In J&K, the Administration’s Extraordinary Measures Bypass Ordinary Law

In a ‘legal’ Emergency-like situation, ordinary law is being sidestepped to invoke measures like the UAPA and PSA.

The very application of law is experiencing an astonishing improvisation in J&K.

(Photo Courtesy: Muneeb Ul Islam)

The Jammu & Kashmir administration is now well past its second year of ruling the Union Territory via executive fiats. So, earlier this month, when it issued yet another order, the latest in a slew of similar official missives by which it administers control over the Valley, it was no surprise that the public reacted with suspicion, anger and bitterness. After all, it’s been more than three years that the region has seen no elected government. The whole former state has been remade, its governance structures bulldozed and then raised afresh — all to foster a new polity, one that, at least the Bharatiya Janata Party (BJP) believes it, will guarantee a lasting integration of Kashmir with the country.

The restructuring of J&K is still under way, and for the most part, is realised with the help of a steady stream of seemingly portentous official communications.

New Order for Govt. Employees

The latest order has been framed along the same gloomy lines. It reminds the employees of the J&K government that they will be denied promotions or, worse still, sacked from jobs if they were found to have been involved in “sabotage, subversion, espionage and sedition”. The order imposes steep terms on the employees even if the wrongdoers turn out to be someone they’re only acquainted with by virtue of “affection, influence and obligation” – typical of the vague phraseology that abounds in the J&K government handouts these days.

It is not the first such letter. Last month, the J&K Police’s Criminal Investigation Department (CID) declared that it will deny “security clearances” to individuals involved in crimes “prejudicial to the security of the state” and even prevent them from leaving the country. Already in April, the government announced the formation of a Special Task Force dedicated to identifying public employees with “anti-national” proclivities and provided for mechanisms for laying them off.

Yet, the real issue lies elsewhere — it is the law that the government invokes to authorise such dismissals.

Article 311 (2)(c) of the Constitution is a deeply controversial statute. By appealing to the “security of the state”, it bypasses the requirement of having an official enquiry that would’ve normally underwritten these sackings.

Previously, such inquiries found that many of these charges accusing employees of sedition or anti-national sentiment are flawed in nature and thus stalled the terminations. This year, more than two dozen employees were laid off under 311(2)(c).

But the process of sidestepping the conventional norms is not exclusive to terminating state employees. Instead, the very application of the law is experiencing an astonishing improvisation in J&K. Concomitant to this are a host of other policy measures, which, cumulatively, are creating a state of exception in J&K.

Section 144 of the CrPC

Section 144 of CrPC is another example of “exceptionalising” the rule of law in Kashmir. As the Jammu and Kashmir Coalition of Civil Society (JKCCS) observed in its report on Internet shutdowns last year, the administration in the region has frequently resorted to Section 144 of the CrPC to block Internet and communication services, bypassing more accountable provisions under the Indian Telegraph Act and the Information Technology Act that offer some degree of checks and balances.

It was only after the enactment of the Temporary Suspension of Telecom Rules, 2017, that the invocation of Section 144 became all but impossible.

The JKCCS report complains that there has been a shroud of secrecy over the legal framework behind Internet shutdowns in J&K. That ended in January 2020, when the Supreme Court announced its verdict in Anuradha Bhasin vs Union of India, which mandated all Internet suspension orders to be made publicly available, a timeframe for suspensions to be specified and a review committee to be set up.

Earlier this year, the J&K administration banned the use of unmanned aerial vehicles in parts of Kashmir. Instead of reaffirming Director General of Civil Aviation (DGCA) guidelines that already deal with issues sensitive to national security, a blanket ban on drones was enacted, once again, by invoking Section 144.

Draconian Measures

J&K has become a staging ground for the Modi government’s scattershot approach to the Unlawful Activities Prevention Act, which makes bail well nigh impossible and guarantees lengthy pre-trial detention. Recently, the UNHRC expressed concern over the use of this law in India. The latest data suggest that J&K accounts for a third (287) of the total number (796) of UAPA cases filed in India in 2020. In fact, since 2019, the J&K police have booked over 2,300 people under more than 1,200 cases filed under UAPA, one of the highest rates in the country.

The most problematic part of the UAPA is Section 43 D (5), which subordinates the fate of the accused person to the court’s perusal of their case diary, which is prepared by the police, thus restricting the substantive role that the judiciary can play.

The J&K police have filed UAPA cases even against the circulation of rumours and fake news. This year, UAPA cases have been filed against persons for resisting cordon-and-search operations, for leading funeral prayers of slain militant men, for throwing stones, and for raising “anti-national slogans” during protests — all “offences” where other provisions under IPC and CrPC could have been applied as well, say legal experts.

Similarly, this year, this author could count at least 34 such instances where the J&K High Court quashed the slapping of the Public Safety Act, a controversial preventive detention law. In a number of these judgments, the courts are rapping authorities for bypassing “substantive laws of the state” and resorting to PSA.

For example, in the case of Naaz Muhammad from Chadoora Budgam, the court observed that “no doubt that offences alleged to have been committed by detenu are such as to attracted punishment under the prevailing laws but that has to be done under the said prevalent laws and taking recourse to preventive detention laws would not be warranted (sic).” In the case of Rameez Dar from Rajpora Pulwama, the court clearly states that preventive detention “cannot be made a substitute for ordinary law and absolve investigating authorities of their normal functions of investigating crimes.”

An 'Undeclared Emergency'

Add to this a passing of peremptory policy measures, with no precedent in the country, such as the ‘Media Policy 2020’, which aims to punish “anti-national reporting”, or the recent order by District Magistrate Kupwara asking journalists to obtain “approvals” before they are allowed to carry out their professional duties. There have been reports that authorities are issuing look-out notices for journalists and academics from Kashmir based on the “adverse” communications from the CID. They are being prevented from leaving the country.

“All these legal measures are Emergency-like in nature, suspending constitutionally guaranteed human rights. Yet, at the same time, they contradict certain basic understandings of a legal emergency, which is a temporary suspension of ordinary law, within a defined geographical location, due to an urgent necessity,” said Shrimoyee Nandini Ghosh, a legal anthropologist. “Yet, the emergency in Kashmir is a pervasive and permanent condition.”

Ghosh said the J&K administration does not invoke any Emergency provisions but uses executive and police powers granted within the ordinary law.

“It works on the principle of presumptive guilt. All of these measures are suffused with the same theme, elevating threats to ‘national security’ over other requirements of the law,” she said. “The normal process of determining guilt involves first having an FIR, followed by investigation, and then the courts have to frame charges before the presentation of evidence takes place through a trial. Just based on secretive intelligence sources and methods, we have orders that decide who can travel or who can retain a job. It’s a classificatory regime of criminalising people without trial.”

The Cyber 'Volunteers' Programme

Previously, a cyber-volunteer programme launched on a pilot basis in J&K and Tripura sought to recruit citizen volunteers to identify “unlawful content” under such broad and vague categories as “against sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign states, public order, and communal harmony”.

The programme, which has been slammed for pitting “citizen against citizen”, came despite the fact that similar previous initiatives at state levels have either been criticised by courts for “creating a surveillance state” or were cancelled in response to a barrage of angry public reactions. In fact, the Supreme Court’s 2015 decision to strike down Section 66A of the IT Act was based on the grounds that criminalising online speech on vague grounds was uncalled for.

Conflict Management is Key in Kashmir

This tailored, fit-for-purpose legal arrangement ends up conferring Emergency-like powers to the law enforcement agencies but without a formal declaration of Emergency, experts say. “Conflict management has always been a subject of prime consideration in Kashmir,” said Sheikh Showkat Hussain, a legal scholar and academic.

“Successive governments have sought to avoid principles of natural justice, which say no one should be condemned unheard or that no one can become the judge of their own cause. Basic rules of governance in Kashmir are subordinated to the larger interests involving the management of a ‘hostile’ population and the security of the nation. Hence these extraordinary measures.”

(Shakir Mir is a freelance journalist who has reported for the Times Of India and The Wire, among other publications. He tweets at @shakirmir. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)