At a time when civil liberties have steadily been eroded by the executive in Kashmir, a troubling abdication by the Jammu and Kashmir High Court. On February 7, it dismissed an appeal against preventive detention under the Public Safety Act, a draconian law specific to Jammu and Kashmir. The court remarked that detentions under the law were based on “suspicion or anticipation and not on proof”. The “subjective satisfaction” of the detaining authority could not be “open to objective assessment by the court”, it added.

Creating ‘radicals’

The Public Safety Act gives the local administration sweeping powers of preventive detention in the interests “national security” or the “maintenance of public order”. Actions that qualify as threats to security or public order are vaguely defined. Recent dossiers on the detention of Kashmiri political leaders reflect just how arbitrarily the law has been used. The dossiers on former Jammu and Kashmir chief minister Omar Abdullah and National Conference leader Ali Mohammad Sagar, for instance, mention that they were able to get voters out despite militancy and election boycotts. In other words, the two leaders have been locked up for being successful politicians working within the Indian electoral system.

Former chief minister and People’s Democratic Party leader Mehbooba Mufti’s dossier descends into personal slurs – a “daddy’s girl”, who had risen through the ranks because of her lineage, a “hot-headed and scheming person, known for dangerous and insidious machinations”. She is branded as “Kota Rani”, the medieval Kashmiri queen who poisoned her opponents, according to the astute historians compiling the dossier. Mufti’s refusal to sign a bond stating that she will not protest against the revocation of special status under Article 370 is also cited as a reason for detaining her under the Public Safety Act. Her tweets on lynchings, the banning of triple talaq and curbs on civilian movement after the Pulwama attack are also grounds for detention.

A range of ideas, symbols and actions are branded as “radical”: the green of the People’s Democratic Party’s flag, the pen and inkpot symbol it apparently borrowed from the Muslim United Front, a political conglomeration that emerged in the 1980s, Abdullah’s opposition to the removal of special status of Jammu and Kashmir under Article 370 and the revocation of Article 35A. All dissent seems to be filed away as politics with dangerous motivations, underpinned by hardline religious ideologies.

No judicial checks

The latest round of detentions caps off a long history of using the Public Safety Act to choke political dissent. From these obvious excesses of the executive, the court now threatens to remove protection. The Public Safety Act has few provisions for judicial review. Those detained for threatening public order may be held for up to a year, and for national security for up to two years without trial. Detentions may be reviewed by an “advisory board” appointed by government, consisting of former or serving judges of the high court, or persons qualified to be judges of the high court. The workings of the board are opaque and the detainee has no legal representation before them. Human rights reports and right to information applications suggest advisory boards usually confirm detentions rather than quash them.

An Amnesty International report from 2011 also suggested the existence of “screening committees” established by the Jammu and Kashmir governments to review detentions. These bodies, consisting of officials from the home department, security and intelligence agencies, had no legal basis and their deliberations were not made public, the report claims. In effect, the Public Safety Act has shaped an administrative machinery that runs parallel to the regular procedures of criminal justice, with their checks and balances.

About the only legal option left to detainees is filing habeas corpus petitions in the court. According to an RTI report from August 2018, the high court had quashed about 81% of the detention orders referred to it since 2016. While the local authorities are empowered to issue fresh detention orders against the detainees, the petitions are the only check on the executive. The Jammu and Kashmir High Court’s latest statements suggest even this bleak hope may be fading.

Not just politicians

Apart from prominent leaders, hundreds were detained after August 5, when the Centre downgraded Jammu and Kashmir from state to Union Territory and revoked special status. Several were minors and many were sent to distant jails in Uttar Pradesh and Rajasthan. Between August 5 and December 31, about 360 Public Safety Act detentions were challenged in the high court. According to a report compiled by the Jammu and Kashmir Coalition for Civil Society, 412 were booked under the law after August 5. Police officials in the Valley, speaking off the record, say the number could be around 600.

While Abdullah’s sister has moved the Supreme Court against his detention, many of these nameless hundreds lack the resources to do so. Now, more than ever, the judiciary needs to step up at all levels to check the indiscriminate use of administrative detention, which the Supreme Court once called “lawless law”.