The Special Law That India Reserves For J&K

13 Feb 2020 8 min read  Share

The detention of three former Jammu and Kashmir chief ministers under a law that suspends the rule of law drags it back to India’s attention. But the Public Safety Act keeps hundreds in prison, beyond the pale of legal remedies available to Indians

Ghulam Mohammad Bhat's son Auqib was taken by police seven months ago on August 5, 2019 / SHAFAQ SHAH

Srinagar: Ghulam Mohammad Bhat looked dead. His eyes were closed, and he seemed unresponsive. Suddenly, a man sprinkled water on Bhat’s face, and he opened his eyes reluctantly.

A frail, fragile tailor in his late 60s, Bhat often becomes unconscious when he thinks or talks about his son Auqib, 28, an itinerant crockery salesman.

“This is routine now,” said Mohammad Ramzan, whose shop is close to Bhat’s in the Nowhatta area of the old city. “He becomes unconscious almost every day. We come here to see him, at least three times a day.”

When he came to and became lucid, Bhat said he had been “betrayed” by the police.

On August 5, when the state of Jammu and Kashmir was reduced to a union territory and its special link with the Indian union, article 370 scrubbed from the constitution by Parliament, police officers visited Bhat’s home and told him they were detaining his son as a “precautionary measure” in advance of Independence day 10 days later.

In Kashmir, young men who throw stones or are otherwise not in the good books of the police are commonly picked up on Republic or Independence days or on the death anniversaries of popular, slain militants, regarded locally as martyrs. Such detentions have been common after the summer unrest of 2016 that followed the killing of Burhan Muzzaffar Wani, then with the Hizbul Mujahideen.

On the day Auqib was taken away, the government snapped communication networks statewide and imposed a curfew. It became harder than ever to find out what happened to Auqib because the police never returned, and that was the last time he was free. More than seven months have since passed.

Nearly a week after his detention, Bhat’s elder brothers went looking for their brother in Srinagar jail and found he had been moved--as many detenus had been--more than 1,000 km south to Agra Central Jail in Uttar Pradesh.

Bhat said he or his sons had gone to Agra three times, spending up to Rs 20,000 each time, to meet Auqib in Agra. His two older sons are salesman, and going to Agra strains the family’s finances. Last November, snowfall closed the national highway, and he was stranded for more than a week. “I had to pay over Rs 1,000 per day for a room,” said Bhat.

Law That Allows Detentions Without Legal Procedure

In the normal course--normal for India--Auqib should have been, within 24 hours, produced before a magistrate, who would study the evidence submitted by the police for the detention and decide whether to grant bail. Auqib also should have given access to a lawyer.

None of this happened because Auqib was detained under Jammu and Kashmir’s 42-year-old Public Safety Act (PSA)--originally introduced to sequester timber smugglers--which allows the police to detain suspects without bail or explanation, largely on presumption, or even anticipation, of guilt.

The PSA allows a half-year detention “in the case of persons acting in any manner prejudicial to the security of the State”, and for up to three months where “any person is acting in any manner prejudicial to the maintenance of public order”.

Divisional Commissioners or District Magistrates can issue detention orders under the PSA and do need to provide access to a lawyer or disclose information about the detention “which it (the authority) considers to be against the public interest to disclose”.

“Detainees cannot challenge the decision to detain them in any meaningful way,” Amnesty International, an NGO, noted in 2011. “There is no provision for judicial review of detention in the PSA; and detainees are not permitted legal representation before the Advisory Board, the executive detaining authority that confirms detention orders.”

These broad, vague parameters returned to public debate recently because of revelations of seemingly absurb detention grounds used to imprison a string of high-profile detentions under the PSA, including three former chief ministers Mehbooba Mufti, Omar Abdullah and his father Farooq Abdullah--whose father Sheikh Abdullah originally cleared the PSA--Nayeem Akhtar, spokesperson of the previous government run by the BJP and its partner the People’s Democratic Party and National Conference leader and former member of Jammu and Kashmir legislative assembly Ali Mohammad Sagar.

They were some of 5,161 people detained since August 5, 2019, of which 609 continued to be in detention and the rest released, the government told Parliament on November 20, 2019. The government has not disclosed how many of these were detained under the PSA, but 662 habeas corpus--literally, produce the body, meaning the person detained--petitions challenging PSA detentions were registered in 2019, of which 62% were filed after August 5, 2019, said a December 2019 report released by the Jammu and Kashmir Coalition of Civil Societies (JKCCS) and Association of Parents of Disappeared Persons (APDP).

Revolving-Door Detentions Allow Jail Without Trial

This is not the first time Auqib was detained under the PSA after being involved in Kashmir’s unrest.

During street battles with police during the summer of 2008, triggered by the transfer of land to a Hindu shrine, Auqib was detained under the PSA, and in the uprising of 2016, he was partially blinded by a police pellet in his left eye.

“In 2008 he was detained for seven months, but the plus point was he kept in the central jail at Srinagar,” said Bhat, his father, “In 2016, Auqib was detained again, not under the PSA, and was charged with rioting, disturbing law and order; and nine FIRs (first information reports) were filed against him.

But this time, Bhat insisted, neither did Auqib pelt stones nor was he involved in “any anti national activity”.

The PSA can be used on a person already in police custody; immediately after being granted bail by a court; or even after being acquitted by a court.

The law allows a “revolving-door” detention, and that allows the police to permanently keep suspects in jail without a trial, in some cases for years.

The attention on the PSA because of high-profile detentions allow a glimmer of hope for unknown detenus, but it remains no more than a hope.

Khuram Parvez–a human-rights worker and project coordinator at the JKCCS– narrated how that hope emerged.

“When I was detained in 2016, the boys who were inside jail were unhappy that I was behind bars,” said Parvez. “But at the same time, they were happy because they thought, when a human-rights defender is detained, people start talking about this draconian law, they start criticising it, otherwise no one utters a word.”

“When high-profile people, like the Abdullahs and Muftis are detained under PSA, the illegalities of this law becomes visible,” said Parvez. “Over the years, thousands have been detained--young, old, disabled-- but there has never been such outrage.”

The PSAs Fig Leafs

After Prime Minister Narendra Modi’s government approved abrogation of Article 370 and bifurcated of the state into two union territories, more than 100 state laws were repealed by the central government under the Jammu and Kashmir Re-organisation Act, 2019.

The PSA was retained.

“This is the easiest way of detaining people, so why would they repeal it,” said Mushtaq Ahmad Dar, a Jammu and Kashmir High Court lawyer who has challenged many PSA detentions.

“In 90% of (PSA) cases, there are no genuine grounds for detention, but still they do it,” said Dar. “In law a person is innocent till he is proven guilty, but here they label a person guilty before even his guilt has been established.”

That guilty verdict without proof has been particularly revealed in the grounds for detention of recent orders.

“The capacity of the subject to influence people for any cause can be gauged from the fact that he was able to convince his electorate to come out and vote in huge numbers even during the peak of militancy and poll boycotts,” reads Omar Abdullah’s detention order.

In former government spokesperson Akhtar’s case, the accusation refers to his criticism of home minister Amit Shah. “He (Akhtar) had said that saffron party (sic) chief has changed the very idea of India,” reads the dossier. “He further said that the BJP is setting up a dangerous game for electoral gains in the country and is playing a communal hatred card (sic) as last resort to win elections.”

The dossier, as Outlook reports, says Akhtar, when he was state education minister, urged people to read Kashmiri separatist leader Syed Ali Shah Geelani's book: “His leanings toward radical elements can be gathered from his statement dated 27/09/2016 in which he as an education minister advised people to read Geelani’s book Wular Kinaray.”

Such justifications for PSA detentions are unlikely to hold in any court, but they have come to larger attention after being revealed. For hundreds of others detained, there are no discussions and no access to legal defence available to other Indians.

Asad Ullaha Parray: 14 PSAs And Counting

On February 6, 2020, three days before Kashmir was to commemorate the hanging of Afzal Guru-- controversially sentenced to death for a terrorist attack on Parliament in 2001--the police picked up Asad Ullaha Parray, 45, from his home in northern Kashmir’s Bandipora district.

The police assured his family that he would be released “soon”, but unlike Auqib’s father in Srinagar, Parray’s daughters did not believe that assurance.

Over 13 years, Asad, a surrendered militant, has been detained 14 times under the PSA, the first in 2007. When he was released, he was detained again the next year, and so on.

This is how the law is supposed to work: Four weeks after a PSA detention, a non-judicial advisory board must be formed and its members--who could be retired high court judges, retired bureaucrats or other “eminent personalities”--must decide whether the detention order should be revoked or confirmed.

If the advisory board decides a detainee must be released, the government must order release.

But the government prolongs detention simply by issuing another PSA detention order--there is no limit to such orders--on identical or similar grounds. Masarat Alam Bhat, a separatist, has had more than 30 detention orders successively issued against him and has been incarcerated without trial for 23 years.

Asad was associated with the Muslim League–headed by Bhat--and was also active with the Hurriyat, an umbrella body of separatists, which his 25-year-old and eldest daughter Maria Parray acknowledged.

In the normal course, such associations are not evidence of guilt and must be proved by prosecutors in court. That rule of law was abandoned in Kashmir many years ago.

In 2012, Asad’s wife died. In 2013, he was again picked up and kept in preventive detention, leaving his five daughters–one of whom has skin cancer–and a minor son alone.

“It was the toughest time,” said Maria. “Mother had died, and father was in jail. We were struggling to find peace. I was just 14 then, too young to take care of my siblings.”

In 2014, Asad was released. In 2015 he was again detained. Between August 2015 and July 2019--when he was released again--Parray was detained under 10 back-to-back PSA orders.

“After many hearings, the court would finally quash the PSA order, but the government would again detain him under the PSA. This continued till 2019,” said Maria.

After his last release, Asad had started looking after the family, was planning to take care of his orchard and earn money so he could get a daughter married.

“We are not anticipating his release (this time), because this (the PSA) is an andha kanoon (blind law),” said Maria. “I think we are the most unfortunate children in the world. Since childhood, we have only seen suffering and pain. When we compare our lives with other children, we ask God for death.”

(Shafaq Shah is a freelance journalist based in Srinagar)