Highway Ban in Kashmir

What are the signs of war?

A screeching halt of normal life.  The doldrums of the quotidian shaken by a new arbitrary order. Schools shut. Children rounded up, beaten, detained, tear-gas-blood-vomit. Hospitals slowed down. Deliveries disrupted. New lives asked to wait before coming into this world; ordered to line up in queues.  Terror ringing through deserted streets.Deaths.

These are the signs of untelevised, silent war found in abundance in Jammu and Kashmir since 80,000 additional troops poured into the world’s most militarized zone in the anticipation of Parliament’s decision to abrogate Article 370 and 35A of the Indian Constitution.

The only question worth asking is who is waging this war? The Government of India answers it differently.

Since August 5 when Indian Parliament unilaterally decided to fundamentally alter the constitutional relationship Union of India shared with the state of Jammu and Kashmir, thousands of leaders, activists, human rights lawyers in the region have been put in detention in ‘subsidiary’ jails, including those from mainstream political parties. In an ironic turn of events for mainstream opposition party in J&K Assembly, the National Conference, its chairperson, LokSabha member from Srinagar constituency and former Union Minister Farooq Abdullah has been detained under draconian preventive detention law, the Public Safety Act of J&K, 1978, passed by his father’s government in 1978. The police dossier has listed 27 charges against him as grounds for his detention, including public statements made in 2016 and his potential ability to create ‘public disorder’ in the Valley.

Media reports have revealed that of the four thousand arrests made in J&K one month since the lockdown on August 5, three hundred have been under Public Safety Act. 252 habeas corpus petitions have been filed in the J&K High Court against these detentions. This has been despite the intense communication blockade and accessibility issues in the region.

But the history of the Act suggests how it has been used as tool for political repression and spreading terror among civilians. An Indian Express report mentioned that from February 14 (when the Pulwama attack on Indian army convoy took place), to August 5 this year, 150 habeas corpus petitions had been filed against PSA detentions of which verdicts came in 39 cases. 80% of these 39 detentions were quashed by the court. It has been indiscriminately used in different periods, the 1990s, 2008-11, 2016, and now.  In 2012, the UN Special Rapporteur on situation of human rights defender Margaret Sekaggya asked for repeal of PSA.

The Act allows the State Government (Section 8) to detain persons for acts that are prejudicial to security of State (punishable with imprisonment for 2 years), maintenance of public order, crimes relating to smuggling of timber (both punishable with imprisonment for 12 months) and when the person is a ‘foreigner’ under the Foreigner’s Act or resident of PoK.

The accused person can be detained for 10 days without being informed of grounds of detention order (Section 13) and still, facts ‘against public interest’ can be withheld.

The Act envisages an Advisory Board to include a sitting or retired High court judge. Its aim is to act as a tool of judicial check on arbitrary detentions but on the ground, these Boards invariably mimic the Government’s position. Section 16 affords the detained person an opportunity to make a direct representation to the Board. If the Board is in fact envisaged as a judicial check, the detained person must be allowed legal counsel as part of natural justice to argue for his case, which he is categorically denied (clause 5 of Section 16). The role of Advisory Board is crucial because if the Board does not find sufficient cause in the order of detention after hearing both parties, the Government is bound to revoke it. Section 19 allows the Government to make fresh detention orders against the same person on same facts if the earlier order of detention was revoked ‘apprehending’ a challenge to its legality due to technical defect.

While PSA has been invoked against Abdullah for speeches made three years ago, another draconian act has been used for past acts, not to mete out justice, but seek naked vengeance. The anti-terror Unlawful Activities (Prevention) Act, 1967 has been invoked against the Yasin-malik faction of JKLF on 22nd March 2019for its role in thirty year old cases going back to 1980s, including its role in the exodus of Kashmiri Pandits in 1990s which, according to Home Secretary Rajiv Gauba, Yasin Malik had ‘masterminded’.  It has now been designated as an ‘unlawful association’. What is absurd about this charge is that JKLF leader Yasin Malik had already been given political legitimacy and legitimate political space by the previous union governments after he eschewed violence for democratic struggle. If UAPA criminalizes any ‘association’ with unlawful organizations should the erstwhile Vajpayee government and Manmohan Singh government be also apprehended?

UAPA is the classic anti-terror law that has been misused to strike at activities politically unsuitable for the establishment.  It makes two kinds of acts an offence-, ‘unlawful activity’ (those relating to territorial sovereignty and integrity, claims for secession of India, actions that disrupt, question territorial sovereignty of India) defined in Section 2(o), punishable under Section 10, and ‘terrorist act’ defined in Section 15 as acts that, threaten or ‘likely’ to threaten the ‘unity’, ‘integrity’, ‘security’, ‘economic security’ or sovereignty of India, or intent to strike terror, or likely to strike terror by use of violence. Many of these terms are open to such wide interpretation that almost anything that is deemed anti-establishment can be termed ‘unlawful activity’.

With the recent amendments made to UAPA in 2019, now individuals in addition to organizations can be designated as ‘terrorists’ in the Schedule of the Act. The amendments have been challenged in the Supreme Court of India. UAPA denies basic principles of natural justice like right to legal representation (before the Tribunal), right to be informed of grounds of arrest, right to remain silent. Under Section 167 of the Indian law on criminal procedure (Code of Criminal Procedure, 1973) the maximum period allowed under police custody is fifteen days, which can be extended to judicial custody of ninety days (for offences punishable with death, imprisonment for life or imprisonment for not less than ten years) and sixty days for ‘other offences’, following which the accused has a right to bail.

This distinction is conveniently obliterated under UAPA which provides for maximum ninety days of custody extendable to one hundred eighty days (Section 43D), even though an offence for being a member of ‘unlawful association’ is punishable by only two years (Section 10). Police officers investigating offences under UAPA can simply make an affidavit to secure police custody from judicial custody of the accused. There is no right to bail if investigations are not completed even after this. Period of custody can be extended indefinitely. This law has been used as a tool for spreading terror among those who have a guaranteed democratic and constitutional right to express, speak and associate.

When acts of terror and crimes against humanity are talked about, one must pause and look at the role of the State in manufacturing widespread violence in neat, organized and completely legal ways.

Cheshta Rajora is a final year student at Faculty of Law, Delhi University



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