Srinagar: Mohammad Abbas, 22, a master’s student at the University of Kashmir, had hoped to pursue higher studies at a foreign university following his post graduation. Suddenly, he has found that plan shattered by his participation, more than two years ago, in a protest march against the rape of a three-year-old girl.
In May 2019, Abbas marched in a group of men and women in Srinagar, the capital city of Jammu and Kashmir (J&K), against the rape of the little girl in North Kashmir’s Bandipora district. He was detained and released after 24 hours.
It was nearly six months later that he realised he was named in a First Information Report (FIR) at a Srinagar police station, on charges of rioting, under sections 147 (rioting), 148 (carrying a deadly weapon) and others of the Indian Penal Code (IPC), 1860. The maximum punishment the charges carried was three years’ imprisonment.
According to Abbas, he came to know about the FIR only in October 2019. “I was preparing for an entrance examination for admission to the Jawaharlal Nehru University (JNU) when I received a call from a local police station,” Abbas told Article 14.
At the police station, he was told an FIR had been registered against him. He wasn’t arrested again, but was instructed to attend court hearings subsequently. Disturbed and shaken, he took the entrance exam a few days later, but missed qualifying by four points.
What Abbas didn’t comprehend fully at the time was that the FIR significantly lowered his chances of travelling abroad for higher studies and of getting a government job in J&K.
On 31 July 2021, the government of the union territory of J&K issued an order denying security clearances for passports and government jobs to anybody with an “adverse police report” for involvement in law and order and stone-pelting cases, an order that has effectively dashed the hopes of Abbas and thousands of others.
“This is a huge setback for youth and will further alienate them,” said Abbas, who is currently pursuing a master’s in social work at the University of Kashmir. “What is the option left for us now?” Abbas has a passport but expects that he will not be given travel documents.
The circular issued by the Special Branch of the Criminal Investigation Department (CID) (CID-SB) of Jammu and Kashmir police ordered all field units to ensure that “the subject's involvement in law & order, stone-pelting cases and other crimes prejudicial to the security of the state” be specifically studied before every police verification procedure. This includes verification by police for issuance and renewal of passports, Government services and for all government schemes.
The circular instructed officers to refer to digital evidence including CCTV footage, photographs, videos, audio clips and quadcopter images available with the police and security forces in order to enforce the new rules.
The circular only reiterates existing protocol on how to conduct police verifications, but the implicit message is clear—two years since New Delhi rendered Kashmir a federally administered region, dissent will continue to be suppressed. Barring all protesters from obtaining government jobs, schemes and passports is one more in a string of measures including subduing media freedom, sacking of government employees, and a crackdown on civil rights activists. The union government is attempting to restart the political process in the troubled region, but alongside a gerrymandering process and continuing to brook no dissent among Kashmiris over the loss of their limited autonomy.
Kashmiris reacted to the circular with outrage, while regional political parties condemned it as counterproductive and arbitrary. Sajjad Lone’s J&K People’s Conference said the “stringent order" was “unambiguously harsh”.
The order was issued days after the government terminated the service of over 20 employees including a professor and staff from the health and power departments, all without an inquiry. They were terminated for allegedly working as ‘overground workers’ for militant organisations. Overground workers, or OGWs, are citizens accused of helping militants with logistical support including cash and shelter.
Thousands Of Citizens Will Be Affected
For nearly three decades, Kashmir has witnessed political unrest and public protests, especially since 2008 when the Valley witnessed protests and clashes against the transfer of nearly 40 hectares of forest land to the Amarnath Shrine Board.
This was followed by widespread protests against the rape and murder of two women in Shopian allegedly by armed forces in 2009, mass public protests after the Machil fake encounter in 2010, clashes between protestors and police after the hanging of Parliament attack accused Afzal Guru in 2013.
Again in 2016, massive unrest erupted after the killing of Burhan Wani, the poster boy of Kashmir militancy. Most recently, protests were staged in 2019 after the Government of India unilaterally revoked the erstwhile state's special status.
Official figures suggest that 3,773 cases of law and order were registered in 2016 and 2017, resulting in the arrest of 11,290 people. The Hindu reported that around 9,730 people faced charges between 2008 and 2017 for participating in protests. In 2007, Indian Express reported that around 60, 000 Kashmiri families were on a security blacklist.
During their tenures as chief minister, Omar Abdullah and Mehbooba Mufti had announced amnesty schemes for those arrested for stone-pelting.
In 2011, Abdullah announced a general amnesty scheme for youth involved in over 1,200 cases of stone-pelting in the Valley during the 2010 unrest.
Mufti announced an amnesty programme for first-time stone pelting offenders. Cases against 9,730 people, including first-time offenders, filed between 2008 and 2017, were withdrawn. Those schemes may now offer little respite to their beneficiaries.
Asked whether those granted amnesty by previous governments would be spared in implementing the new circular, a top police official from the CID told Article 14, “If a stone pelter has a case registered in 2010 and applies for a passport now, obviously his police station record will reflect that he had a criminal background.”
According to Meenakshi Ganguly, South Asia director for Human Rights Watch, the new circular violates international standards while removing judicial oversight opens the door for harassment and extortion by security officials instead of continuing to view a person as innocent until proven guilty.
“The order also appears to bypass due process and makes law enforcement officials judge and jury,” she told Article 14.
‘This Identifies Threats To Security’
During the unrest of 2016, Tariq Ahmad (name changed), now 22, was booked by J&K Police for stone pelting, and an FIR registered at the Ajas police post in North Kashmir’s Bandipora district. Ahmad was a juvenile at the time. Six years later, his case progresses slowly in a sessions court in North Kashmir’s Bandipora. A recording error during his arrest led him to be tried as an adult instead of in a court for juvenile offenders, he said.
Ahmad, who completed his class XII, couldn’t study further due to domestic issues and was hoping to travel abroad to find work. “I came to know that I can’t apply for a passport because I have an FIR,” he told Article 14.
Under the Passports Act, 1967 police verification is routine procedure, but police in other states do not have arbitrary powers to reject clearances. Citizens may also approach the appellate authority or the court hearing a pending case to certify that the person is not required for the trial.
Ahmad has been idling at home since, dejected. He said he had been appearing for the hearings in sessions court for the last six months in the hope that he would be able to travel abroad to support his family. “But when I heard about the fresh order of the CID, that seemed impossible,” he told Article 14.
Inspector General of Police (Kashmir) Vijay Kumar and police officers of the CID were unwilling to comment about the new circular. However, a top CID official who wished not to be named told Article 14 that the new order was executed after a local youth from North Kashmir’s Bandipora district “exfiltrated” in 2018 via the Wagah border, with a passport, to join terror camps in Pakistan.
The militant, identified as Shakir Altaf of Plan, Bandipora, was killed along with two other foreign militants in an encounter with security forces on 25 July.
The CID officer said Shakir had recently returned to Bandipora, infiltrating via the LoC. “After his killing, the police got alert and decided to tighten the grip,” said the CID official.
The fresh order could help identify such individuals, he said. Besides Shakir, there were others who crossed the LoC with a passport and joined terror groups, he added. The order will help police "identify people who may create problems for the security of the state", he said.
On 10 August, J&K Director General of Police Dilbag Singh said that 57 youth went to Pakistan in 2017-18 on valid student or tourist visas and later joined militant groups, the Press Trust of India reported. Singh said they went on valid passports but returned illegally after crossing the border with arms, having undergone training there.
Seventeen of them were killed in encounters after infiltrating back across the border, he said.
Existing Procedure, Tightened Now
The new circular serves to remind juniors about an existing protocol for providing security clearances to citizens seeking passports or government jobs, said the senior CID official. According to the circular, additions in the circular pertain to stringent checks on applicants for government schemes and people involved in law and order, stone pelting cases.
Denial of security clearance was previously limited to people who had links with militancy and separatists.
In December 2017, the central government had advised the J&K government to ensure that genuine cases of Kashmiri youth applying for passports are not hindered by relatives’ names being connected to militancy-related cases.
Kashmiri political analyst Sheikh Showkat Hussain, a legal expert and a former faculty member at the Central University of Kashmir, sees the new order as an attempt to initiate “psychological warfare” in the valley, an attempt to nip fresh unrest.
“The procedure (for police verification) has been in the system for decades,” said Hussain, “but when the circular was made public, it means parents will have to sensitise their kids more about the ill-effects of being anti-state.”
Hussain said the rapidly closing avenues for Kashmiris to express dissent could take those imposing the restrictions by surprise. A CID report against a person should not be sufficient by itself to deny his or her legitimate right to a passport, he said.
“Right to a passport is part of the right to life. It has been mentioned by the Supreme Court in the Maneka Gandhi case,” he said. If the right to life is not suspended “even during the time of Emergency”, it cannot be denied on the basis of a CID report, he argued.
In a 2020 judgement, the Supreme Court noted that the “right to travel abroad is part of the fundamental right to dignity, personal liberty”.
Contesting An Executive Order
Supreme court lawyer Abhinav Sekhri said the order of 31 July could be contested.
“All executive orders can be contested,” said Sekhri. The previous protocol was not explicitly in the public domain and therefore difficult to contest, but now that the circular is available, citizens may contest any rejection of security clearance, he said.
Sekhri, who is representing 22-year-old climate change activist Disha Ravi in what has come to be known as the ‘toolkit’ conspiracy case, said the order requires police to show a link between the person and the case in order to deny security clearance, active corroboration of allegations with photos, videos.
Shortly after the order was circulated on social media, former chief minister and National Conference leader Omar Abdullah said his detention under the draconian Public Safety Act (PSA) 1978, after the abrogation of Article 370 on 5 August 2019 had been justified by the J&K Police with precisely such an ‘adverse police report’ .
Abdullah said the police report could not be a substitute for a conviction in a court of law. An “executive order cannot replace a court of law”, he tweeted.
In September 2020, the administration invoked the PSA, which allows detention without a formal charge or trial, against Abdullah and former chief minister Mehbooba Mufti to extend their detention. Abdullah was released after six months of detention, Mufti after 14 months.
In March 2021, the passport applications of Mufti and of her mother Gulshan Nazir were rejected due to an “adverse police report”. PTI reported that the Regional Passport Office informed Mufti’s mother of the J&K Police's CID rejecting clearance for her passport.
The rejection came under sections 6 (2) and (c) of the Passports Act, whereby authorities may reject an application if they feel the applicant may engage in “activities prejudicial to the country’s sovereignty, integrity and security”, or if “the passport applicant’s presence outside India may prejudice friendly relations with a foreign country”.
Aparna Chandra, associate professor at the National Law School of India University, Bengaluru, said the order can be “definitely contested” in court. Police unilaterally deciding the fate of any person who they believe is prejudicial to the state and may be deprived of statutory and constitutional rights goes against the core principles of the Indian Constitution, said Chandra.
In the Maneka Gandhi vs. Union of India case, said Chandra, the Supreme Court ruling was clear that a passport cannot be denied unilaterally for it falls under the ambit of the right to personal liberty guaranteed by Article 21.
“At the time, under the Passport Act, there was no requirement for a hearing to a person before impounding their passport,” said Chandra. “However, the court maintained that you cannot do that as it is against due process.” That mean the J&K police order to deny passports without a hearing will run afoul of the SC order, she said.
“People are being denied their statutory and constitutional rights on the basis of unproven allegations, and without giving them the opportunity to address these allegations,” Chandra told Article 14.
These “collateral consequences” of a conviction go beyond the law, leading to convicts being denied jobs etc. “Prior to conviction, there is no ground to deny the passport," she said.
Police Order Could Fuel More Dissent
Political observers maintain that the move will further alienate youth just when a growing number of youngsters join the ranks of militants.
On 29 May 2021, a 24-year-old youth from South Kashmir’s Kulgam district ended his life claiming he was taking the extreme step because his father had not been paid his salary for two-and-a-half years. The youth recorded a video of himself before ending his life.
According to reports, the young man’s father, who is a teacher at a government school, had received an adverse police report, owing to which his salary has not been released till date. The incident caused unease among people across the valley.
Advocate Shafqat Nazir, who practises in the High Court of J&K and Ladakh, called the move to withhold police verification for passports “bizarre”.
“Authorities may put these conditions for getting a job in government services, but the conditions must not be arbitrary,” he told Article 14.
What’s more, the order could push young people to repeat an offence mistakenly committed years ago. “What is the option left for him? He can neither travel abroad for work nor are you giving him an opportunity to work here. He definitely repeats the act,” he said. That a policeman could now decide the fate of a Kashmiri is arbitrary, he said.
(Auqib Javeed is a Srinagar-based journalist).