kashmir psa

‘Vague Terms Used to Silence Critics’: Activists Slam PSA Dossier on Sajad Gul

In its dossier, the J&K police justified invoking the Public Safety Act against the journalist because of his “negative critique” of the administration.

Srinagar: Free speech activists have slammed the dossier that the Jammu and Kashmir (J&K) police have issued to justify the detention of journalist Sajad Gul under the Public Safety Act (PSA), saying it has become the norm to use vague terms such as ‘national interest’ to silence critics of the Union government.

Gul, a final-year student of convergent journalism at the Central University of Kashmir, was initially arrested in early January for uploading a video of a protest. While he was granted bail by a court, the police invoked the PSA to keep him in detention.

Activists told The Wire that vague terms such as “national interest”, “threat to law and order”, “country’s sovereignty” or similar others have been used by law enforcement agencies to target the critics of the policies adopted by the Union government in Jammu and Kashmir following the dilution of Article 370. According to official data, the number of cases filed under the PSA in J&K has spiked from 134 in 2020 to 331 last year.

Geeta Seshu of the Free Speech Collective, a rights advocacy group, termed the PSA dossier against Gul as “a fantastic work of fiction if it wasn’t such a serious charge”.

“The dossier has made completely wild statements and not ever tried to maintain the fig leaf of evidence, because obviously there isn’t any! It actually admits it has zero basis to charge him, as it says there is ‘every apprehension that you may get bailed out from an Hon’ble court of law’, thereby denying even the process of justice for him,” she told The Wire.

Seshu said the treatment meted out to Gul is “extremely distressing” as every citizen of India has the right to disseminate information in the public interest. “It is this right which is being denied and criminalised. Kashmir is long considered the laboratory for [censoring] the media and the detention of Sajad Gul is a warning to all of us,” she said.

Fahad Shah, the editor of the news website The Kashmir Walla – where Gul works, has approached the J&K and Ladakh high court with a petition to quash the PSA invoked against Gul. “The PSA was slapped against him only to keep him in jail after the court granted him bail. This is abuse of power to harass and suppress a young journalist and send a message to everyone else that if you try to report people’s expression of dissent, you will be silenced,” he said.

What did the dossier say?

The J&K police defended Gul’s detention under the draconian PSA by saying that the journalists reports less about the “welfare” of the Union Territory and is “rather promoting enmity”. The police dossier claimed that his work can “manipulate” the people of Kashmir, posing a “potential threat” to the “sovereignty of the country.”

Gul was initially whisked away from his Bandipora residence on January 5 and charged under Sections 147 and 148 (rioting with deadly weapons and subsequent punishment), 336 (rashly or negligently endangering human life), 307 (attempt to murder) and 153-B (imputations, assertions prejudicial to national-integration) of the Indian Penal Code (IPC).

After spending around nine days in jail, a local court in the north Kashmir district granted him bail on January 15. However, instead of releasing him, the police booked him under the stringent PSA, described by Amnesty International as a “lawless law”, and shifted him more than 300 km away, to the Kot Bhalwal jail in Jammu.

The “arbitrary” detention prompted massive outrage across the country. Global rights advocacy organisations and media groups such as the Committee to Protect Journalists, regional political leaders and local journalists in Kashmir also urged the authorities to “drop their investigation related to his journalistic work”.

In its dossier, the J&K police justified invoking the act against Gul because of his “negative critique” (sic) of the policies of J&K administration. “You are fond and have natural tendency to support your anti national/anti social desires, so as to cherish your dream….You remain in search of anti national/ anti social tweets,” the dossier says.

The three-page dossier submitted by the senior superintendent of police, Bandipora, on January 11 and approved by the Bandipora district magistrate, Owais Ahmad, accuses Gul of posting tweets “without factual check in order to provoke the people against the Government”. The dossier accused Gul of working as “self proclaimed messiah of terrorists and their families” who “raises issues which harm the national interests”.

Women walk past police during clashes with stone pelters in Srinagar, Kashmir. Photo: Reuters/Cathal McNaughton

Refers to previous cases

The dossier also referred to the three FIRs in which Gul has been booked over the past year to justify his detention under the PSA. One of the FIRs was filed on a police complaint following an anti-encroachment drive carried out by the Bandipora district administration in the Hajin area, the native village of Gul, in February last year, allegedly without serving notices to the encroachers.

Gul had reported on the “illegal” demolition drive for a local news portal, Kashmir Walla, where he had joined as a staff reporter before his arrest. Gul’s brother Javed Ahmed said he was threatened by a local tehsildar for reporting the allegations of the locals. “On the next day, the tehsildar came to our village and demolished our uncle’s fence and also damaged our property,” Javed told The Wire.

In this case (FIR No 12/2021 at Hajin Police Station), Gul was booked under Sections 147 (punishment for rioting), 336 (rashly or negligently endangering human life), 353 (assaulting public servant) and 447 (criminal trespass) of the IPC. However, he was granted bail by a local court.

“Police and local officials accused my brother of attacking the officials who were carrying out the anti-encroachment drive. But the truth is that he was not even present in the area on that day. They framed him under false charges because he was doing his job,” Ahmed said.

The second case (FIR No 79/2021) was also filed by the Hajin police station following an alleged encounter on October 11 last year in which the J&K police claimed to have gunned down a suspected militant, Imtiyaz Ahmad Dar, a resident of the Shahgund area of Hajin, near his residence. Gul reported the allegations of the family, who claimed that Dar was gunned down in a “staged” gun battle.

The family’s allegations were also reported by sections of the local media in Kashmir, prompting the J&K administration to order an inquiry on December 7. However, the fate of the official probe remains unknown. Bandipora district magistrate Ahmad could not be reached for his comment.

The J&K police, however, denied the allegations. Dar, they said, killed a civilian in Bandipora in October last year, when Kashmir was rattled by a series of targeted killings of non-locals and civilians. The police filed a case under Sections 120-B (criminal conspiracy), 153-B (imputations, assertions prejudicial to national integration) and 505 (public mischief) of the IPC and named Gul as one of the accused.

Regrading his story on the Shahgund encounter, the PSA dossier says, Gul spread “false and fake narrative of anti-terrorist operation … in which one local terrorist …. was eliminated thereby agitating against the security forces.”

The latest FIR was filed on January 3, when Saleem Parray, who topped the list of the ten most wanted militants in Kashmir, was killed in an encounter near the famed Mughal Gardens in Srinagar. After the killing, Gul visited Parray’s residence, where a handful of people – purportedly the militant’s relatives and neighbours – were shouting anti-India slogans while demanding his body.

Gul posted a video of the sloganeering on his Facebook page. In its dossier, the police also cite this act of recording and uploading the video on social media – which is part of Gul’s job as a journalist. The police accused Gul of “provoking the assembled people against the government established by law”.

Defending the charges, the J&K Police said Gul is “filled with hatred” against the Union of India, terming him a “potential threat to the law and order” in Kashmir, because he has “good number of followers on social media”. The journalism student has little over 1,100, 1,131 and 549 followers on Twitter, Facebook and Instagram respectively.

Amit Shah’s Visit to Kashmir Is Testimony to the Modi Government’s Failed Policy

The disillusionment and hopelessness created by the BJP’s divisive policies is bound to foster conditions for extremism to grow

Union home minister Amit Shah’s recently concluded visit to Jammu and Kashmir, his first since its special status of under Article 370 was arbitrarily and unconstitutionally revoked in August 2019, turned out to be one more addition to a long list of disillusionments since nothing but rhetoric came out of it. The claims made by Shah that, since the downgrading of the state with special status into two union territories, there has been progress in J&K, are nothing but a hoax.

The home minister’s visit was preceded by a spree of arrests, restrictions, the undeclared snapping of internet services in several areas, the seizure of thousands of two-wheelers and the booking of youths under draconian laws like the Unlawful Activities (Prevention) Act (UAPA) and the Public Safety Act (PSA), all of which are indicative of the continuing volatility in the Valley. The several security reviews that Shah presided over during the visit were testimony to the challenges in Kashmir, belying his and other ministers’ assertions that “terrorism ended” after August 5, 2019.

Through a series of restricted public engagements and official functions in Jammu as well as in the Valley, the home minister’s single-minded focus was on reiterating the BJP’s political narrative on Kashmir. Through the visit, he also wanted to hoodwink the people of the country and blow the trumpet of so-called normalcy in Kashmir.

But his ‘normalcy narrative’ was punctured already due to the unfortunate civilian killings in the Valley and one of the longest anti-militancy operations in the Poonch district of Jammu region, where nine army soldiers, including two officers, have already lost their lives.

Also read: Kashmir: Two More Killings Mark Step Up of Offensive Against Non-Locals

The reality is that the BJP government’s claims that the August, 2019 decision has reduced terror incidents and brought an atmosphere of peace and security to Kashmir are nothing but concocted and fabricated stories. In the two years and more, the silence of people, achieved by force, is being projected as acceptance of the government’s unconstitutional and arbitrary decisions. In reality, treating ‘silence-by-force’ as acceptance is the biggest mistake.

The home minister said that he had come to Kashmir to forge a friendship with the youth, however, at the same time, hundreds of these youths were being called to police stations to be detained and humiliated by law enforcing agencies. Moreover on Tuesday, two FIRs under the UAPA were registered against MBBS students from two medical colleges in Srinagar for allegedly celebrating Pakistan’s win over India in the ongoing T20 Cricket World Cup. Even female MBBS students have not been spared. Is this the model of ‘friendship’ which Amit Shah wants to build with Kashmir’s youth?

Security had been stepped up in Srinagar’s Lal Chowk ahead of the home minister’s visit. Photo: Faizan Meer.

The reality is that the disillusionment and denial of the constitutional and democratic rights of Kashmiris forces them to cheer for Pakistan. After the revocation of Kashmir’s special status, people in the erstwhile state have been silenced by force; on Sunday night, they give vent to their anger and frustration.

The BJP government has been boasting that its August 5, 2019 decision has ushered in a “Naya Kashmir” but the question that, naturally, follows is: what has this so-called “Naya Kashmir” given to the region? By all accounts, civil liberties have been curtailed in; the media has been gagged; dissenting voices are being silenced with force and government employees are being sacked arbitrarily. Can a new Kashmir be built by destroying the true Naya Kashmir; one which was achieved after a historic struggle and sacrifices against feudalism and autocratic rule?

The highest unemployment rate of 21.6% and staggering inflation rate of 7.39% in J&K belies the BJP’s claims of “growth and development” in the region post-2019.

J&K has been under the Union’s control since June, 2018 and since then, the BJP has been trying to systematically delegitimise the mainstream political parties in the region. The home minister fell back on the “three families looted and brought ruin to J&K” trope. Why does he forget that the BJP shared power in J&K and at the Centre with the same families, at one time or another? Why were those very same families – and the parties associated with them – considered so important that none other than the Prime Minister invited them to Delhi for talks in June?

The rhetoric of holding assembly elections in J&K after delimitation and the restoration of statehood was, once again, repeated by the home minister. The J&K Reorganisation Act, 2019, under which the delimitation process is being carried out, has already been challenged in the Supreme Court. the broad perception is that the exercise is being carried out to further disempower the people of Kashmir. The question is: what is stopping the Union government from restoring the statehood of J&K, announcements for which have been made for more than two years, within and outside Parliament?

Also read: Amit Shah Says J&K’s Statehood Will Not Be Restored Before Elections, Delimitation Exercise

The reality is that the prevailing situation in Kashmir has been manufactured by the BJP-RSS combine by design. Their only intention behind the abolition of J&K’s constitution was to change the demography of this historic state.

The J&K administration’s recent order to authorise district collectors to alienate agricultural land to a non-agriculturist in order to expand primary activity to a larger, commercial scale, is part of this ploy.

Last year, too, it enacted land laws that opened the region to all comers, liberalised domicile laws, conducted demolition drives in forests, made structural changes in the administration which reduced the centrality of Kashmiris, raised new property taxes, opened state resources to outsiders and reduced the retirement age as well as the civil service quota for local Indian Administrative Services (IAS) and Indian Police Service (IPS) officers in the union territory (UT) from 50% to 33%.

An attempt is being made to create a wedge between regions and communities for partisan interests.

Also read: Contrary to Government Line, New J&K Land Laws Can Effect Sweeping Changes

The home minister said that 30,000 people have been elected as the representatives of the people of Kashmir. But the reality is that J&K is suffering because of the denial of democracy which has been a consistent policy of the Indian state, being followed aggressively by the current regime in Delhi.

Since 2014, every attempt has been made to dismantle any remnants of democracy in Kashmir. Shah is still claiming the conducting of elections for local bodies and panchayats as a “victory of democracy.” The fact is that these elected representatives are not being facilitated to function properly and are not being empowered to serve the people either.

It is time that the secular democratic forces in the country come forward and unitedly raise their voice in defence of the rights of the people and their legitimate aspirations. The disillusionment and hopelessness created among the people of J&K by the nefarious designs of the BJP government should not get further deepened. It can only provide opportunities for extremism to grow.

M.Y. Tarigami is a CPI(M) central committee member and former MLA from the Kulgam constituency.

Kashmir Is in a Lockdown Within the Lockdown, This Must End Now

The Union government has also used the opportunity of the lockdown to implement domicile laws for the UT which should have been debated.

Jammu and Kashmir continues to be in a social, economic, political and communication lockdown since August 5, 2019.

The lockdown imposed by the Union government is now doubly reinforced by the coronavirus pandemic.

While Kashmir has dropped off the national radar due to concerns with the pandemic, the West Asian elite’s attention is drawn to it now because of the current regime’s perceived Islamophobia. This has also led to adverse international media attention.

Within the country, there has never been greater need to be sensitive to disturbing developments in the UT and the immediate needs of its residents.

Many senior political leaders, including a former chief minister, continue to be in detention, in several cases under the draconian Public Safety Act.

Meanwhile, there are attempts to incubate artificial political processes – through village and local body elections and facilitating the launch of a new political party. However, these processes have failed to fill the political vacuum.

The Union government has also used the opportunity of the lockdown to implement domicile laws for the UT which should have been debated by the people’s representatives and by the affected citizens.

Also read: J&K Govt’s New Domicile Certificate Rules a Move to Undercut Resistance from Kashmiri Officials?

The media which could have promoted debate and discussion is being bullied. The administration has chosen to harass local accredited correspondents and photo-journalists, preventing them from performing their legitimate professional duties. Several have been called to police stations at odd hours to explain their reportage.

Instead of using editorial and Press Council of India complaint mechanisms, the state police seems to be the preferred instrument of the administration to deal with journalists.

The communication lockdown – permitting only 2G internet, premised on the assumption that faster internet speeds help terrorists – is causing havoc not only in banking, trade, business and healthcare but in the field of education as well. The 2G technology cannot sustain online learning, which is a ready option being used in the rest of the country.

The problem is particularly acute for students who have returned home because of the pandemic from universities and colleges in the rest of India. They cannot attend online classes and webinars or submit assignments. They may not be able to appear for online end-semester examinations which universities and colleges plan to hold soon. The government’s stand before the Supreme Court that internet access is not a right militates against the apex court’s own rulings that information is a Fundamental Right under Article 19 (1) a of the Constitution.

The economy is also in disarray.

For a state that is heavily dependent on tourism and horticulture, the lockdown has meant that two tourist seasons have passed without any business and the marketing of fruit produce has been hampered severely.

Also read: J&K Angered by Centre’s Denial of Permanent CAT Benches in Srinagar and Jammu

The cherry season is already on and with pears and early varieties of apple ready for harvesting soon, farmers are staring at the prospect of rotting produce for lack of proper distribution and market access.

Artisans face distress and dealers in handicrafts are unable to function with piling up of stocks. No relief measures have been announced for them. Unlike in the rest of India, there has been no deferment or staggering of bank loans in J&K.

In addition, the people of J&K are overwhelmed by the coronavirus pandemic and the lack of healthcare infrastructure to deal with its spread.

This is particularly so in Kashmir Valley, where the people infected are far larger in number compared to Jammu. The return of the Jammu and Kashmiri migrants, businessmen and students from the rest of the country and abroad who have already returned – without adequate testing and quarantine at the border entry points has generated overpowering apprehensions in the state.

The Kashmir Valley alone has an estimated 50,000 to 70,000 people who have returned. Those infected could easily overwhelm the UT’s meagre health facilities.

Meanwhile, militancy is on the rise. More disaffected youth are joining militancy, there are also reports of increased infiltration from across the border and even those areas where militancy had subsided are on the boil. The situation is unlikely to take a positive turn in the months ahead.

Under these circumstances, the Concerned Citizens’ Group recommends the following:

Release of all political leaders. A befitting occasion for doing so would be the upcoming festival of Eid ul Fitr.
Do not use the lack of a legislative assembly to push through policies with long term consequences.
Stop the intimidation of accredited media personnel.
Restore 4G communication in J&K to alleviate the problems of businessmen, traders, healthcare professionals and most importantly students so that they do not lose an academic year.
Extend the same bank loan deferment and facilities to J&K businesses as in the rest of the country.
Ensure unfettered market access and adequate distribution channels for horticultural produce.
Announce specific financial packages for the artisans.
Ensure adherence to laid down health protocols to alleviate peoples’ fears about returning Kashmiris.
Ensure that the healthcare facilities remain ahead of the coronavirus curve in the UT.
Open up the political space in J&K without which militancy cannot be controlled.

Yashwant Sinha, Wajahat Habibullah, Kapil Kak, Bharat Bhushan and Sushobha Barve form the Concerned Citizens’ Group.

J&K: Government Revokes PSA of 28 People; Mehbooba Mufti Still in Detention

Officials said Mohammad Yasin Khan, head of the Kashmir Traders and Manufacturing Federation and the Kashmir Economic Alliance is a prominent name to figure in the list.

Srinagar: The Jammu and Kashmir government has revoked the stringent Public Safety Act (PSA) against 28 people lodged in jails within and outside the Union territory, officials said on Saturday.

A prominent name to figure in the list is Mohammad Yasin Khan, head of the Kashmir Traders and Manufacturing Federation (KTMF) and the Kashmir Economic Alliance (KEA), they added.

Hundreds of people, including mainstream leaders, were detained and booked under the PSA after August 5 last year when the Centre revoked the special status of the erstwhile state of Jammu and Kashmir and bifurcate it into Union territories.

Several of them, including former chief ministers Farooq Abdullah and Omar Abdullah, were recently released.

However, other mainstream leaders who continue to be in detention include former chief minister and PDP president Mehbooba Mufti, NC general secretary Ali Mohammad Sagar and former minister Naeem Akhtar.

In Srinagar, a Mother Begs So She Can Meet Her Son Detained in Agra

Zamrooda’s son has been languishing in jail for the past eight months, after he was picked up during a midnight raid in August last year.

Srinagar: Abject poverty and yearning to meet her son who has been held under the stringent Public Safety Act (PSA) in Agra Central Jail has pushed Zamrooda, a resident of Srinagar, to the point of begging.

Her son, Asif Ahmad, was declared a “potential threat to peace” by the Jammu and Kashmir Police and picked up during a midnight raid at his residence in August last year, days after New Delhi scrapped the state’s special status. Along with dozens of youngsters from Kashmiri, he has been languishing in the jail, more than 1,500 km away from home.

His family lives in the congested Batamaloo locality in Srinagar and cannot afford to travel to visit him.

In January, 44-year-old Zamrooda approached the Jammu and Kashmir prison authorities seeking permission to meet her 22-year-old son. The visit was cleared on February 3, after Srinagar’s Central Jail authorities wrote to the superintendent of the Central Jail Agra.

A few days later, as the family was discussing the travel expenses involved in visiting Ahmad, a man from another locality in Srinagar, who had gone to meet his detained son in Agra, knocked on their door with a message for Zamrooda from her younger son.

“Asif told me to convey to you, ‘I’m craving to see you. Tell my mother to visit me’,” he told the family.

The words left Zamrooda restless. With no option in sight, she finally started begging. “My heart pains and yearns to see my son. I’m left with no option, but to beg for monetary help to visit him,” she said, at her residence.

For several days now, she leaves her home in the morning after finishing her chores and visits government offices, public places and localities in Srinagar to seek financial help.

“Since the day I got the message from my son, I haven’t slept at all. I wake up in the middle of the night and start crying. Sometimes, I feel choked. Only a mother can understand the pain I’m going through,” said Zamrooda, breaking down.

For the past few days, both Zamrooda and her husband, Mushtaq Ahmad Khushoo, have been planning to visit their son by the end of March. They would require at least Rs 15,000 for travel expenses, Zamrooda said. “We are still short of some money.”

Also read: Families Demand Release of Kashmiri Detainees Over Coronavirus Risks

Zamrooda has a wish list, too. She wants to buy some clothes for her son and give him some pocket money, as she fears he may not be freed anytime soon.

“I came to know that it is very hot these days in Agra. I wanted to buy Asif a pair of cotton shirts and get him some fruits as well. But I don’t have enough money yet,” she said.

Her husband is a labourer by profession and their elder son is a street vendor. “There is no work in Kashmir these days. We hardly earn enough to make a living,” he said, while at his residence.

According to Ahmad’s lawyer, Wajid Muhammad, who is pleading his case in the J&K high court, the young man was arrested for his alleged involvement in pelting stones on forces, in a case dating back to June 2016.

“The police scaled the boundary wall of our house and banged the main door. Then, they asked for Asif and took him away without listening to us,” said Zamrooda.

Asif Ahmad has been under detention at a jail in Agra since August 2019. Photo: Mudasir Ahmad

The next day, he was flown to the Agra jail. The PSA, described by Amnesty International as “lawless law”, allows the government to detain a person without trial for up to two years.

Also read: ‘An Hour to Download ICU Guidelines’: Amid COVID-19, Kashmir Doctors Struggle With Slow Internet

This is, however, not the first time Asif, a class eight dropout, has been arrested. In 2018, the family said, he was booked under the PSA and detained at Srinagar’s Central Jail for eight months.

He has been in arrested “several times” since the summer of 2016 when Kashmir erupted into violence in response to the killing of militant commander Burhan Wani.

“I won’t lie. He participated in protests that year. But who didn’t? The entire Kashmir was on the roads. He was detained at a local police station for a month and later he was again held for another month at a different police station,” said Zamrooda.

But, the young man, also a vendor, had “learned his lessons” and would stay away from “everything,” the family said. “Police, however, didn’t stop harassing him. Every time there was a protest or some other issue in Batamaloo, they would arrest my son for no fault of his,” said Zamrooda.

A report by two human right groups – J&K Coalition of Civil Society and Association of Parents of Disappeared Persons – earlier this year said at least 412 persons, including youths, lawyers and businessmen were booked under the controversial PSA after August 5.

Most of those arrested are still languishing in different jails in UP. “My son’s case is in the high court, but there has been no progress all these months,” said Zamrooda. “If only the government can bring him back to Srinagar jail, it will at least allow us to visit him occasionally.”

Lok Sabha Claims Farooq Abdullah ‘Applied for Leave’ from House but Won’t Share Details

The Lower House’s second oldest MP has been under detention for more than six months.

New Delhi: In response to a Right to Information request filed by India Today, the Lok Sabha secretariat claims MP Farooq Abdullah – who has been under detention since August 5, 2019 – has been applying for leaves from the lower house though parliament’s website where all leaves are recorded has no entry under his name.

Abdullah, a former chief minister of Jammu and Kashmir has been detained since the Centre announced its decision to read down Article 370 in Kashmir. On September 16, he was charged under the Public Safety Act, which allows for detention for up to two years without trial.

During this time, the Lok Sabha has been in session thrice. First, from June 17 to August 6. Then, from November 18 to December 13. And finally, from January 31 to February 11.

Naturally, Abdullah, who is placed under the most stringent of restrictions has not attended the second and third sessions and the final two days of the first session.

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

Rules dictate that members who do not sign the attendance register must apply for leave. Which is exactly what the Lok Sabha secretariat claims Abdullah did. In a reply which chiefly redirects the journalist who requested for the information to the official Lok Sabha portal of www.loksabha.nic.in, the house also refused to furnish copies of Abdullah’s leave application.

As noted by India Today, the reason cited was:

“Since the matter [his application for leave of absence] is under the consideration of the Committee on the Absence of Members from the Sittings of the House, the copy of his leave application cannot be provided to the applicant at this stage.”

The department also evaded the question as to whether the government has informed the lower house about the reason behind Abdullah’s absence.

The India Today report notes the news portal’s experience at the official website’s attendance page, to which it was directed by the RTI’s response.

As confirmed by The Wire, and noted by India Today, the page merely attests to the fact that Abdullah has been ‘absent’ on days it is known he missed parliament on. For the second and third sessions of the 17th Lok Sabha, Abdullah’s attendance sheet says ‘no records found’.

For the first session, in which the Jammu and Kashmir (Reorganisation) Bill, 2019, was moved and passed, Abdullah’s attendance is noted for 27 of the 37 days the parliament was in session.

In addition, India Today notes that there were five MPs in the list of leave applicants whose request has been granted. “Farooq Abdullah’s name is not one of them. One of the names is that of Atul Kumar Singh alias Atul Rai who applied for leave because of his detention in jail,” the news portal says.

In response to their question on how long a member may remain absent from the house, the Lok Sabha secretariat cited the constitution to say:

“If for a period of sixty days a member of either House of Parliament is without permission of the House absent from all meetings thereof, the House may declare his seat vacant. Provided that in computing the said period of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days.”

Abdullah, meanwhile, was named a member of the Standing Committee on Railways and Consultative Committee of the Ministry of Defence, in September, 2019. He was then, as he is now, under detention.

His prolonged absence from the parliament is often brought up by opposition during debates.

Union home minister Amit Shah, when the speaker had been asked as to where Abdullah was on August 6, 2019, claimed on the floor of the house that he had “neither been detained nor arrested”. He asserted Abdullah was at his home by his own will, a claim Abdullah disputed in a brief appearance before reporters in Srinagar the next day.

In Kashmir, the Justice System Is in Limbo

Even two months after the decision to dilute Article 370, Kashmiris are finding it hard to access courts.

A few days after repressive measures were imposed in Kashmir in the wake of the dilution of Article 370, a distraught woman banged on the doors of the home of Shopian-based lawyer Habeel Iqbal. She had just learnt her young son – detained in a police station – had been whisked away to a prison outside the state. In the absence of basic communication facilities – even landlines were not functioning – and severe restrictions on movement, it was not possible to help her access justice on that day.

Iqbal could only attend the Shopian district and sessions court 20 days after August 5 and found scarcely any activity there. He learnt that among the hundreds held in detention was someone from the legal fraternity in Shopian. Advocate Zubair Ahmad Bhatt and his father, a former MLA from the People’s Democratic Party, had been detained.

In September, child rights activists – alarmed by mass arrests, many of whom were underage – filed a petition in the Supreme Court expressing concern over the rights of Kashmiris to access the justice system. Hearing the petition, Chief Justice Ranjan Gogoi declared he was ready, if necessary, to go to Srinagar to ascertain the situation.

On October 3, nearly two months after the restrictions were imposed, I accompanied Iqbal to the J&K high court to try and gauge the impact of the lockdown on the judicial system and the consequent effect on people’s lives.

In the court’s complex, Rehana, a woman from Shopian, recognised Iqbal and approached him in visible distress. Despite the lack of public transport system, she had travelled to Srinagar to seek an update on the case slapped on her son Faisal Mir. He had been charged under the Public Safety Act (PSA) a year-and-half ago and she had learnt that his lawyer, Mian Abdul Qayoom, had himself been put behind bars.

Also Read: Kashmiri Lawyer, Who Encouraged People to Vote, Detained to Prevent Protests

Ironically, Qayoom, the longest serving president of the Bar Association of Kashmir, along with Nazir Ahmed Ronga, former president of the Bar and Abdul Salam Rather of Baramulla, District Bar Association, have all been charged under this same draconian PSA, labelled by Amnesty as “the lawless law”.

Nazir Ahmed Ronga. Photo: Facebook

The PSA permits the custody of a person for a period up to two years to prevent him or her from acting in any manner that is prejudicial to the security of the state or the maintenance of public order. Not only has the PSA been applied for decades with reckless abandon by the police, serial detention is also a common phenomenon in Kashmir. This means slapping fresh PSAs on a person almost immediately after a PSA order is quashed under a habeas corpus plea.

Faisal’s mother would now need to engage another lawyer to continue her struggle for his release. The process was trickier than usual because most members of the 1,050 strong Bar Association are on unofficial strike against the arrests of their office bearers. A notice on the board appealed to them to “abstain from work.” The Bar Association has, however, designated around seven lawyers of the high court to take up pending bail and PSA cases whenever victims’ families come to the court and also to take up and advise families of the additional 300-odd PSA detenues since August 5.

A lawyer, speaking on condition of anonymity, said many lawyers were now hesitant to handle “too many” PSA cases because they feared the state’s iron hand and vendetta politics. Many were also outraged at how Qayoom and others were treated. The state had tried to move an application staying an order that would allow Qayoom’s family members from meeting him in Agra jail. It is believed that the judge who had allowed this order to visit was removed from the roster and not given any further habeas corpus cases. (Eventually, the family was allowed to visit him.)

The hartal or unofficial strike has added to the logjam in the hearing of PSA cases. There is also a severe shortage of judges and only two have been hearing these cases. An estimated 500 habeas corpus cases are pending for 2019. Around 300 of them were filed after August 5.

Lawyer Shah Faisal, who has been assigned six PSA cases after August 5, says that one of the detenues is from Pampore. He owns a pharmacy and has been allegedly accused of selling drugs but that no First Information Reports (FIR) were filed under the Narcotics Drug and Psychotropic Substance Act or other sections of the Criminal Code. Instead, the police resorted to charging him under the PSA.

In another case, a youth from Nowhatta, Srinagar, has his age in the dossier shown as 26- years-old. But the detention order states: “You have a long history of having affiliated with various activities which are prejudicial to the maintenance of Public Order. In early nineties you remained affiliated with various subversive activities……(sic)”

Order of detention for a 26-year-old claiming he has been in subversive activities since the nineties. Photo: Freny Manecksha

Detention orders have to pass scrutiny by the district magistrate or divisional commissioner and such a glaring discrepancy only buttresses the suspicion that it has not undergone proper examination. A lawyer from Shopian says he wonders if district magistrates were even going to the courts.

Another advocate from Handwara, who stays just outside the main town, says that the heavy restrictions on movement for the first 20 days after the dilution of Article 370 would not have made it possible for people to leave their houses. He doubts if magistrates were in their proper stations and if remands were taken in the days after August 5.

Besides PSA and arrests, another significant case brought to the court after August 5 was that of a 32-year-old woman named Fehmeeda from Behmina who died on August 9 en route to Sher-e-Kashmir Institute of Medical Sciences. She had been cooking in her own home whilst clashes occurred in the neighbourhood. The heavy use of tear gas shells and pepper bombs caused a build-up of toxic gas that she inhaled. She died before she received medical treatment. Her medical certificate states she developed an allergy to toxic gas inhalation which was then followed by cardio-pulmonary arrest.

Also Read: Jammu Lawyers Go on Indefinite Strike to Protest Administrative Council’s Move

The state denied civilian protests and killings and the police refused to file an FIR. After her husband approached the courts, it is believed that the CJM then issued notices against the chief prosecution officer to file objections and to confirm the status of the case and whether an FIR was then lodged.

Detention of minors

Tracking down Mir Urfi, a criminal lawyer, who has been handling PSAs and many of the juvenile detention cases for some years, without a functioning mobile phone, was something of a challenge. But, at the entrance to the sessions and district court, helpful lawyers told me to simply head for a particular sofa in the corridor. She and other lawyers designated to help would, at some stage appear, to meet with clients’ families and others.

When she did appear a half-hour later, Urfi, who works in the office of noted PSA lawyer Mir Shafakat Hussain, said that in at least four cases after August 5, the state revoked the PSA after the family made an intervention through the court, stating the person was a minor.

Nusrat Sidiq of the Kashmir Reader reported how the detention order of a boy from Shopian district was revoked after an inquiry by the registrar judicial of the high court revealed that he was around 14 years old. The court of Justice Sanjeev Kumar had given the state one day to explain its position regarding the detention.

The family had sought intervention, through lawyer Mir Shafakat Hussain, charging police with illegal detention of the boy on August 9. He had been shifted to Srinagar’s Central Jail.

The dossier related to this case accused the 14-year-old of being a “hardcore Over Ground Worker” of the Hizbul militant organisation. It added that he harbours “deep hatred for the Indian union and law enforcement agencies.”

Section 107 deployed for preventive detention

Mir Urfi added that a new trend in the post-August 5 arrests was the increasing numbers being detained under Section 107 of the Criminal Procedure Code. This bit of legislation is a colonial hand-down often used to detain habitual offenders. It allows for preventive detention on the grounds of an executive magistrate receiving information that any person “is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of peace or disturb the public tranquillity.”

Proceedings under this section require the person to be taken before the executive magistrate or concerned tehsildar who will ask why show cause should not be ordered to execute a bond with or without sureties for keeping the peace for such period, not exceeding one year, as the magistrate thinks fit.

But, in many of the recent arrests, said Mir Urfi, the procedures requiring the person to be brought before the tehsildar or executive magistrate are omitted and the person remains in custody for as long as the police wish. Families are warned that if they insist on a bond, a PSA with its more stringent measures could be slapped on the person concerned.

Also Read: ‘In Kashmir, Army Relays Tortures on Loudspeakers, Slaps UAPA on Stone-Pelters’

Many people I spoke with in Habak, Srinagar and many parts of South Kashmir complained that such lawless practices furthered opportunities for extortion and corruption. One youth from Habak claimed that before Friday and its attendant protests, four or five youths would be picked up from the neighbourhood, asked to give names of some more youths and then released. The cost of each release, he alleged, was Rs 20,000. He referred to these arrests and releases as police gaining more customers.

Lawyers have revealed that in many cases the police have simply done no paperwork, making it difficult for the families and lawyers to access the court. Also, families were reluctant to go to lawyers over illegal detentions because of the fear psychosis. Threats have been issued that detenues will be sent away to faraway jails with the name of the Andaman Islands being thrown in, should families approach the law.

Jammu and Kashmir high court. Photo: PTI

Routine functioning disrupted

The restrictions on movement and phone and internet ban along with the lawyers’ hartal had seriously affected even the most routine functions of the court. In the early days, hardly anyone came to court. The few lawyers who did had to bring water and food from home. One lawyer in the high court joked, “I can’t even offer you a cup of tea unless I holler really loud from my window for a canteen staff to hear me.”

When cases started being heard, there were not sufficient police and staff to bring the under trials to court. Police who issue summons had been deployed elsewhere. Trials have been held up for over two months.

A lawyer in the high court explained how routine proceedings like serving notices were hampered because the postal services have been totally disrupted. Notices could not be served until the court passed an order saying delivery by hand was permissible. Another lawyer pointed out that there was no way of knowing whether he had missed a date as he could not even check online.

Initially, cases were adjourned but, a disturbing trend currently is the way many PSA cases were being dismissed on grounds of non-production of petitioners or lawyers.

One of the court orders in Urdu saying there could be no proceedings because of the halaat (condition) was later contested with the declaration that one could not say the halaat was not good!

Advocate Aquib Javaid from Shopian, who handles many Unlawful Activites (Prevention) Act (UAPA) cases found that five bail applications under TADA, POTA and UAPA had been dismissed on the day he did manage to get to court. The cases had lingered for so many years and are now further stymied he added.

Significantly, UAPA is increasingly being deployed in Kashmir. The manner in which unlawful activities are being defined is chilling. Javaid said in one case, the owner of an orchard where an encounter had raged in the winter months was accused of harbouring terrorists. He lives far away from the orchard and would not have known who was there when it was covered so deep in snow that nobody ventures out.

Mir Urfi also spoke of how boys had been arrested recently for celebrating the win of New Zealand over India in the cricket world cup. What message, she wondered, does that send out? That cheering for a match is “illegal”?

The paralysis of the court has seen many crucial issues pushed to the back burner. One of them is the usage of pellet guns and the Bar Association’s plea to ban it, dating back to 2016. The J&K high court rejected it through an interim order, saying the Centre had already constituted a committee of experts. The Bar then approached the Supreme Court, which on July 22 asked the J&K high court to decide within six weeks.

But with everything in limbo, there has been no progress and the pellet guns are being deployed with lethal intent as before. Many lawyers confided on condition of anonymity that with the dilution of Article 370, it was now a very difficult time to believe and practice the law.

One of them who did speak out was advocate Parvez Imroz, president of the Jammu and Kashmir Coalition of Civil Society, who has been in the human rights field for thirty years. He said it was one of the most trying periods for Kashmiris since 1931, the year when Kashmiris had risen in revolt against the Dogras.

Imroz said that whilst there had been turmoil in 2008, 2010 and 2016, it was different this time because the state did not even wait for people to respond to its action. It was a pre-emptive siege, planned and well executed. Intense fear psychosis was created by the huge number of armed troops and the institutionalised manner in which it was caused. Whilst a small section of Indian civil society had lent their voices to the Kashmiris and dared to speak the truth, the state was keeping up a façade that everything was stable. But there was simmering discontent and one cannot say what shape it will take.

This government, he added, had quoted the Newtonian law in defence of the Gujarat violence but seemed to be convinced that in Kashmir, they can change the law of physics. However, there is bound to be a Bastille Day in Kashmir in the days to come, Imroz said.

Freny Manecksha is an independent journalist from Mumbai who is interested in human rights and development issues.

Farooq Abdullah Detention: The Supreme Court Is Also on Trial

It remains to be seen if the court will uphold the fundamental right to life and liberty.

The most important case in India today is not the Babri Masjid-Ram Mandir dispute but the trial of the Supreme Court by the people of India. And a litmus test in this trial will be the court’s behaviour in the case against the detention of Farooq Abdullah under the draconian J&K Public Safety Act.

The Supreme Court was created by the Constitution of India on January 26, 1950. A few months after the promulgation of the Constitution, a constitution bench of the apex court held in Romesh Thappar vs State of Madras that “the Supreme Court is constituted as the protector and guardian of the fundamental rights of the people.”

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

This view has been reiterated in several subsequent decisions of the court, for example in the nine-judge bench decision in I.R.Coelho vs State of Tamil Nadu.

The most precious of all the fundamental rights is the right to life and liberty, enshrined in Article 21. In Md Sukur Ali vs State of Assam the Supreme Court observed:

“This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the ‘heart and soul’ of the fundamental rights.”

Article 21 was enshrined in the Constitution because the founding fathers were themselves freedom fighters who had seen the civil liberties of our people trampled under foreign rule. They had also been incarcerated for long periods under the formula ‘No vakeel, no daleel, no appeal’. Hence they were determined that such arbitrariness does not recur in free India.

Former J&K chief minister. Photo: PTI

Emergency erodes top court’s duty

However, during the Emergency of 1975-77, arbitrary arrests became the order the day. Instead of declaring them illegal, the Supreme Court abandoned its solemn duty under the Constitution by rendering the disgraceful ADM Jabalpur vs Shivkant Shukla judgment holding that a citizen had no right to life and liberty once Emergency is declared. In other words, in an Emergency, citizens could be shot or jailed without trial by the executive with impunity.

In recent days too, when fascist tendencies have emerged again, the performance of the Supreme Court and many high courts have been disappointing. For instance, bail was denied by the Supreme Court to Abhijit Iyer-Mitra who tweeted satirically about the Konark temple (for which he had soon apologised). This refusal was against the settled principles for granting bail laid down by the celebrated Justice Krishna Iyer in State of Rajasthan vs Balchand. While rejecting bail, CJI Ranjan Gogoi made a flippant and cruel remark, least expected of the pater familias of the judiciary, that if the petitioner ‘is facing threats, there is no better place than jail’.

We may contrast this with the observation of the distinguished judge of England, Lord Denning, who in Ghani vs Jones (1970), observed:

“A man’s liberty of movement is regarded so highly by the laws of England that it is not to be hindered or prevented except on the surest ground.”

Lord Denning’s decision was approved by the seven-judge constitution bench of the Indian Supreme Court in Maneka Gandhi vs Union of India (1978), and hence became the law of the land in India also.

In the case relating to the Bhima Koregaon accused (Romila Thapar vs Union of India) the Supreme Court should have quashed the entire prosecution, relying on the Brandenburg test, observing that there was no danger of any imminent lawless action by the acts of the accused, even if the allegations against them are assumed to be true (though they appear to be on the basis of manufactured evidence).

Freedom of expression

Coming to the arrest of Farooq Abdullah under the draconian Public Safety Act, the grounds given are that he incited violence. This is manifestly absurd, and the Supreme Court should forthwith quash the order of the government applying the Brandenburg test, which was followed by two decisions of the court viz Sri Indra Das vs State of Assam and Arup Bhuyan vs State of Assam.

Also Read: Pune Police Should Remember, SC Has Already Rejected Doctrine of ‘Guilt by Association’

Farooq Abdullah’s record has always been that of an ardent Indian nationalist and he was never a secessionist. But he was deeply upset by the revocation of Article 370, which gave a special status to Jammu and Kashmir. Even assuming he wanted azaadi for Kashmir, this is no crime. Many people such as Khalistanis, many Kashmiris, some Naga groups demand azaadi, and this demand is protected by the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution.

It is only if one goes beyond that and commits violence or incites imminent violence that it becomes a crime. There is nothing to show that Farooq Abdullah’s statement incited imminent violence.

Kashmiri girls shout slogans as they attend a protest against scrapping of the special constitutional status for Kashmir. Photo: REUTERS/Adnan Abidi

The J&K Public Safety Act, which permits detention up to two years without trial, has been declared ‘a lawless law ‘ by Amnesty International. It is similar to the Rowlatt Bill of 1919, against which Srinivas Shastri said these memorable words in the Imperial legislative assembly:

“When the government undertakes a repressive policy the innocent are not safe. Men like me would not be considered innocent. The innocent then is he who forswears politics, who takes no part in the public movements of the time, who retires into his house, mumbles his prayers, and salaams the government officials all around. The man who interferes in politics, who addresses public meetings, becomes suspect. Possession in the hands of the Executive of powers of this drastic nature will not hurt the wicked alone, it will also hurt the good, and there will be such a lowering of public spirit that all talk of responsible government will be a mere mockery. Much better that a few rascals should walk abroad than that the honest man should be obliged for fear of such a law to remain shut up in his house, to refrain from activities which it is in his nature to indulge in, to abstain from all political and public work, merely because there is a dreadful law in the land.”

These are times that try men’s souls, to use Thomas Paine’s words, and especially will they try the souls of our judiciary. If the judiciary fails in its duty to uphold civil liberties of citizens provided in the Constitution, as it did during the Emergency, then it will be said of it by the people of India, “Thou art weighed in the balance, and found wanting” (a passage from the Bible which was used by Winston Churchill to describe the Neville Chamberlain government on October 5, 1938 after the signing of the shameful Munich Pact with Adolf Hitler).

Markandey Katju is a former judge of the Supreme Court of India.