Protestors in Kashmir are repeatedly detained under the Public Safety Act, often for long periods of time, even when security forces know the cases won’t stand in court.
A few weeks ago, there appeared on social media the image of a man wearing a garland, ceremoniously walking through a street in Kashmir. He was not a groom, but a legal activist from Budgam – Younis Ahmed – recently released from detention under the Public Safety Act (PSA), being feted by fellow villagers. A comment under the image says the state may detain him under the pretext of being a threat to the maintenance of public order, but the public sees him a hero.
This succinct comment illustrates the perfect political understanding that Kashmiris have of PSA detainees – dissenters who are targeted by the state with a law that is designed to be deployed as a powerful weapon, especially during times of uprisings. According to the 2010 Amnesty report ‘A Lawless Law: Detentions under the Public Safety Act‘, at least 10,000-20,000 people have been detained under this preventive detention law since it was enacted in the 1970s.
In 2016 alone, some 600 detention orders have been issued. According to a lawyer, this number includes those who have gone underground and evaded arrest.
In a recent development, the Jammu and Kashmir high court quashed the 32nd PSA order against the pro-azadi leader Masarat Alam on December 27. But his release from Kathua jail remains a question mark, even though he has already spent some 17 years of his life in prison.
Who are these people the state sees as “dangerous” and seeks to detain, some for years on end? The list of detainees has included political leaders like Alam, Shabbir Shah of the Democratic Freedom Party, lawyers like Hassan Babbar Nehru of Doda arrested this year, president of the Bar Association Mian Abdul Qayoom detained in 2010 for allegedly instigating protests, hundreds and hundreds of young people (including even a 12-year-old) who may have participated in street protests, a number of Jamaat and Hurriyat district level workers, the popular Muslim cleric Maulana Sarjat Barkati who organises rallies and is called “freedom chacha” and noted human rights activist Khurram Parvez of the Jammu & Kashmir Coalition of Civil Society (JKCCS) and chairperson of the Asian Federation Against Involuntary Disappearances. Parvez, whose arrest was condemned internationally by various rights bodies, was released a few weeks ago after his detention order was quashed by the high court. He has said that he was picked up because his organisation and work has demanded a culture of accountability from the state.
Legal researcher-activist Shrimoyee Nandini Ghosh, who works in Srinagar and is part of the JKCCS legal team, makes the powerful observation that whilst the brutal use of force in Kashmir grabs attention during the periods of turmoil one must also take heed of the “everyday, minutiae of apparently legal, bureaucratic operations that normalize a permanent state of emergency in Jammu and Kashmir. These bureaucratic manipulations make and unmake dangerousness.”
It is this that makes Kashmir a very dangerous place for those who dissent, those who contest or are perceived to contest the legal sovereignty of India over their lives, surmises Ghosh. The dissent could be in the form of highlighting the violent means that India uses to maintain its sovereignty over Kashmiri bodies, land and ideas. It could be the act of throwing stones at the armed men who occupy the streets and their lands to enforce Indian rule. Or then it could be the form of publically mourning the death of a militant or someone killed by the armed forces, defying the state’s categorisation of them as “terrorists” or collateral damage.
The PSA, which is the most commonly used form of administrative detention, institutionalises the state of emergency. Its modus operandi, she adds, creates a “complete, self-enclosed and socialised carceral system – a system of no exit.”
The story behind the PSA
Interestingly, A.G. Noorani, legal luminary and constitutional expert who calls PSA “patently, manifestly and demonstrably unconstitutional” has eloquently laid bare the political intent behind various laws of administrative detention in Kashmir.
In his recent article in Greater Kashmir, he briefly outlines the history of law in Jammu and Kashmir and argues that “Unlike Article 22 of the Indian Constitution (1950) the Constitution of J&K (1956) contains no provisions for preventive detention because it contains no fundamental rights either, from which an exception – preventive detention – was necessary to carve out.”
He explains how the Sheikh Mohammad Abdullah’s desire for Jammu and Kashmir to have its own constitution and fundamental rights for the people was thwarted by Jawaharlal Nehru’s dismissal of the Sheikh from power and his arrest on August 9, 1953. On February 3, 1954 Syed Mir Qasim (a member of an advisory committee on fundamental rights and citizenship, appointed by the Sheikh) went ahead and presented to Jammu and Kashmir’s constituent assembly the report of the basic principles committee relating to fundamental rights and citizenship. The drafting committee followed suit on February 11, 1954. Four days later, the rump constituent assembly complied. On May 14, 1954 the president’s omnibus order under Article 370 provided for preventive detention. With one difference – the legislative power on this subject was to vest in the state’s Legislature not the Indian parliament. In Article 19 the word “reasonable restrictions” would mean ones which the legislature “deems reasonable”.
“This is how J&K derived the power to enact the PSA. In its nearly 40 years of its operation it has wreaked havoc,” writes Noorani.
The PSA, one of the forms of administrative detention, ostensibly enacted by Abdullah in 1978 to take action against the timber mafia, allows preventive detention for people against whom there may be no recognised criminal offence. It provides for detention for a maximum of two years in the case of persons acting in any manner “prejudicial to the security of the state”. It further allows for administrative detention of up to one year for “any person acting in any manner prejudicial to the maintenance of public order”.
The orders have to pass scrutiny by the district magistrates or divisional commissioners. But, according to legal activists, these officials act largely as dossier rubber stampers. Noted criminal lawyer Mir Shafkat Hussain, who has handled hundreds of PSA cases, told me in 2011 that in his career he had come across only two officials who scrutinised the orders carefully before they passed them.
This blatant disregard for even following the letter of the law facilitates the state in acting arbitrarily and arresting anyone it views as dangerous. It allows the police to get away with shoddy work like repeating the same wording for various orders or showing the same weapons seized. Absurd and vague allegations are made. Instead of using institutional procedures and human rights safeguards of the ordinary criminal justice system, the law is used loosely against political activists, members of political groups, young people and dissidents against whom there would be insufficient evidence for a trial judge to keep them locked up.
The order against Parvez, for example, says: “You have achieved a prominent position in the separatist camp under a hidden cover of being a human right activist. In the ongoing unrest, you have been found instigating and advocating the disgruntled elements to resort to illegal activities…”
Even minors wearing lattoo shoes were booked under the PSA on the grounds that their appearance is like that of militants, said noted lawyer Parvez Imroze in his testimony before the People’s Tribunal in 2004.
Many of the allegations are in the realm of the imaginary or couched in the language of conjecture.
Abdul Waheed Bhatt, picked up in suspicious conditions near a haul of weapons, was told, “If you had not been arrested you could definitely (have) crossed IB (international border) to get training…..after returning to India/J&K you would have definitely designed your nefarious activities into action, providing highly pre-judicial to the security of the state.”
In 2010, after the high court quashed the detention against the Mirwaiz Qazir Yasir (whose party is under the Hurriyat), a fresh detention order was sought on the grounds that “there is every likelihood that Yasir may disturb ongoing panchayat elections in the Islamabad (Anantnag) district and may also disturb upcoming Amarnath yatra.”
Indeed, the practice of issuing fresh PSA orders or serial detentions, even revolving-door detentions, particularly against pro-freedom political leaders, has been highlighted in the Amnesty report as a deliberate tool to keep people out of circulation.
Detainees do not have any other means of legal redressal besides filing a habeas corpus petition in the court, since the law does not provide for any judicial review and the advisory board meant for the purpose of hearing complaints scarcely functions.
A very large percent of the habeas corpus petitions result in the orders for detention getting quashed (since the grounds of detention are vague), but the court proceedings take time and in that interim period a number of criminal cases are filed against the detainee. Sometimes almost as soon as the order is quashed, another preventive order is served.
“In revolving-door detentions,” explained Shafkat Hussain, “the detainee is not even released. He is taken from the jail to the Joint Interrogation Centre of the CID until a fresh PSA order is issued and he is back in jail.”
Some of the notable pro-freedom political leaders who have been incarcerated for years with serial detentions include Alam, who besides 32 PSA detention orders has also had 27 FIRs filed against him. Shah has spent more than 25 years in jail and had long spells of house detention. Both the cases were dissected in detail in Amnesty’s 2010 report, but this did not deter the state from continuing to incarcerate them.
Amnesty says that these detentions of political leaders suggests PSA is being used to “disable the first and second tiers of the leadership of the major pro-independence political parties and thereby preventing people’s mobilization.”
The state’s political intention was clearly spelt out by Samuel Verghese, financial commissioner (home) Jammu and Kashmir, who told Amnesty in 2010, “We have to keep some people out of circulation.”
In Alam’s detention order of September 9, 2008 it was said that in order to overcome the menace of terrorism and secessionism, preventive detention will be a “very effective tool against the persons having potential, will, commitment and urge to challenge the integrity and sovereignty of the state.”
The most recent order against him was quashed on December 27 by Justice Muzaffar Hussain Attari. He has already been granted bail in a case of sedition and in another case where he was charged with allegedly waiving a Pakistani flag and raising slogans.
But it remains to be seen whether he will be released, and if so for how long.
Targeting the young
Another salient feature of the state’s use of the PSA is the way it deliberately targets young people, with little regard to whether they are minors or not. Most of them, loosely categorised as stone pelters, are first detained under the PSA even though the charges of rioting, unlawful assembly and so on can be tried under the criminal justice system.
The arrest of minors in 2010, including the case of Faizan Bhatt in which the chief minister Omar Abdullah intervened, had caused a huge outcry about the lack of a juvenile justice system in Kashmir. Mir Urfi, a young woman lawyer from Srinagar who has taken up a number of cases filed against minors, told me about how despite amendments brought in to the PSA act with regard to minors and the setting up of a juvenile home at Harwan in Srinagar, the police continue to arrest minors. The onus then falls on the parents to produce the necessary documents in court to prove the person is a minor.
The strategy of the state, she adds, is to curb the physical movements of youth who have been the vanguards of most protests. Speaking about the difficulties faced by parents or relatives of detainees, she said that often grounds of detention are not provided for a long time and they have to make several trips to divisional commissioners to get the paperwork before they can approach the court.
Many in rural areas are uncertain about how to go about seeking legal redressal and instead approach the local MLA.
It is also no secret that the police file open FIRs and then try and negotiate with the parents or relatives for release of the youths. (Open FIRs are when police stations report incidents of rioting and so on, and cite “unknown persons” as the accused. This enables them to add names later.) For those who seek the legal route, there are practical difficulties in making the journey to Srinagar during the unrest when buses are not running, especially when there was a curfew. Also, the Bar Association had gone on strike, further adding to delays.
Urfi also spoke of the difficulties faced because the detainees are seldom lodged in jails in Kashmir. They are often sent to jail in Jammu – a journey of four or five hours and perceived as a hostile environment for most Kashmiris.
The seven sisters of Mushtaq Ahmed , the minor who also figured in the Amnesty report of 2010, spoke to me of the difficulties they and their mother faced when they would set off to visit their brother, travelling overnight in a bus. “We had very little money. We could not afford to eat in these places outside Kashmir. Often we would be told that he had been shifted to another jail and our journey was in vain.” Mushtaq was released, but is still facing charges in a number of cases related to stone pelting. The family, which is in extreme penury, faces severe harassment by the police.
Habeel Iqbal, a lawyer from Shopian in South Kashmir, gave me the example of Zubair Ahmed Turay, a 24-year-old who has had the PSA slapped against him seven times and who has 19 FIRs filed against him. The earliest one, related to the Arms Act, dates back to when he was 12 years old. He was acquitted in that case and many others, but is still in jail.
Iqbal says that whilst the court has been a little quicker this time in hearing and disposing off cases related to the PSA, the proceedings in the related criminal cases regarding procurement of bail or getting reports from the police are still lengthy.
Whilst the Hurriyat has tried to provide free legal aid to many PSA detainees, there are reports of a new phenomenon. Apparently a certain government-appointed advocate told the family of a detainee that he would deliberately delay filing his reply in court unless the family paid him Rs 30,000.
Ironically, it is laws like these and the impunity they permeate that has created an environment of lawlessness. As Parvez pointed out, the state slaps charges against him and others knowing that they will not be upheld by the court. This erodes credibility and belief in the Indian system. Meanwhile, thousands languish in jail. Even for those released, the possibility of re-detention hangs like a sword over their heads.
As A.G. Noorani writes, the PSA is a way of doing away with the requirement of civilised jurisprudence, it is “a devious way to imprison political opponents”.