On August 8, this was how Prime Minister Narendra Modi justified the decision to strip Jammu and Kashmir of special status and downgrade it from state to Union Territory: it would bring the rights and privileges enjoyed by people in the rest of the country to the region. It was not right that one region should be left out of the purview of nationwide laws, Modi had argued.
Six months later, three former chief ministers of the former state remained detained under the Public Safety Act, a draconian preventive detention law specific to Jammu and Kashmir. If the Centre meant to bestow Kashmir with more democratic rights, it has been curiously selective.
On February 6, the law was invoked against Omar Abullah and Mehbooba Mufti, both detained for over six months. It has already been invoked against the octogenarian Farooq Abdullah. Apart from the former chief ministers, People’s Democratic Party leader Sartaj Madni and the National Conference’s Ali Mohammad Sagar have also been detained under the law.
The dossier on Madni’s detention cites his role in mobilising protests against the alleged Shopian rape and murder of 2009. Sagar’s mobilising skills are noted, too. He had managed to get people to vote at the peak of militancy in the 1990s, the dossier reportedly notes.
‘A lawless law’
Famously called “a lawless law” by the Supreme Court, the Public Safety Act seems to take inspiration from preventive detention provisions used in Ireland during the civil war in 1923 or the apartheid regime in South Africa. Some trace its origins to the Defence of India Act passed by the colonial government in 1915 to curb dissent.
The law grants the local authorities sweeping powers to detain a person to prevent him from “acting in a manner prejudicial to… the security of the state or the maintenance of public order”. The actions believed to be threatening public order or national security are varied and vaguely defined. Those held in the interests of “maintaining public order” may be detained for three months, although the detention orders can be extended for up to a year. For national security, a detention order valid for six months may be renewed for up to two years.
This is detention without trial and minimum judicial oversight – the courts have often quashed detention orders, only for the administration to issue a fresh order. The authorities are not required to provide grounds for detention for five to 10 days after the prisoner is held. They may not disclose them at all if it is felt to be against public interest.
A state of exception
The detention of the Abdullahs under the Public Safety Act is a curious twist of history. The law was passed in 1978, ostensibly to crack down on timber smugglers, by a state government led by Sheikh Abdullah, who founded the National Conference and a political dynasty that would rule Kashmir for decades.
Over the years, it has been used indiscriminately to quell dissent, invoked most frequently against separatist leaders and protesting teenagers. Despite an amendment in 2012, prohibiting the use of the law against teenagers aged under 18, boys as young as 14 and 16 have been detained over the past few months. According to a report by the Jammu and Kashmir Coalition for Civil Society, 662 people were detained under the law in 2019, with 412 after August 5, when the Centre scrapped special status, placing Jammu and Kashmir under lockdown.
Over four decades, the Public Safety Act helped the Muftis and the Abdullahs, the two main political dynasties in Kashmir, keep a tenuous grip on power even as separatist sentiments ran high. The law became the mark of a damaged polity, a symptom of democratic rights receding in Kashmir.
As Modi made a case for removing special status, he promised the end of dynastic rule and democratic nationwide laws. Apparently to further these admirable goals, the Centre stripped Jammu and Kashmir of its constitution which flowed from the state’s special status. Yet, the Jammu and Kashmir Reorganisation Act, which detailed the administrative changes to be effected in the former state, retains 166 laws from the old state constitution.
The Public Safety Act is one of them. There are other Central laws for preventive detention in India: the National Security Act, for instance, and the Unlawful Activities (Prevention) Act, recently amended to make it even more arbitrary and broad-based. But the Public Safety Act remains peculiar to the former state of Jammu and Kashmir. Even after Delhi moved in, Kashmir remains in a state of exception.