Late one night in the summer of 1978, the high-noon of the resurrection of Indian democracy after the Emergency, police dragged Ghulam Nabi Patel from his home in Srinagar's Batamaloo into the bowels of the city's central jail. The strange thing was that even the government never claimed the bus driver, a vocal opponent chief minister Sheikh Muhammad Abdullah, had committed a crime. He was, however, to spend months in prison, incarcerated as an enemy of the State.
Patel's ghost might be forgiven then wry chuckle at the incarceration, on Monday, of chief minister Farooq Abdullah, Sheikh Abdullah's son-the latest of the thousands who've been hurt by Kashmir's Public Safety Act. No one else ought be smiling.
Last month, when Prime Minister Narendra Modi's government de-operationalised Article 370 in the Valley, it promised to build a new kind of Kashmir, built on the rule of law. The actions it's taking, though, will set in concrete the dystopia the prime minister hopes to dismantle.
Legislated in 1978 by Sheikh Abdullah, the Public Safety Act (PSA) allows the Jammu and Kashmir government to detain, without trial, "persons acting in any manner prejudicial to the security of the State" for up to two years. In addition, it allows detention for up to one year where "any person is acting in any manner prejudicial to the maintenance of public order". The detention order has to be signed by a divisional commissioner or district magistrate-not a judge.
Government of Kashmir said that the Act was meant to fight organised crime cartels, engaged in activities like timber-smuggling, but it never explained why proper police investigation, and trials in courts, couldn't meet that end.
In reality, the PSA had everything to do with politics and not justice.
The 1977 elections in Jammu and Kashmir saw the Janata Party ally with the Islamist-leaning Jama'at-e-Islami, posing the first credible political threat to the National Conference's hegemony. Sheikh Abdullah hit back with an incendiary campaign, playing on the Kashmir Valley's communal anxieties.
In one speech, he accused the Jama'at of allying with "those whose hands were still red with the blood of Muslims". National Conference leaders began administering oaths to their cadre on the Quran and a piece of rock salt — a popular symbol of Pakistan. Abdullah's lieutenant, Mirza Afzal Beg, promised voters he would open the Srinagar-Muzaffarabad road to traffic.
The campaign paid off — even though the National Conference was decimated in the Hindu-majority constituencies of Jammu, it won all 42 seats in Kashmir. Sheikh Abdullah, though, was determined not to allow he resistance to recover. Patel was just one of hundreds of Jama'at activists arrested by the government under the PSA.
Following the rise of the long jihad in Kashmir, the state's regular instruments of criminal justice disappeared-and the PSA became a favoured tool. Though no official statistics have been published, Amnesty International estimates that there have been some 20,000 arrests under the Act since 1978.
Through March, 2016 to August, 2017 — the period of the large-scale uprising sparked off by the killing of jihadist icon Burhan Wani — there were over 1,000 arrests under the PSA, researchers Ayjaz Wani and Dhaval Desai have recorded.
Even though the courts regularly stepped in-quashing 1,706 detention orders between 2008 and 2017, 215 in 2016 alone-authorities often ran a kind of incarceration perpetual-motion machine, rearresting individuals on fresh warrants as soon as they were released.
In 2017, Right to Information (RTI) request revealed that the state government, even after four decades of the PSA beinbg enacted, had framed rules for its execution, meaning government officials were essentially free to do as they wished.
The standard argument given for persisting with the PSA is that extraordinary times need extraordinary measures: but that argument just doesn't stand up to scrutiny.
History of PSA teaches us this: it doesn't work. Far from crushing dissent, the use of the Act by Sheikh Abdullah gave the religious right legitimacy and social capital. In the build-up to the 1987 elections, the right had coalesced into the Muslim United Front-whose leaders, clad in the white robes of the pious, publicly declared that Islam could not survive under the authority of a secular state.
Large swathes of the early jihadist leadership turned to terrorism after bitter experience with the PSA led them to conclude India's democracy wouldn't allow them to participate in the democratic process. The Hizb-ul-Mujahideen's chief, Muhammad Yusuf Shah, was repeatedly incarcerated under the PSA, after the rigged elections of 1987.
Scholar Prem Nath Bazaz noted that Abdullah's use of the PSA led young Kashmiris to conclude that "it had thwarted their progress and deprived them of several political and human rights enjoyed by all the other Indians".
In practice, thus, the PSA has served only to undermine the the credibility of the State. Armed with the power to put secessionists and terrorists in prison without trial, police lost incentives to gather evidence and build credible prosecution cases-in turn, allowing the Indian State's opponents to wear the halo of martyrdom.
Each year, India has had to repatriate Pakistani terrorists, because investigators haven't troubled themselves to find evidence — a consequence of the culture the PSA has engendered. Muhammad Suhail Malik and Waseem Ahmad, alleged to have participated in the killing of 36 Sikhs in the south Kashmir village of Chattisinghpora in 2000, were acquitted. Nasrullah Mansoor 'Langriyal', the jihad commander who co-founded the Harkat-ul-Jihad-e-Islami, and claimed responsibility for dozens of terrorist attacks, was never convicted of murder.
Leaders of Kashmir's political system recognised this, but when they were out of office. Former chief minister Mehbooba Mufti called the PSA a "black spot against democracy" — only to use it against secessionists like Syed Ali Shah Geelani, Massrat Alam, and Yasin Malik. Former chief minister Omar Abdullah, in turn, used the same measures — only to promise to remove the Act, if re-elected.
Faced with public ire against their actions, both politicians swung the other way granting amnesties thousands of rioters arrested after the uprisings of 2010, 2012 and 2016. Put simply, the process of criminal justice was released to a political whim.
Modi has a real opportunity to break this dysfunctional narrative. It's entirely possible, as Union Home Minister Amit Shah has argued, that Kashmir's political system is inhabited by kleptocrats, who have made their way into office with no credentials bar the genes. The answer to that, though, are criminal law prosecutions which expose their malpractices and not detentions under a law even Supreme Court judges DA Desai and PN Bhagwati called a "lawless law".
Elsewhere in India as well, Indians should be concerned about preventive detention laws, like the National Security Act — first introduced through the Rowlatt Acts of 1919 , to crush the Independence movement. It is now being used against everyone from alleged cattle-killers, to a journalist who lampooned a chief minister. In comparison with the PSA, the NSA is gentler, but its potential is becoming clear.
The only credible reason for Farooq Abdullah being held under the PSA is the government couldn't tell the Supreme Court his arrest had no legal foundation: indeed, Shah told Parliament he wasn't under arrest at all. It's entirely possible the former chief minister isn't too dismayed: under house arrest, he is free of the brutal political dilemmas that await the National Conference and other parties. But that isn't, and should't, be the point.
For generations, India failed to uphold its own constitutional values in Kashmir, a process which proved a greater threat than any number of Pakistani jihadists. The moral compass the government used to plot Farooq Abdullah's incarceration points back into that dystopia. The government needs a new one.
Updated Date: Sep 16, 2019 20:08:38 IST