An Infant’s Subversive Activities & Other Absurdities In J&K’s Legal Shadows

04 Aug 2020 8 min read  Share

He was either an infant or not born in the early 1990s. But the police said a Kashmiri man, in jail now for a year, had ‘affiliation with seditious activities’ since then. The Public Security Act, which played a key role in quelling dissent in Kashmir after 5 August 2019, takes a toll on families of those detained—and on the rule of law.

Mubeen Ahmad Bhat, who runs a medical store in Pampore, was a victim of the PSA.

Srinagar: “We completely follow the due process while imposing PSA and there is no discrepancy in that. If we book a person under law, we do proper check (sic) and verification and follow the legal protocol.”

This is what Rajiv Rai Bhatnagar, advisor to the governor of Jammu and Kashmir (J&K) told Article 14 about the Public Safety Act (PSA), a contentious law that allows J&K police to detain people on the suspicion that they might commit a crime in the future without bail, trial, or access to a lawyer.

Asked what the government does with PSA cases that do not follow due process or reveal legal shortcomings—as we detail in this story—Bhatnagar, who retired in December 2019 as director general of the paramilitary Central Reserve Police Force, said: “I am not the right person to comment on the issue.”

We sought comments between 13 to 15 June from Senior Superintendent of Police Haseeb Mughal and Director General Dilbag Singh, responsible for PSA dossiers and charging people under the law. There was no response. If and when they do reply, we will update this story.

The PSA greatly helped the security crackdown that followed 5 August 2019, when J&K was reduced to a union territory. There is no public count of how many were detained under the PSA. They include the previous chief minister, Mehbooba Mufti, whose 12-month detention the government extended on 1 August 2020 for another three months. While prominent detenus gain some publicity, most detentions remain in the shadows, observers said, taking a toll on families of those detained—and on the rule of law.

A writ petition filed in the Supreme Court in February 2020 challenged the constitutionality of the PSA and sought access to lawyers and compensation to those detained after 5 August 2019. The petitioners called the PSA a “redundant law”once called a “lawless law” by the global advocacy Amnesty Internationaland legal experts said it was unconstitutional, widely misused and violative of fundamental rights guaranteed in articles 14, 19 and 21 of the Indian constitution.

“The detaining authorities, despite being fully aware that their past orders are routinely struck down by the court for grounds such as factual inaccuracy, have no reason to do anything otherwise,” said Manisha Bhau, a researcher at the National Law University (NLU), Delhi, who has researched court orders under the PSA and wrote her findings for Article 14 in June 2020. “They are immune from legal proceedings and comply with the executive's directions.”

Auqib Bhat’s ‘Subversive Activities’ As An Infant Or Unborn Child

Firdousa Jan’s experience with the PSA differs substantially from Bhatnagar’s explanation.

The last time she spoke with the second of her three children, 26-year-old Aquib Ahmed Bhat, was on 4 August 2019. He called to inform her that the police had visited his crockery shop in Nowhatta, a volatile downtown neighbourhood in Srinagar, and had asked him to accompany them to the local police station.

“I requested him not to go, but he said, ‘they will trouble me if I do not,’” said Jan, a soft-spoken woman in her late 50s.

Later that day, Jan enlisted Aquib’s elder brother, Saqib, to check on him. When Saqib returned home alone, Firdousa knew something was wrong. Where is Aquib? she asked. “He only replied, ‘they did not release him,’” she said.

Aquib, a loving son and grandson, became one of hundreds detained without trial since August 2019, when India’s ruling Bharatiya Janata Party government removed the special status accorded to J&K in India’s constitution.

Articles 370 and 35-A had granted semi-autonomous status to the state of J&K after partition of the subcontinent in 1947. The state had been given authority to establish a separate constitution and state flag; legislate in all matters except finance, defence, foreign affairs and communications; and guarantee property rights to its residents.

On 5 August 2019, the Indian government unilaterally abrogated article 370 and 35-A and mobilized thousands of troops, followed by a statement by home ministry in parliament that this would improve the situation in Kashmir Valley.

Thousands of people, including political and religious leaders, were detained in an unprecedented security crackdown that suppressed communication and dissent. It has been a year since the special status was abrogated, and thousands of detainees still are languishing in different jails within and outside J&K.

Aquib was arrested and kept in the police station for seven days before being moved to the Central Jail, Srinagar.

Twelve days after Aquib’s arrest, Saqib interrupted his morning errands to check on his jailed brother. When he returned home, he was in shock. “They have taken Aquib to Agra,” he told his parents. Agra is 1,000 km southeast of Srinagar in Uttar Pradesh. No one had informed his family.

According to the documents produced by the police before the court, the basic grounds for detention against Aquib are: “In the early nineties he has remained affiliated with various subversive activities which are prejudicial to the maintenance of public order.”Those documents list the “age of the detenu” (Aquib) as 26 years, which means that he would have been either not born or an infant at the time of his “subversive activities”.

Aquib’s family disagreed that he was involved in any unlawful activity that would be a threat to the security or maintenance of public order.

"I am worried about him, though he keeps on telling us to ‘Have faith in God. I am fine and if and when by God’s will I will be with you,’” said Jan.

It has been a year, and Aquib’s family still has no clue why he has been imprisoned for so long.

“In these 12 months, I have seen him just once, last year in November,” Jan said, as she wiped away her tears.” He is a shy boy, who never complains even if he is sick. How he will cope, I do not know.”

The State Is Gone, Its Law Remains

The Public Safety Act (PSA), 1978, of Jammu & Kashmir is an administrative detention law that allows for the arrest and detention of any individual for up to two years without a “warrant, specific charges, and often for an unspecified period of time”.

The state law, which still remains in force, despite the national government’s seizure of state government, was introduced in 1978 by Sheikh Abdullah to prevent timber smuggling and keep the smugglers in prison. But it has been consistently employed to suppress dissent and terrorize the public, serving as legal cover for the government to detain both activists and ordinary citizens at will.

As per the law, district commissioners and district magistrates pass detention orders. These orders must be reported to and approved by the government within twelve days. The detaining authority is required to communicate the grounds for detention to the detained person ordinarily within five days, and within 10 days in exceptional circumstances.

However, the detaining authority is exempt from disclosing any information if it believes that such disclosure will harm public interest. In most cases, the detaining authorities do not disclose the grounds for detention or fabricate them, as in Aquib’s case.

To compound this abuse of the PSA, the national government is also egregiously misreporting detentions under the Act. The Government of India claimed in Parliament on 20 November 2019, that “5,161 persons were detained since August 5, out of whom 609 were under detention while the rest were released”. But according to a recent written representation from executive committee members of the J&K High Court bar association to the Chief Justice of the Supreme Court of India, nearly 13,000 people are still in detention—a number more than 20 times higher than officially reported.

“There has been no serious intervention by the judiciary, especially the Supreme Court, to stop illegal detentions under PSA or build in procedural rights such as the right to a lawyer,” said Bhau, the NLU researcher. “Even the regressive amendments passed under Governor's rule [Preventing the judicial participation of an advisory board and transferring detainees outside of J&K] survive without any judicial scrutiny. Instead, all we have is a piecemeal approach, in which courts strike down orders one by one but don't go any further than that." 

Mubeen Bhat’s Innocence And Lasting Trauma

Mubeen Ahmad Bhat, a medical store-keeper from the saffron-growing town of Pampore, was also a victim of the PSA.

Mubeen, 50, was arrested in September 2019 after the police raided his residence in Pampore’s Drangbal area of south Kashmir around midnight . He was bundled in a police Gypsy and put behind bars in Pampore police station.

For eight days, Mubeen and his family had no information about the cause of detention. Within those eight days, police prepared his PSA dossier and filed FIRs (first investigation reports) against him.

From Pampore, state officials shifted Mubeen to Central Jail Srinagar without informing any of his family members. Mubeen’s wife, Asima Jan, and their two children, aged 6 and 9 years, had abandoned hopes to find the whereabouts of Mubeen amid the communication blockade.

Mubeen was released this May after nine months in prison. Sitting at his shop, Mubeen was hesitant to talk about the time he spent in jail.

"I want to delete this time from my memory,” said Mubeen. “My sister got married...They didn't let me come home for even that day. Even a murderer will not be treated this way.”

Mubeen explained that police detained him without any reason. “They were troubling me for the past three years...they found nothing against me; they booked me under false charges.”

Mubeen was charged with drug dealing, and his dossier reads: “You came in contact with various bad characters and rogue elements and indulged in drug dealings in a clandestine manner in order to earn wealth through shortcuts.”

But the police registered no FIR or complaint under the Narcotic Drugs and Psychotropic Substances Act (NDPS), 1985, or Drugs and Cosmetics Act (DCA), 1940, against Mubeen, nor was there any such mention in the detention order.

Mubeen claimed the allegations were “baseless”, and if there were grounds for invoking the PSA, the government would not have stepped back. He said he wanted a case against the police, but shuns the idea at the same moment because of the repercussions that he might have to face with no hope of getting justice.

“When I recall what happened to me through these nine months, I want to fight hard,” he said. “But when people explain to me what will happen, I stop to think about it... I am constantly fighting a battle inside."  

Lawyer Shah Faisal said that a person under PSA can be detained only under two grounds; security of the state and public order. But in most PSA cases, detaining officers exploit vague guidelines.

“These are clear examples of how PSA is being misused,” said Faisal. Even if Mubeen was dealing in drugs, other laws could have been used against him, such as the NDPS and the DCA, mentioned previously.

“While invoking the provisions of PSA, the detaining authority [should] remain extra cautious and apply its mind, since somebody’s constitutionally guaranteed rights are being curtailed,” said Faisal.

(Safina Nabi is an independent journalist based in Kashmir. She writes about gender, health, social justice and human rights.)

Previously on Article 14:

Now Lawyer, No Appeal: Kashmir’s ‘Lawless Law’

A Kashmiri In Bareilly Jail And Other True Stories

The Special Law That India Reserves For J&K