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Kashmiris Elect Their Leaders, India Once Told the World. So Why Are They All in Jail?

First, Amit Shah lied in parliament about Farooq Abdullah's detention. Then the government lied in court. Now we have Lok Sabha speaker Om Birla playing along with this charade.

“Ask me no questions and I’ll tell you no fibs”, one of the characters in an Oliver Goldsmith play memorably said, and I was reminded of this line while watching the current farce being enacted over the fate of the elected Member of Parliament from Srinagar, Farooq Abdullah, in which one lie after the other is being told.

On Monday, parliamentarians, cutting across party lines, demanded that the Narendra Modi government allow the former chief minister of Jammu and Kashmir to attend the current session of parliament – the first new one since the abolition of J&K’s autonomy and statehood in August.

It’s bad enough that Union home minister Amit Shah government lied to parliament on August 6 about Abdullah’s illegal detention and has now stonewalled the latest demand. Worse, on Tuesday Lok Sabha speaker Om Birla stated a blatant mistruth – that Shah had not lied to the house during the Article 370 debate when he said Abdullah was at liberty because the latter had been “formally” detained only on September 15, i.e. five weeks later.

Also read: Farooq Abdullah’s Absence Grows Conspicuous in Parliament

Abdullah has been chief minister of the undivided and erstwhile state of Jammu and Kashmir three times. He has been a Rajya Sabha member for one term. He has thrice been elected as a Member of the Lok Sabha, most recently in May 2019, and served in the Union cabinet as a minister for a decade. He has been fielded by the government of India before international delegations as a democratically elected representative of the Kashmiri people.

Remember, for the past several decades, the diplomatic and political message the Government of India has sent out through elected leaders like Abdullah is that it is no longer relevant to talk of a UN plebiscite since the people of Jammu and Kashmir have apparently made their preferences known via the ballot box. 

Well, Abdullah is now in jail. Two other former chief ministers – Mehbooba Mufti and Omar Abdullah – are also in jail. Dozens of other politicians who have taken part in elections at one time or the other are also in custody. Some are under house arrest, others kept captive in makeshift detention centres in Kashmir and even outside, in other parts of India.

Three questions

There are three questions about these arrests which should disturb us. The first is the question of law. Second, of morality. And third, what the Modi government’s Gestapo-type tactics are doing to India’s diplomatic position. Let me consider each one by one.

On the morning of August 5, Farooq Abdullah was among those Kashmiri leaders placed under house arrest. On August 6, Amit Shah denied Abdullah had been detained, telling the Lok Sabha, “I have made it clear thrice, Farooq Abdullahji is at his home, he is not under house arrest, he is not under detention… he is at home having a good time (woh mauj masti mein hain).” The next day, Abdullah spoke to the media in Srinagar to refute the home minister’s claim.

Court order to meet a person not detained? 

Nothing more was said or done by the government thereafter, except that it is a matter of public record that Abdullah was neither able to leave his home nor was anyone other than his close relatives allowed to meet him. 

On September 13, in fact, it took an order of the J&K high court to force the government to allow two National Conference MPs to meet Farooq Abdullah. The court, while ordering the deputy commissioner to allow the MPs in, also placed restrictions on them

“…the petitioners shall ensure that their meeting with their party president and vice-president is restricted to a courtesy call and to know about the well-being of the aforesaid two persons… the petitioners, after meeting their party president and vice-president, shall not go to press/ media regarding their meeting and deliberations with the aforesaid persons.”

The government insisted to the court that there was no “formal restriction” on Farooq Abdullah meeting the two MPs, but surely such a petition and such an order are only possible if Abdullah has indeed been detained! Why would someone take the trouble of going to court if they can simply knock on Abdullah’s front door and walk in?

Obviously someone was preventing them from meeting the senior leader. 

The government’s lies were in serious danger of unravelling even further when the MDMK MP Vaiko moved a habeas corpus petition in the Supreme Court, demanding that the government produce Abdullah and give an account of where and why he was being held and under what provisions of law. The matter was listed for hearing on September 16. Since the government knew there was no provision of law it could site, it panicked and converted what had been an illegal detention into one with a semblance of legality – hours before the court was to convene, it served Abdullah with a detention order under the draconian Public Safety Act. This was on September 15.

Also read: Omar, Farooq Feel Betrayed, Won’t Keep Quiet: Abdullah Family

Now let us consider Lok Sabha speaker Om Birla’s astonishing claim. He defended Amit Shah against the charge of lying by saying Abdullah had not been “formally detained” at the time the home minister had told parliament he was at liberty. As if everything in India, and especially under the Modi government, happens by the rules, Birla then said it was mandatory for the authorities to inform the speaker if an MP is arrested or detained and that he did not get any such information until after the September 15 PSA detention. By default, thus, the House cannot treat what happened to him earlier as an arrest.

By any yardstick, this is atrocious logic. Fact: The government detained Abdullah on August 5.  Fact: The home minister lied to parliament about this. Fact: Two MPs had to approach the high court for permission to visit someone who was supposedly not under arrest. Fact: The court grants this permission and places restrictions on what they can say after they meet this person who is supposedly not under arrest. And yet, the honourable speaker insists Farooq Abdullah was a free man till September 15 because the government never told him otherwise!

Another illegal order

Sadly, Farooq Abdullah is not the only leader whose detention is totally illegal. I recently obtained a copy of the detention order served on Mehbooba Mufti on August 5, soon after Amit Shah said the government was scrapping Article 370.

Detention order served on Mehbooba Mufti, leader of the Peoples Democratic Party, on August 5, 2019. Photo: The Wire

Several things stand out in this document. First, the detention order is not dated. Second, it cites no provision of law. Though it looks like an order under Section 107 of the Code of Criminal Procedure, not a single section of the Indian Penal Code or CrPC, nor any other statute allowing preventive detention finds mention anywhere in the document. Even if it did mention 107, its use in this manner – as Justice Anjana Prakash has argued – is a violation of the law laid down by the Supreme Court. Finally, there is no expiry date mentioned in the order. It is, therefore, totally open ended. Unlike even the PSA or the National Security Act, whose detentions come with an expiry date, Mehbooba Mufti has no idea when she will be set free.

In other words, a magistrate accompanied with policemen walked into her home with this piece of paper, which was signed but not dated, and locked her up indefinitely without telling her under what provision of law he was acting or how long she would be in custody. And this is supposed be a democracy. 

I have shared this document with a couple of retired high court and Supreme Court judges and their response: This kind of arrest is totally illegal. “This is amazing,” said one of the judges. “Is it valid for life?”

Also read: Allegations that Lone, Faesal ‘Humiliated’ as Detained Kashmiri Politicians Moved to New Location

Of course, these leaders can always go to court and challenge this illegality so why haven’t they? One of them – Shah Faesal – did, while Vaiko went to court on Farooq Abdullah’s behalf. And what happened? Faesal was pressured to withdraw his petition after he was threatened with arrest under the PSA. And the fact that Abdullah went in under the PSA the night before the Supreme Court was to hear his case makes it clear Amit Shah and his officials are not holding out idle threats.

Apart from the question of law, or rather the lack of it, there is a deeply troubling moral aspect to these illegal detentions. The fact is that among the hundreds of National Conference, Peoples Democratic Party and Congress leaders and activists detained are many who have lost family members to terrorist attacks over the years.

These are men and women who stood by the Government of India’s policies in Jammu and Kashmir through thick and thin, right or wrong, not just at risk to their physical security but also earning the hatred of ordinary Kashmiris in the bargain. Those ordinary Kashmiris may be forgiven their schadenfreude but this unconscionable treatment reflects very, very badly on the Indian State.

Diplomatic dimension

Finally, we need to consider the diplomatic damage these illegal detentions are causing the country. India has already been subjected to unprecedented critical scrutiny by the international media and even by countries which are close strategic partners. But there is another dimension which the Modi government brains trust appears not to have considered: Indian diplomats over the years have always cited the fact that Kashmir elected its chief ministers and MPs as a reason why there is no longer any need to talk about a plebiscite.

“In today’s world self-determination implies the right of participation in freely held elections by all sections of society,” an Indian diplomat told a UN conference on the right to self-determination in 2003. “The contention that the people of Jammu and Kashmir have not been able to express their wishes is also wrong. Since 1947 the people of Jammu and Kashmir ( Ladakh, Jammu and the Valley) have participated in elections…,” the MEA’s ‘Fact Sheet on Jammu and Kashmir’ states. 

Also read: By Detaining Farooq, the Centre Signals its Contempt for Kashmiri Representation

In April 2003, the Ministry of External Affairs published an authoritative briefing paper, ‘The Jammu and Kashmir Issue’ aimed at countering those who questioned J&K’s status as an integral part of India. The document notes that India waited several years for Pakistan to fulfil its obligations in order for a plebiscite to be held:

“When that did not happen, the people of Jammu and Kashmir then convened a Constituent Assembly in 1951, which once again reaffirmed the Accession of the State to India in 1956 and finalised the Constitution for the State. The Jammu and Kashmir Constitution reaffirms that “the State is and shall be an integral part of the Union of India.” (Emphasis added)

“The people, therefore, were consulted”, the MEA document says, and then quotes V.K. Krishna Menon from November 1957 to added effect:

“We did not consult them privately; we did not consult them by selecting the people who were to be consulted. We consulted them by a normal process of democratic election – not even for a Parliament which we established, or the existing Government of Kashmir established, but for a Constituent Assembly.” 

Moving on to the significance of elections and elected representatives, the MEA document then stresses:

“In several subsequent local, state and national elections the people of Jammu and Kashmir have repeatedly exercised their democratic choice.”

There are three points to note here. First, the J&K constitution – whose reaffirmation that Kashmir is an integral part of India, the MEA conveniently quotes – is no more. Amit Shah and Narendra Modi disappeared it along with the essence of Article 370.

Second, describing elections as  the “repeated exercise of democratic choice” presupposes the leaders elected by this process represent the will of the people.

Also read: MEP Dropped From Visit Says it Is ‘Affront to Democracy’ that Indian MPs Are Barred from Kashmir

Third, it should be pretty obvious that the Modi government’s decision to lock up those same leaders indefinitely – 108 days and counting – completely robs the argument that it is the will of the Kashmiri people which prevails  of whatever credibility it might have had.

Despite this, the same worn-out claim about elected leaders was trotted out by Vice President Venkaiah Naidu at a public event in Visakhapatnam as recently as August 28. This is what he said:

“They are talking about Kashmir. What is there to discuss in Kashmir? Kashmir is an integral part of India. Since 1952 onwards… elections are held, chief ministers are elected, there is an elected government in the state, Members of Parliament are elected. And what is there left to discuss? And yes, there is something remaining to discuss with our neighbour, which is handover the remaining part of Kashmir, which is PoK, to us”. (Emphasis added)

Please note that Vice President Naidu is actually citing the fact that “elections are held, chief ministers are elected, Members of Parliament are elected” as reason for asserting there is nothing left to discuss with Pakistan or the international community as far as Kashmir is concerned. And he didn’t realise the fact that three of those elected chief ministers (one of whom is also an elected MP) are currently in jail had knocked the stuffing out of his logic.

Of course, the vice president often gets carried away with words. He wrote an entire op-ed in The Hindu last month based on the bogus claim that Dr B.R. Ambedkar had been against Article 370. The ‘quote’ he cited was one that an RSS leader had fabricated years after Ambedkar died. This, when Ambedkar’s collected works, published by the Maharashtra government, contained no such quote but instead had other quotes from him advocating a plebiscite in Kashmir!

At the end of the day, whether we are moved by concerns about law, morality, or diplomacy, it should be clear that the continuing illegal detention of Farooq Abdullah, Mehbooba Mufti, Omar Abdullah, Shah Faesal, Sajjad Lone and hundreds of other leaders, big and small, mainstream and separatist, old and young, is a travesty that must be opposed.