Illustration by Suhail Naqshbandi/ KI
The making and unmaking of the Dangerous Individual in Kashmir
On 11th September 2016, Indian Home Minister Rajnath Singh announced the launch of ‘Operation Calm Down’, initiating policing operations against ‘motivators’ and ‘instigators’ of street protests and the general strike (hartal) demanding freedom from India’s occupation of Kashmir. His statement inaugurated a transition in the state’s response from shooting to kill and maim protestors, to a period of nocturnal raids, searches and cordons, mass arrests, and illegal and incommunicado detentions, particularly under the Public Safety Act, 1978 (PSA). PSA or the ‘Act’ as it is often referred to in Kashmir, is a preventive detention law that allows for the jailing of individuals through executive fiat by administrative officials, rather than by judges following a judicial process or trial.
The preventive detention of political prisoners under the Act is by far the most well-known and documented aspect of its operations; in fact, it defines and proscribes three different kinds of dangers to ‘public safety’: dangerous places, dangerous ideas and documents, and dangerous individuals. Sections 3 and 4 deal with ‘Protected’ and ‘Prohibited’ place, which provide for penalties of imprisonment without trial for a period of three months and six months respectively, for unauthorized persons entering into or ‘loitering’ in notified areas. Section 6 empowers the state to prohibit the entry and circulation within the state of Jammu and Kashmir of any document ‘likely to affect the public order’, while Section 8 deals with the detention of ‘certain individuals’.
Under the Act individuals can be (amongst other grounds, such as timber smuggling) held on the basis of an official apprehension that they constitute a danger ‘to public safety’, which is defined as being a threat to national security or public order. This means there is no requirement for a complaint or suspicion of a crime having been committed by them, no police investigations, no charges or indictment listing what they are accused of, no possibility of bail and no trial in a court of law in which they may defend oneself before serving time. In short, not even the most minimal requirements of the rule of law, such as a burden of proof, or a judicial determination of guilt based on evidence, need be complied with. Like Josef K in Kafka’s The Trial, a detenu under the Act need not be informed of what manner of crime they are charged with, nor the terms of their imprisonment. In some cases, the vaguest of grounds of detention, as framed by an administrative official rather than a judge, usually copied from a secret police or intelligence ‘dossier’ (not disclosed to the detenu), is provided, but the law says that this may be done after 5 days from when detention begins, and not all facts need be mentioned in the interests of – you guessed it – the ‘public’. Unlike internment of ‘enemy aliens’ (e.g. Japanese nationals in WW II era United States) or political ‘subversives’ (e.g. IRA activists and sympathizers in Northern Ireland during the ‘troubles’), the mass incarceration of detenues under the Act in Kashmir takes place not in internment camps or specially designated compounds, which allow certain greater freedoms to political prisoners, but in any specified place which are most often the regular jails and sub jails that house ordinary criminals.
Kashmir is often referred to as one of the ‘most dangerous places in the world’, given that it is the world’s most militarized conflict zone, but it is a particularly dangerous place for those who dispute its forcible incorporation into the Indian republic. These include all persons who contest or are perceived to contest Indian control over their lives – whether it is human rights activists like Khurram Parvez, whose work throws light on the violent means India uses to maintain its sovereignty over Kashmiri bodies, land and ideas, or a ‘stone pelter’, who throws stones at the armed men who enforce Indian rule, or a funeral goer who publically mourns the death of a militant and refuses the Indian state’s characterization of them as terrorist, instead celebrating them as a martyr. Estimates of the numbers of persons detained under the Act over the past two decades range from 8,000-20,000, according to Amnesty International. The huge disparity in numbers is because preventive detention is particularly susceptible to being unrecorded and undisclosed. According to official estimates, more than 500 persons have been held without charges under the Act this summer, while the total number arrested including under preventive detention under the regular criminal law and other criminal provisions is 9000.
Broadly three kinds of people are, and have historically been, imprisoned under the Act. The first is individuals whose detention is purely political, based on thought and speech crimes, rather than any unlawful or violent act. These include political activists, trade association and trade union leaders, journalists, human rights advocates, lawyers and religious leaders, who command large popular followings and voice support for Kashmir’s struggle for self-determination. In such cases, as the PSA order in the case of Masarat Alam, a political leader of the Muslim League held under PSA since 2010, states, the state sees ‘preventive detention [as a] very effective tool against the persons having potential, will, commitment and urge to challenge the integrity and sovereignty of the state.’
The second class of dangerous individuals targeted by the Act, are persons such as ex-militants, or ‘stone pelters’ (protestors who target armed forces personnel with brickbats), who are suspected to be involved in unlawful or criminal acts, but who the state choses to simply keep ‘out of circulation’ through repeated and consecutive preventive detention orders, rather than by prosecution in a court of law. Amnesty International has found that the preventive detention system in Kashmir operates as a parallel to the criminal justice system, and is routinely used to bypass the ordinary criminal law. Their report, A Lawless Law (2011), states: “The rate of conviction for possession of unlawful weapons – one of the most common charges brought against alleged supporters or members of armed groups – is 0.5 per 100 cases: over 130 times lower than the national average in India. Similarly the conviction rate for attempt to murder in J&K is eight times lower than the national average, seven times lower for rioting and five times lower for arson. In contrast, the number of persons in administrative detention without trial in J&K is 14 times higher than the national average – a possible result of the monthly/quarterly ‘targets’ or quotas of detentions apparently followed by the J&K police.”
In such cases, an ex-militant or stone pelter, who has already faced criminal prosecution and been acquitted, served his sentence, or been set free on bail, is illegally detained in police custody without being released despite court orders, whilst a new PSA order is prepared and served, continuing his incarceration. Often after an illegal PSA order is quashed by the High Court, the ‘dangerous’ individual is directly transported to the local Joint Interrogation Centre (JIC, run collectively by police, paramilitary, military, and intelligence services), held illegally without charges or on a pending ‘open’ FIR and then re-arrested on fresh PSA orders, and sent right back to his prison cell – all without ever having an opportunity to breathe as a free man, much less threaten the public order. One such PSA order I saw served on a militant facing criminal trial and lawfully enlarged on bail by the trial court makes no bones about the role of PSA in extra legal detentions. It states, “You are presently under police custody on remand. However, there is every apprehension that you may get yourself released on bail. Normal laws are not sufficient to deter you from your antinational activities.”
The third large class of detenues comprise of children illegally held under the Act, despite a legislative amendment in 2012, which specifically disallows the detention of juveniles. The police simply arrest and impose the Act on minors, shifting them to faraway jails where they are housed with adult prisoners, placing the onus on parents to prove in court that they are, in fact, below 18 years of age. This process of demonstrating their minority, using school documents and birth certificates, sometimes results in a High Court-ordered release before the lapse of the detention order of three months. But more often than not, children must serve out their full sentences, even as their parents battle judicial delays and court dates. In a case with which I am familiar, a young Baramulla boy of 16 was arrested under the Act, and sent to the Kot Bhalwal jail in Jammu. His transfer to the juvenile home at Srinagar was secured after three weeks of detention. Even before his father could serve the jail with a notice of the High Court Order of transfer, his father himself was arrested! The family was reluctant to take any legal step, as they feared that doing so would only precipitate the police into imposing the ‘Act’ and that an illegal arrest and confinement in the local police station was preferable to a formal arrest and imprisonment in a jail 300 kms away in Jammu. He remained in illegal custody of the local police for 19 days before a PSA case was finally filed against him. During his time in custody, the police demanded that his second son, also a juvenile and also accused of being a ‘stone pelter’, be produced before them. Unsurprisingly, the boy went on the run and continues to be in hiding.
The Act is an example of how the law is a weapon of collective state violence: both of targeted assaults and low-grade continuous warfare. The modus operandi of preventive detention in Kashmir often begins with the use of ‘open FIRs’ police complaints, usually of incidents of rioting or violent protests, which mention no names or particulars of the persons involved. These ‘open FIRs’ are routinely mentioned in police dossiers, along with other unsourced intelligence information, against individuals who the state seeks to preventively detain. There is no legal requirement to show the actual occurrence of the crime, or even that the detenu was present when the crime was supposed to have occurred. The legal process is thus entirely based in the shadowy world of police and intelligence agency’s perceived threats, apprehensions, profiling and paranoias, evidenced through the vaguest and most unsubstantiated of insinuations, absent documents, and incomplete dossiers.
The administrative orders passed on the basis of these inputs rarely stand up to judicial scrutiny; indeed, they are scarcely intended to. The only remedy against a PSA order is a habeas corpus challenge in the High Court. Every single PSA order that I have researched has been quashed, because it was prima facie illegal, and did not comply with even the minimal standards of showing an application of mind on the part of the detaining official. The government seems barely interested in defending the detention orders it passes, and frequently fails to file any response to challenges to detention orders, despite repeated court adjournments. The judicial process takes three to four months, in which time the original detention order (of three months) automatically lapses, the detenue having served out their term of imprisonment. In many cases, the detention order is not extended; if it is, a fresh challenge must be filed, and the process begins again. Sometimes, in high profile cases, such as the case of the Bar Association President, Miyan Qayoom, in 2010, the state retracts its original flawed order on the verge of it being quashed in court, and files a fresh one, setting the clock back again to day 1 of the detention. Masarat Alam has had 36 such PSA orders either judicially quashed or retracted or fully served. 7 years since he was first preventively detained, he continues to remain incarcerated without criminal charges or trial.
PSA thus allows for the creation of a complete, complex, self enclosed, and socialized carceral system – a system of collective, indefinite punitive containment with no exit, where the process is quite literally the punishment. The state creates a political buffer zone, coercing and blackmailing families and the recalcitrant and striking population to actively engage with its institutions – the local extortionate police official, the distant bureaucrat, the obdurate jailer. A direct legal challenge, such as the filing of habeas corpus against an illegal and unrecorded detention, is made grounds for imposing and threatening more severe punishment (for instance, a detention order on state security grounds which carries a six month detention), forcing families to remain in a legal limbo, at the mercy of state functionaries. The six month long hartal (general strike) is broken as petitioning families travel to and gather outside police sub-division and secretariat, the lines outside the district collectorate and High Court grow longer, and the numbers of boys on the run increase with every passing day.
As winter sets in, Kashmir’s summer of violence is again beginning to fade away from the headlines and our memories. It appears that only when Kashmir burns – when there is a revolt and vicious extraordinary public repression – do we think it worthy of our attention. But it is in the everyday minutiae of apparently routine, legal, bureaucratic operations, through laws such as the Public Safety Act, that the normalization of a permanent condition of crisis and danger to the state, that the ‘dangerousness’ of Kashmir is made and unmade.
Shrimoyee Nandini Ghosh is a human rights lawyer and researcher based in Srinagar, Jammu and Kashmir. She tweets @shrimoyee_n. This piece is partially based on a public lecture titled, ‘Dissent in Dangerous Times’ that she delivered on 3 December 2016, in Chennai. The piece first appeared on Café Dissensus magazine. https://cafedissensus.com/