POLITICS
02/10/2019 7:28 AM IST | Updated 02/10/2019 1:15 PM IST

Modi Govt Breaking Detention Laws In Kashmir As Thousands Are Jailed

Lawyers say Indian authorities are flouting the basic legal procedures for preventive detention.

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Indian forces stand alert during restrictions in Srinagar, Jammu and Kashmir on 27 September 2019. 

SRINAGAR, Jammu and Kashmir — On 9 August, four days after the Narendra Modi government scrapped Jammu and Kashmir’s constitutional autonomy, Nazir Ahmad Ronga, a prominent Kashmiri lawyer and former president of the Jammu & Kashmir Bar Association, was taken from his home in Srinagar by a posse of policemen.

A week passed before his family learnt that Ronga had been held in Srinagar central jail. Another week passed before they learnt of his grounds of detention — only because Ronga passed on the news to a fellow detainee who happened to be a client of Ronga’s son, who is also a lawyer. 

And then he was gone again, until his family learnt that he was now in a district jail in Ambedkar Nagar, Uttar Pradesh.

“This is happening to a prominent man like my father,” his son Umair Nazir Ronga told HuffPost India. “Can you imagine what is happening to ordinary people?”

Thousands of Kashmiris — politicians, separatists, lawyers, young men, and minors — have been arrested in the days leading up to and in the aftermath of abrogation of Article 370. Media reports on the number of arrests and detentions vary from 4,000 to 13,000

The Modi government has refused to say how many people have been jailed, where they have been lodged, and the reasons for their detention.

Yet many of these detentions, interviews with Srinagar-based lawyers establish, are in violation of Jammu and Kashmir’s famously draconian laws of arrest and detention. 

The Jammu & Kashmir Public Safety Act allows the authorities to detain a person before a crime is committed and hold them without trial for up to one year in cases of public order and two years in cases of national security. However, it does require officials to provide reasons for their detaining someone, furnish the detenu and his family members with the grounds for detentions, and give the detenu an opportunity to challenge his detention. 

Lawyers in Kashmir say Indian authorities have been detaining people under grounds that are vague to the point of absurdity.  

Manzoor Ahmed, a senior lawyer and an executive member of the J&K Bar Association, said that at least 300 habeas corpus petitions have been filed since 5 August as desperate family members try to track down their imprisoned relatives.

The Indian Express has reported that the two benches of J&K High Court, Srinagar and Jammu, which should have 17 judges, is operating with only nine at present and only two judges in the Srinagar bench are hearing these habeas corpus petitions.

But government lawyers are simply refusing to respond to court notices.  

“Since 5 August, no reply has been filed in any habeas corpus petition. The situation is more than hellish,” said Ahmed, the lawyer. “The judges are telling government lawyers to respond to habeas corpus petitions but the might of the state prevails.”

The situation is more than hellish.

If Ronga, a former president of the J&K Bar Association, is lodged in a district jail in Ambedkar Nagar, the current president of the Bar, Miya Abdul Qayoom, has been detained under the PSA

and is currently incarcerated in the Agra central jail. 

Mohammed Ashraf Butt, the J&K Bar Association’s general secretary, has been booked under Sections 107 and 151 of the Criminal Procedure Code (CrPC), which allow for preventive detention. He is lodged in the central jail in Srinagar.  

Abdul Salam Rather, president of the Baramulla Association, has also been booked under the PSA, senior lawyers of the J&K Bar Association told HuffPost India

Ahmed, who has filed a habeas corpus petition for Qayoom, said, “It’s been more than three weeks but the government has not responded. This is how they are treating the J&K Bar president. He is someone who is 24x7 in front of judges. They know that he is not a terrorist. Can you imagine the plight of an ordinary citizen?”

Can you imagine the plight of an ordinary citizen?”

Plight of Kashmiris

While prominent lawyers like Ronga and Qayoom have the support of the wider legal fraternity, most Kashmiris are relying on young lawyers like 25-year-old Zainab Amin, who has been filing habeas corpus petitions free of charge. 

Amin pulled out two files from an office cabinet and placed them next to each other. 

“Read,” she said. “The detention orders for both men are identical. The grounds of detentions have the same vague language.”

The habeas corpus petitions for these two men — two political workers from Baramulla who were booked under the J&K Public Safety Act on 10th August — were received by the J&K High Court on 30th August, but the government is yet to respond to them. 

The law requires officials to apply their minds before detaining a person.  

The detention orders for the two political workers — issued by the District Magistrate of Baramulla on 10 August 2019  — read the same. 

The first is made out for a 55-year-old political worker of the National Conference (NC) from Hygam Sopore in Baramulla. The second is made out for a 55-year-old political worker from the Jammu and Kashmir People’s Conference (JKPC) from Tehsil Pattan. 

In both cases, the grounds for detention offer no specific proof to support a series of unsubstantiated assertions.

For the NC worker, the government writes, “You have been found to be one of the main limb for spreading anti-national sentiments among the populace of area of Hygam Sopore in order to vitiate peaceful atmosphere. You are trying to mobilise the people of area of Hygam Sopore and other adjoining areas against the abrogation of Article 370 which ultimately creates grave law and order situation.” 

For the JKPC worker, the government writes, “You at every available opportunity exhort the general public to raise a voice against the government established by law. You are reported to have stressed the general public to continue the secessionist activities and arousing anti India sentiments in them which poses a major threat to the maintenance of public order. It has been closely observed that you are nurturing the secessionist ideology and in fact you are motivating others to indulge in similar activities. You have been indulging in anti national/anti social activities in order to disturb the peaceful atmosphere of Tehsil Pattan, so that the situation worsens in the area. You are an anti-social element and you have been coming into the adverse notice of the police for creating an atmosphere of unrest.” 

For Ronga, a former president of the J&K Bar Association, who is linked to the Mirwaiz-led faction of the Hurriyat Conference, the government writes, “Whereas you are very vocal against abolition of Article 370 and 35 A of the Constitution, India and also against the bifurcation of the erstwhile Jammu and Kashmir State. You have led many protests marches and created problems within the district of Srinagar. Besides instigating youth in general and party workers and youth belonging to your community in particular your capacity can be gauged from the fact that you are able to convince your electorate to vote in huge numbers during poll boycott.” 

Umair Nazir Ronga, Ronga’s son, said, “They are not giving the substantive grounds for detenus to defend themselves. They are not giving them the opportunity to defend themselves. They are not even giving them a pen and paper.”

They are not giving them the opportunity to defend themselves. They are not even giving them a pen and paper.

Tip of the iceberg

Aijaz Bedar, the vice president of the J&K Bar Association, said that the 300 habeas corpus petitions filed since 5 August was the highest ever in this time frame. By way of comparison, 260 Habeas Corpus petitions were filed from January to July in the J&K High Court, he said. 

But even these 300 are very likely the tip of the iceberg. 

The communication blackout coupled with the lack of public transport — buses and sumos operated by private transporters — has made it harder for people to travel from the hinterlands to the city for legal assistance.  

Shabeer Bhat, a 31-year-old lawyer, who is taking habeas corpus petitions free of charge, said that some people are sending the PSA orders, which they have received, through “someone who knows someone,” hoping that it reaches the “right lawyer.”

“It took five days for a young boy from a far flung part of Kupwara to reach Srinagar to find a lawyer. His father was booked under the PSA,” he said. “The rule of law is supreme, but what is happening in Kashmir is alien to the law. It is strange to the law.”  

It took five days for a young boy from a far flung part of Kupwara to reach Srinagar to find a lawyer.

Govt not taking notice, won’t listen to judges

The biggest challenge, according to Amin and Bhat, is that the government lawyers are taking advantage of the general breakdown of communication networks to avoid acknowledging directions from the High Court.  

Prior to the current lockdown, government lawyers would take notice of habeas corpus petitions in open court. Since August 5, government lawyers appear to be deliberately ignoring notices issued in open courts. 

Lawyers say they are forced to send the habeas corpus petitions by post to the Home Department, to the District Magistrate’s office, and to the J&K Police, with the expectation the petitions will be routed back to the government lawyers.  

“The government lawyers sit next door to us,” said Amin the lawyer, highlighting the absurdity of the situation. “But we are having to send the habeas corpus petitions to them by post.” 

“The problem is that postal services are still not available to people. Even the counter for registered post in the High Court is not open,” said Bedar, who was speaking last week. “People are forced to take their petitions by hand and deliver it to the relevant government departments.”

The judge who is listening to the habeas corpus petition filed by his client, Miya Abdul Qayoom, the president of the J&K Bar Association, had directed the state to respond in two weeks, said Ahmed. 

“The hearing is on the 5th of October. Let’s see what happens. They may ask for another adjournment. They have been saying things like the present environment is not conducive for them to get all the relevant material,” he said. “This is insensitivity on part of the state.” 

People are forced to take their petitions by hand and deliver it to the relevant government departments.

Meeting relatives in prison 

In the 1981 case, A.K. Roy versus Union of India, which was a group of writ petitions challenging the validity of preventive detention laws, the Supreme Court reminded the state that “a detenu is not a convict.” 

Then Chief Justice of India Y.V. Chandrachud wrote, “We see no reason why they should not be permitted to wear their own clothes, eat their own food, have interview with the members of their families at least once a week and, last but not the least, have reading and writing material according to their reasonable requirement.”  

Nazir Ahmad Ronga’s son, and other Kashmiris, who had attempted to meet their relatives in jails in UP and Haryana in the weeks following 5 August, told HuffPost India that they were denied permission by jail authorities. 

Indian citizens, lawyers say, can meet their jailed relatives by submitting an application to the jail authorities along with government-issued proof of identification. 

For Kashmiris, the government has made it harder.

Following an uproar, the state home department directed the Director General of Police (DG), Prisons in Srinagar to appoint a nodal officer, who is in charge of facilitating meetings between the detenus lodged outside J&K and their relatives. 

Family members, lawyers said, are required to procure a “verification certificate” from the Station House Officer (SHO) at their local police station, which is forwarded to the nodal officer, who then issues a pass which is faxed to the jail authorities outside the state. 

Ronga’s family met him on 13 September at the district jail in Ambedkar Nagar, 20 days after he was moved from Kashmir to UP. 

Bedar summarized the ordeal: “For the first two weeks after 5 August, families were not allowed to meet their detained relatives. Then, public pressure built up and the government started allowing it. But the jail authorities kept only one day for Kashmiris to meet with their relatives Thursday. So, if you arrived on Monday, then you had no choice but to wait.”

“Then, there was uproar. People said, ‘What is this?’ Now, it is two days ― Tuesday and Friday,” he said, adding, “They are making a mockery of legal procedures. They are making a mockery of everything.”

Fear of PSA

Indian Administrative Service (IAS) officer-turned politician Shah Faesal, who was detained on 14 August, had filed a habeas corpus petition in the Delhi High Court on 19 August, but he withdrew it on 12 September. 

Politicians, Ahmed and Bedar said, are not challenging their detention under Sections 107 and 151 of the CrPC because they fear getting slapped with the PSA. 

“Politicians have opted not to challenge their detention because of the threat perception,” said Ahmed. “They (government) have floated the word that in case anyone challenges the order under Sections 107 and 151, he will be booked under PSA.”

Farooq Abdullah, the former chief minister of Jammu and Kashmir, was booked under Sections 107 and 151 of the CrPC, Ahmed said, but after Marumalarchi Dravida Munnetra Kazhagam (MDMK) General Secretary Vaiko filed a habeas corpus petition to produce the Kashmiri politician before the Supreme Court on 11 September, Abdullah was booked under the PSA on 17 September. 

Detention under Sections 107 and 151 of the CrPC is for a maximum period of six months, or until the detained person submits a bond that he will not engage in any unlawful activity,  said Bedar. 

“A tehsildar goes every week and says ‘are you willing to give us a bond?’ They say no and he leaves,” said Bedar, referring to the politicians detained under CrPC. 

“If they sign the bond, politicians fear being booked under PSA. Under 107 and 151, they cannot be shifted outside the state. They want to remain in Kashmir,” he said. “Both you and your family are in deep trouble if you are detained outside the state.”  

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