN Special Rapporteur on Human Rights Defenders, Mary Lawlor, while criticizing arbitrary detentions under anti-terror laws such as UNLAWFUL ACTIVITIES (PREVENTION) ACT UAPA, highlights that it utilizes “imprecise criteria, contains a vague and overly broad definition of ‘terrorist act’, allows people to be held in lengthy pre-trial detention and makes securing bail very difficult”. Any tweet, any statement, made by the detainees, in which they demanded Kashmir’s right to self-determination, or condemned the human rights violations, was categorized by the state as “incitement”, or “terrorism”. So, the families of detainees not only feel that the trial is not fairly conducted, but they also fear that the law is being used and interpreted in a manner that criminalizes the political views of detainees.

International legal framework

1. International law obligates states to protect the right to physical and mental integrity of the people held in prisons. In the context of the current heatwave which poses a severe health risk, the state must ensure safe and healthy conditions of detention and facilities to mitigate the impacts of the scorching heat. As laid out by the United Nations Standard Minimum Rules for the Treatment of Prisoners, also called the Nelson Mandela Rules, a state that deprives a person of their liberty also takes on the duty of care to provide medical treatment, and protect and promote their mental health and well-being.
2. Holding people in incommunicado detention, i.e., in complete isolation from the outside world, with no information to their families or no access to legal or medical assistance is a gross violation of states’ international human rights obligations, including under the International Covenant on Civil and Political Rights. The U.N. Human Rights Committee, charged with monitoring the implementation of the International Covenant on Civil and Political Rights, issued an authoritative statement on the interpretation of the ICCPR’s Article 7 on the prohibition of torture. In General Comment No. 20, adopted in 1992, the Committee recommends that legal and policy safeguards be taken by states against incommunicado detention.
3. Some international legal provisions in both human rights law and humanitarian law explicitly protect and promote women’s rights. Both systems are based on the principle of non-discrimination, so all their provisions should be as applicable and accessible to women as they are to men. However, in practice, their application has focused on the public sphere, dominated by men, and neglected the private sphere where women live – and where the reasons for their detention often arise.
4. In 1995, the Fourth United Nations Conference on Women stated that women may be vulnerable to violence from public officials (including police, prison officials, and security forces) in both conflict and non-conflict situations, and called for gender-sensitive education and training for those officials. It also called on governments not just to refrain from violating women’s rights, but to work actively to promote and protect them
5. Every detainee has the right to be presumed innocent until proven guilty and to be represented by a lawyer of their choice, at public expense if necessary, and to have adequate time, facilities, and privacy to communicate with their lawyer.
6. Every prisoner has the right to make complaints to the detaining authorities and to external inspectors, which should be responded to without undue delay unless the complaint is evidently frivolous or groundless.

Current case details of arbitrary detention and ill treatment

The three women detainees have spent number of years intermittently in different jails of India for their commitment to pursue the goal of UN guaranteed Right of self-determination for people of Indian occupied Jammu and Kashmir:

1. Asiya Andrabi Wife of Incarcerated Ashiq Hussain Faktoo from Soura Srinagar has spent 12 years of her life in jail. Andrabi was first arrested in 1993 along with her husband and an infant son. She was released after 14 months. However, in 1998, she was rearrested for starting rehabilitation centres across Kashmir for widows and orphans of the political dissidents killed and abducted by Indian occupying state. Since 1993, Andrabi has been booked under the PSA at least 20 times. On 10 July 2019 the NIA attached Andrabi’s in-laws’ house on the outskirts of Srinagar city under the UAPA.
2. Nahida Nasreen, 52 w/o Manzoor Ahmad Malik R/o Drangbal Pampore was arrested on April 20, 2018. Nasreen has chronic acute back pain caused by L3-L4 and L4-L5 lumbar disc prolapse. The pain she is in is excruciating, and it has taken a toll on her overall health as a consequence of the prison’s inadequate healthcare services. She is being refused a proper bed and medical mattress and was forced to sleep on the bare floor while being held in solitary confinement in a cell. She also has osteoarthritic degenerative knee disease, which has limited her mobility to sit or stand for lengthy periods of time. The detainee has also raised concerns about recurrent UTIs due to a lack of sanitation and hygiene in the prison toilets. Nasreen could not be able to comfort and grieve the loss of her mother-in-law with her family, as she was not released nor was she informed about her death.
3. Sofi Fehmeeda, 33 D/o Late Mohammad Siddique Sofi from Lal Bazar Srinagar has been slapped with PSA 9 times, the first being when she was just 17 years old. Since then, the 33 years old has been put behind bars repeatedly from time to time leading to her leaving her formal studies midway. She is also suffering from different ailments that have crippled her to bed. Fehmeeda has lumbago which has resulted from her prolonged incarceration and improper back support inside the jail. She was denied a radiological investigation earlier even when she was completely bed bound. Despite having an optimal weight, it is suspected that she has joint problems which may be serious enough to lead this young lady to permanent disability.

The detainees have been denied proper healthcare and medication is provided with great difficulties. Medical checkups are rare, and the facilities necessary to treat their ailments are also denied. Even the food prescribed by the jail medical team is not provided which has led to health complications and severe weight loss.

Recommendations on urgent actions to address the ill treatment of Kashmiri female political prisoners

United Nations Standard Minimum Rules for the Treatment of Prisoners:

• Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness. United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) Rule 5 The accommodation of women prisoners shall have facilities and materials required to meet women’s specific hygiene needs, including sanitary towels provided free of charge and a regular supply of water to be made available for the personal care of children and women, in particular women involved in cooking and those who are pregnant, breastfeeding or menstruating.
• The practice of Arbitrary detention in Indian occupied Jammu and Kashmir continues from three decades now. Taking into consideration information about gross violation of the rights of political prisoners available to the international community and the history of torture and killings of political opponents by the regime, tendency of incommunicado detention raises very serious concerns for the lives of the detainees and requires immediate action by the international community to influence the occupying authorities in order to stop these Atrocity crimes and bring the perpetrators to justice. Ending the ongoing Atrocity crimes including the Arbitrary detentions, their effective investigation, ending impunity of perpetrators and holding them accountable, and ensuring justice to the victims and their families is an urgent task for the international community.
• The Indian occupying authorities should immediately stop Arbitrary detention, allow access of lawyers, medical workers, family members and international observers to prisoners. UN human rights bodies and special procedures, including the UN Working Group on Arbitrary detentions, OHCHR examination of the human rights situation in IOJK, should vigorously address the arbitrary detention of above named female political prisoners and other Kashmiri political prisoners, Human right defenders and Journalists in IOJK and engage in active dialogue with the Government of India.
• The International Committee of the Red Cross (ICRC) should request urgent visits to Tihar Jail New Delhi where female political prisoners are facing ill treatment from jail authorities.