Wednesday marked the 80th day of the communication blockade in Jammu and Kashmir, and while postpaid mobile services have been restored, internet and prepaid services are still non-functional in the restive region.
Since the 5th of August, the number of people arrested in Kashmir remains a mystery. The government has refused to release a definite number, but Khurram Pervez of the Jammu Kashmir Coalition of Civil Society estimated that the number of arrests during the period of imposed restriction is around 5,000 to 6,000.
Many of those detained or arrested have been released eventually but before they are released, they are asked to sign a peculiar 'bond', a first of its kind. Muzaffar Raina, a journalist with the Telegraph wrote about this on 20 October, and shared copies of this new bond. In addition to this bond, he also mentions that the local police are forcing people to sign a 'community bond', wherein more than 20 people are made to sign as sureties to secure the release of one person.
He cites the case of a 9-year-old minor in whose case the same was followed after the minor was kept in custody for two days.
The purpose of the bond in question is to ensure that those are released do “not make any comment(s) or issue statement(s) or make public speech(s) hold or participate in public assembly(ies) related to recent events in the state of Jammu and Kashmir, at the present time, since it has the potential of endangering the peace and tranquillity and law and order in the state or any part thereof for a period of one year”.
Many politicians who were under preventive detention were released after they signed the document. A copy of this bond states that it is executed under Section 107 read with Section 117.
For the uninitiated, Section 107 of the Code of Criminal Procedure (CrPC) is a provision that is used to detain people preventively — that is, if and when there is an apprehension that this person might do something to disrupt public peace and order.
Multiple courts of law have held that this is not a provision to arrest as the executive magistrate doesn't have the power to direct the police to arrest anybody. But it has also emerged that many are arrested under this law. To make it simpler, Section 107 of the CrPC grants an executive magistrate the power to detain any individual for not more than a year on information that a person is likely to disturb the peace and public tranquility.
Additionally, Section 107 of CrPC Samvat 1989, which is a different procedural code applicable to the State of Jammu and Kashmir retains the core of this section but broadens the ambit of it. In J and K, such a bond can be executed by a district magistrate, sub-divisional magistrate or executive magistrate. Even a magistrate who doesn't have the power to detain under sub-section 1, can issue a warrant for arrest citing reasons under sub-section 3 and send the arrested to a magistrate who has powers under sub-section 1.
Meanwhile, Section 117 of the CrPC Samvat of Jammu and Kashmir, pertaining to the inquiry which needs to be conducted against the section 107 detainment, provides wider powers to a magistrate than the CrPC which is applicable in the rest of India.
Sub-section 3 details the process; It says, "The Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquility or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person who has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded."
To sum up, if X, from let's say Pulawama in Kashmir, has been detained because the administration says that X is likely to disrupt public order and peace, X will have to sign this bond to be released.
Now in the case of this bond, not speaking about what's happening in Kashmir for a period of one year is considered as a pre-requisite for release. Essentially X, after signing this bond, can't open their mouth about anything till the inquiry about why he was detained in the first place is completed. If they speak, they have to bear the consequences, which can be forfeiture of the money paid or even arrest.
That was about the law. Now, in this episode of Firstpost's podcast, Voices from the lockdown, Greeshma Kuthar discusses the particulars of this strange new bond with Muzaffar Raina.
Updated Date: Oct 23, 2019 12:55:56 IST