The government seems to have abandoned the pretence that the detention of political leaders in Jammu and Kashmir is about law and order.
Last month, Union Home Minister Amit Shah categorically denied that Farooq Abdullah, former chief minister of Jammu and Kashmir, National Conference leader and member of Parliament Farooq from Srinagar, was under house arrest. The pretence wore thin last week, when Hasnain Masoodi, also a member of Parliament from the National Conference, had to seek the Supreme Court’s permission to meet Farooq Abdullah and his son, Omar Abdullah. The court allowed the meeting but instructed him not to speak to the press about it.
On September 15, the pretence was banished altogether. A day before the Supreme Court was to hear a habeas corpus petition against Farooq Abdullah’s detention, the government invoked the Jammu and Kashmir Public Safety Act – a preventive detention law – against him. His house on Srinagar’s Gupkar Road was declared a subsidiary jail.
It is to be noted that Prime Minister Narendra Modi had met both the Abdullahs on August 1. But since August 5, when the Centre scrapped the special status accorded to Jammu and Kashmir under Article 370 of the Constitution and divided the state into two Union Territories, almost the entire regional leadership has been incarcerated. While separatist factions in the Valley were locked away long before that, the Centre also turned on the political leaders who participate in Indian elections. Presumably, it feared mass protests of the kind seen in 2008, 2010 and 2016. But why exactly is the ageing, ailing Farooq Abdullah now deemed a threat to public order or national security, the reasons most commonly invoked for detaining individuals under the Public Safety Act?
Fortuitously for the government, it may not have to explain why. The preventive detention law was enacted in 1978, during the tenure of Sheikh Abdullah, Farooq Abdullah’s father, ostensibly to crack down on timber smugglers. As the struggle for “azadi” gained pace in Kashmir, it was increasingly used to keep separatist leaders and other voices of dissent out of circulation.
The Supreme Court famously called it a “lawless law”. It empowers the government to detain people it considers a threat. The authorities are not required to provide grounds for detention until after five to 10 days of a person being held. Even then, they might withhold the reason if they decide it is “against the public interest”.
While the law gives the government carte blanche in deciding who should be detained and why, it virtually sections off the whole process from independent judicial scrutiny. Within four weeks, the detainee must be presented for review before a state-appointed advisory board, whose members may be or are qualified to be judges of the high court. The composition of the board is usually not made public. The detainee has no recourse to legal counsel at this point.
Those held for the maintenance of public order can be detained for three months, which may be extended to a year. For national security, it could be six months, extendable to two years. The court may quash detentions, but the concerned authorities can issue fresh orders. Since 1990, separatist leader Masarat Alam Bhat has spent at least 20 years in jail under 37 separate Public Safety Act orders without being convicted of any crime.
An autocratic law has now been put to the service of an autocratic decision. Since August 5, the law has been invoked against an untold number of people – unofficial figures given out by government functionaries have varied between 290 and 4,500 detentions. Even those are believed to be conservative estimates. The detained include politicians, lawyers, businessmen, the chairman of the Kashmir Bar Association and members of the Kashmir Chamber of Commerce. Not many of them would have been mobilisers of mass protest or violence, or in cahoots with Pakistan, as the government frequently insinuates.
Farooq Abdullah’s detention, without even an attempt to account for it, suggests public order or national security was not the prime concern anyway. But far from projecting strength, it betrays a jumpiness on the government’s part – a unilateral decision, taken in stealth and without consulting the people whom it concerns the most, is not designed to withstand dissent.