Preventive Detention in Counter-Insurgencies: the Case of Kashmir

Home , Omar Abdullah, Sheikh Abdullah, Stone pelting in Kashmir, Yasin Malik

COMMENTARY PREVENTIVE DETENTION IN COUNTER-INSURGENCIES: THE CASE OF KASHMIR

Preventive Detention in Counter-insurgencies: The Case of Kashmir

MOHMAD AABID BHAT*

ABSTRACT This paper offers an analysis of preventive detention in the context of the disputed territory of Jammu and Kashmir. It primarily explores the covert objectives behind the use of a preventive detention law, namely the Public Safety Act in Kashmir. It explains how this law has been used as a political tool by authorities to achieve their ulterior motives, which diverge from the phi- losophy of detention, i.e. the rehabilitation of the prisoners. This paper seeks to answer two main questions: firstly, why is preventive detention being used abusively in Kashmir, and secondly, how and why has it persisted despite widespread condemnation and accusations of human rights abuse.

Introduction Indian administration tried to de- limit the sphere of armed insurgents he disputed territory of Jammu believed to be sent from Pakistan. and Kashmir (J&K) has been Dhakal categorizes the counterinsur- Tengulfed in a protracted armed gency (COIN) campaign launched conflict between two nuclear pow- by India in the disputed territory ers –India and Pakistan– for the past of Jammu and Kashmir into two seven decades. The part under In- distinct phases, from 1989 to 2000 dian administration is called Indian (Phase I), and 2000 onwards (Phase Administered Kashmir (IAK), and II).1 Phase I involved the iron-fist the part under Pakistani adminis- approach, which was militaristic in tration is called Pakistan Adminis- nature. India’s iron-fist approach is tered Kashmir (PAK). The conflict evident in the military operations took a serious turn in 1989, with that were in place, namely the oper- 2 3 the rise of an armed insurgency in ations Shayak, Vijay and Eraze, and * Jamia Millia 4 IAK. The insurgency went through Parakram. However, these militarist Islamia, India various ebbs and flows, and the In- tactics could not annihilate the core Insight Turkey dian state actively sought to contain of the insurgency. Therefore, a shift Vol. 21 / No. 4 / this insurgency at many levels. The towards a mixed approach of COIN 2019, pp. 53-68

DOI: 10.25253/99.2019214.04 2019 Fall 53 COMMENTARY MOHMAD AABID BHAT

tary operations were implemented to The Indian government annihilate the armed insurgents and to instill fear among the population resorted to harsh tactics to to keep them from supporting the control the public outcry. insurgents. These militaristic opera- The methods employed were tions reduced the number of armed insurgents considerably. Consequent numerous and diverse to this, the WHAM approach was utilized to further detach the population from supporting the insurgency. An has lately been observed. This ap- environment of free and fair elections proach includes Winning Hearts and was emphasized. In the early 2000s Minds (WHAM) along with the mili- resistance was at its lowest point, and taristic operations. remained so until 2008, when the illegal transfer of land to the Shri Am- David Galula, a counterinsurgency arnath Shrine Board (SASB) evoked theorist, emphasizes the role of the widespread public condemnation, civilian population as an insepara- including massive civilian protests ble element in any COIN campaign.5 against the perceived political intent He argues that the success of COIN of this act.8 Objections to the illegal operations depends upon weaken- transfer of land9 united the people, ing the bond between the insurgents and strengthened their efforts to and the local people, thus deterring oppose any idea of changing the de- civilians from supporting the insur- mography of the state of Jammu and gency. As far as the case of Kashmir Kashmir. is concerned, the support of people to insurgents and insurgency did not The Indian government resorted to wane, which could be recognized harsh tactics to control the public from the high level of support6 insur- outcry. The methods employed were gents received from the population. numerous and diverse. Recognizing In Phase II of the insurgency, a no- the changing nature of the insur- ticeable decrease in the involvement gency in Kashmir –from diminished of armed rebels, but an increase in armed resistance to an increase in the involvement of civilians, assum- unarmed civilian resistance– the state ing the form of a ‘total insurgency’ of maneuvered its tactics to gain control the entire population, was seen.7 over the civilian population participating in the resistance movement. In order to understand this transfor- One such tactic involved detaining mation, the background of the con- people under a preventive detention flict, and the Indian state’s responses law, the Jammu and Kashmir Public to the insurgency, which aimed to Safety Act (PSA). limit the involvement of the civilian population, should be considered. This paper explores the possible As mentioned above, several mili- psychological rationale behind the

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Indian paramilitary soldiers patrol on a street during a curfew in Srinagar, Kashmir on August 8, 2019, after the Indian government has suspended internet and schools and colleges across the Kashmir valley. FAISAL KHAN / AA Photo

Indian state’s excessive use of pre- colonial Kashmir to put the members ventive detention law. This study uti- of the Quit Kashmir Movement un- lizes Michel Foucault’s concept of dis- der preventive detention. It was later positif in the context of the disputed replaced by the Preventive Detention territory of Kashmir to establish a Act of 1954, which was a temporary relation with the state’s psychologi- provision only intended for a dura- cal rationale. Dispositif refers to the tion of five years. However, prior to institutional, physical, and adminis- its expiration, it was amended and trative maneuvers by the authority in replaced by the Preventive Detention such a way to be used for their own Act of 1958. This Act underwent a purpose (i.e. to enhance the control series of amendments until the en- and power). Lastly, it utilizes framing actment of the Jammu and Kashmir theory to explore the method that the Public Safety Ordinance in 1977 by hegemonic state uses to contain the Sheikh Abdullah, then Chief Minis- psyche of the Kashmiri population as ter. A few months later, in 1978, this another form of thought control. ordinance was transformed into the Public Safety Act.10

History of Preventive Detention The latest PSA, promulgated in 1978, Law in Kashmir provides for the administrative detention of a person without trial for The roots of the PSA can be traced a maximum of two years for acting back to the Public Security Act, against the “security of the state,” and which was implemented in 1946 in for a period of one year for a person

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“acting in any manner prejudicial to fake encounter.” Since then, this law the maintenance of public order.”11 has continued to be grossly abused. However, further amendments were It has become the norm to detain ci- made in 2012 which allowed for the vilians under this Act, which can be maximum time period in the former seen in its indiscriminate use by the case to be substituted by “six months,” successive governments in power. which may be extended up to two The Act has become a disempower- years. Also, in the latter, the time ing and coercive instrument of the period was substituted with “three state, utilized to indiscriminately tar- months,” which may be extended to get political opponents –or whoever twelve months. The deputy commis- the authorities wish to target. sioner or the district magistrate is the executive authority who maintains the power either to reject or to accept Law and Counterinsurgency: the recommendations submitted by Indiscriminate Usage of the PSA the police. in Kashmir

The rationale of the PSA, as acclaimed Muni explains the various strategies by Sheikh Abdullah, was to book tim- used for counterinsurgency.13 He ber smugglers under this Act in order argues that one strategy is to utilize to protect the forest ecosystem; but various legislations to reduce the the covert political motives came to sphere of the insurgents. This strat- the fore when the Act was invoked egy has been utilized in the recent for the first time to achieve political past in Jammu and Kashmir against gains. Ghulam Nabi Patel, President the backdrop of the uprising in 2008. of Kashmir Motors Drivers Associ- The indiscriminate use of the PSA by ation (KMDA), had supported the the state administration is evident Janatha Party against the National from its ever-increasing statistics. Conference Party in the state elec- Measuring the scale of preventive de- tions of 1977 and was subsequently tention in Kashmir, it was found that incarcerated under the PSA by the J&K prisons contained 11.5 percent Abdullah government. Eventually, of such detentions in 2008 alone, 14 this legacy was adopted by successive times higher than the national aver- regimes, which detained members age.14 In a reply to the request seeking of Jamat-i-Islami, a religious and so- information of detainees under the ciopolitical organization in Jammu Right to Information Act (RTI), the and Kashmir, to clear the political state’s Home Department acknowl- opposition.12 edges 16,329 cases of PSA registered since 1988.15 The Kashmir Bar Asso- Similarly, in 2008, the state admin- ciation contests this figure, giving an istration resorted to this Act and estimate of 40,000 cases of PSA reg- invoked it against the civilians who istered since 1989. These numbers protested in the backdrop of the remain contested. In another RTI “Shopian rape case” and the “Machil request filed by JKCCS, a civil soci-

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ety group based in Srinagar, Kashmir, seeking information regarding the The objective of annihilating cases involving the PSA, information on only 5,597 cases was provided. the resistance is achieved This all proves that major discrepan- through a strategy of cies exist in sharing basic informa- perpetual imprisonment, tion concerning those affected by the PSA. Moreover, it shows the author- which aims to transform the ities’ lack of seriousness and lack of resistance into obedience and accountability toward maintaining accurate information regarding such docility cases. The incredible increase in the number of cases became conspicu- ously evident during the subsequent to monitor the ground situation in years of the uprising. Amnesty Inter- 2011 and the recent exhaustive re- national revealed in their 2011 report port by the United Nations Office that J&K Home Department had pro- of Commissioner for Human Rights vided details of 334 persons booked (OCHR) in 2018. under the PSA in the short span between January 5, 2010 and February In 2019, the PSA was used in the af- 14, 2010.16 A 2012 estimate by the termath of the attack on the Central Economic Times reports 617 cases of Reserve Police Force (CRPF) which PSA in 2010 alone.17 killed 40 personnel. 500 arrests were made in response, including mem- The cycle of arrests has continued. bers of Jamat-i-Islami, the Hurriyat After the killing of Militant Com- conference, and the Jammu Kashmir mander Burhan Wani in 2016, the Liberation Front (JKLF).19 In addi- government put serious restrictions tion to this law, the Unlawful Ac- on the movement of people, even tivities Prevention Act (UAPA) was disallowing them to participate in utilized to ban certain sociopolitical funeral prayers for loved ones. The organizations such as Jamat-i-Islami very next day police and paramili- and the JKLF. Use of the PSA was not tary forces resorted to killing about confined to the Jamat-i-Islami activ- 17 civilians. The protests took the ists alone, but was extended to their shape of a full-blown uprising. In families as well, as the children of order to limit its sphere, about 660 activists were also booked under this persons were detained under the law.20 PSA in 2016 and reports estimated about 360 cases of preventive deten- Analyzing its indiscriminate usage, tions in 2017.18 The disproportion- it can be said that the utilization of ate use of this law found a mention the PSA has been so arbitrary that it in the report documented by a three violates its own constitutional man- member team of interlocutors sent to date. Although it was made clear in Kashmir by the Indian government the amendment of 2012 that children

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A Kashmiri woman requests passage during a curfew in should not be detained under the named Tanveer Ahmad was booked Srinagar, PSA, this clause has been markedly under the Act in 2016.24 Faizan Ra- Kashmir, India violated. Babbar Qadri, a lawyer who feeq Hakeem, booked under the PSA, on August 6, challenges cases of the PSA in court, received international attention after 2019. estimates the number of children de- being highlighted by the Amnesty FAISAL KHAN / AA Photo tained under the PSA at more than International. A fact-finding team 1,000.21 of Indians has recently been to the Kashmir valley and returned with the In fact, there are several cases of In- horrifying figure that up to 13,000 dian authorities arresting children men and boys had been arrested.25 and falsely writing down their age. This practice, therefore, is deeply em- In 2010, Sheikh Akram, Harris Ra- bedded in the Indian military strat- sheed, Omar Maqbool, and Mushtaq egy to wipe out future generations of Ahmad were booked under the PSA. the uprising. In 2011, Mohsin Majeed Shah and Burhan Nazir were booked under the Even more troubling, the extreme na- PSA.22 Rayees Ahmad Mir was listed ture of state violence can be realized as 18 in the police dossier and booked through a case in which a physically under the PSA in 2016. Similarly, challenged Kashmiri was booked un- Tariq Ahmad, who was falsely iden- der the PSA for allegations of stone tified as 21 years old and lodged in throwing.26 Not officially recognizing Kathua Jail in Jammu, met the same its indiscriminate use and harmful fate. Zubair was listed as 22 years consequences, the state administra- old despite being a minor.23 Adding tion showed a lack of political will to to the list, another Kashmiri minor revoke the Act, as seen in the state-

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ment of then Chief Minister, who claimed that there was no need to re- The PSA enables the state 27 voke the Act. to impose surveillance in Ironically, the PSA is now being used Kashmir, with the aim of against those who were responsible subduing the resistance for bringing it into force, and who have long supported it. Farooq Ab- dullah, the former Chief Minister of the state of Jammu and Kashmir, Analyzing the operationalization of who did not identify himself with re- the PSA, it clearly violates the stan- sistance politics and who has been a dards of justice as mentioned under loyal ally of the Indian government in several international humanitarian Kashmir, was detained under the Act norms such as the International Cov- in the context of the de-operational- enant on Civil and Political Rights, ization of Article 370 on August 5, the Universal Declaration of Human 2019. This Article had guaranteed a Rights, and the Convention against special status to Jammu and Kashmir, Torture. It denies detainees’ various providing it the right to have its own rights such as being informed of the constitution and the power to make reasons for arrest, access to judicial laws on all matters except for de- authority, judicial review, and the fense, communications, and foreign right to a fair trial. It maintains pro- affairs. This specific Article rendered visions biased toward the side of the the Indian Constitution in the state police, and gives them immunity of Jammu and Kashmir non-appli- from prosecution.28 This feature pro- cable. The Indian Parliament’s uni- motes injustice and encourages police lateral decision to abrogate Article officials to go to any extent to detain a 370 is considered illegal by legal lu- person under the PSA. In this context, minaries and human rights activists. fabricated First Information Reports As a result, the Indian Government (FIRs), biased judgements, vague rea- endured an acrimonious response sons, and unsubstantial evidence are from the people of Kashmir. After rampant in the PSA dossiers.29 de-operationalizing Article 370, the indigenous constitution of the state While the PSA has come under vocal of J&K was rendered inoperative, criticism for being a ‘lawless law’ by although some legislations were re- authorizing all kinds of humanitarian tained by the Indian government in and legal abuses, it should also be crit- its newly framed Jammu and Kash- icized for its overwhelmingly negative mir Reorganization Act of 2019. One impact on detainees. For instance, such retained Act is the PSA, which children who are released following the Indian government has used to detention suffer from several mental detain people it perceives as influen- disorders, including violent outbursts. tial in mobilizing the people against In addition, feelings of depression, so- the reorganization. cial withdrawal, anxiety, fear, worth-

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legislation supersedes human-centric In the politically sensitive legislation such as the Juvenile Justice Act. This critical situation of human Kashmir, the rhetoric of rights abuse in Kashmir by the Indian the “public order” and the state and state authorities represents “security of the state” are the denial of even a semblance of human rights to the people of Kashmir. being used by the state to gain legitimacy for its harsh tactics Why Detention?

Considering the brutal behavior of lessness, etc. are being experienced the Indian state and state police au- by detained children who underwent thorities, it is important to analyze different forms of torture during their why the government is relying so detention. The severity of their dis- heavily on preventive detentions. The tress can be evidenced from the state- police and paramilitary officers enjoy ment of one child detained under the a virtual culture of impunity in the PSA: “Now I won’t pelt stones, now I face of gruesome human rights viola- want to wear an explosive laden jacket tions, including killings, torture, and and blow myself up.”30 Commenting enforced disappearances.34 To main- on its barbarity, former union law tain some semblance of legality, the minister Ram Jethmalani referred to military and police rely on preventive the PSA as “something we have not detention. This is equivalent to ‘kill heard of even in Nazi Germany.”31 the snake and save the stick’ strategy. In other words, the state wants to kill In addition to the PSA, there are a or to gain control over the resistance number of laws which provide a cul- on one hand, and at the same time it ture of impunity to the Indian army. wants to present itself as benevolent More specifically, the Jammu and by feigning democracy. The objec- Kashmir Armed Forces Special Pow- tive of annihilating the resistance is ers Act (AFSPA) of 199032 encourages achieved through a strategy of per- and emboldens the Indian army to petual imprisonment, which aims to exercise their power in a brutal way. transform the resistance into obedi- It is seen as a “symbol of oppression, ence and docility. The other objective object of hate and instrument of de- is to escape from outright condemna- struction and highhandedness.”33 tion as a brutal state and project itself Given the behavior of the Indian as a democratic country; thus, the military and the police in Kashmir, it use of this lawless law is justified by can be said that the military institu- making it a dispositif for prevention. tion has maintained a carte blanche. This is achieved through rhetorical The power of the judiciary has been legitimation. Rhetorical legitimation usurped, which can be affirmed refers to an explanation used by the through the fact that military-centric hegemonic bureaucratic authorities

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to justify their repression, which in detainees are put under surveillance, this case is perpetrated by using PSA as in the panopticon.37 This instills a legislation under the façade of main- consciousness in the detainee that he taining public order. is being watched always by an authority –creating fear, mistrust and appre- hension. This may keep him from ex- Making “Docile Bodies” erting his own will, and promote his exhibition of behaviors correspond- Imprisonment is a form of control.35 ing to the objective of authority, but it States that either attempt to annex also deepens in him a sense of resent- territories or to subdue revolt often fulness and humiliation. utilize imprisonment as a strategy to weaken the will of the people to re- The PSA enables the state to impose sist. It does so by not only striking the surveillance in Kashmir, with the body, but also by affecting the soul of aim of subduing the resistance. The the detainees. Instead of using phys- unnecessary and excessive interfer- ical torture as a primary method, the ence with, and monitoring of, detain- body is subjected to deprivation, ob- ees by police and military personnel ligation and prohibitions, which can even after their release from prison, be seen in the form of rigid rules and makes detainees continue to exist in regulations during imprisonment. virtual confinement. The surveillance The aim is to coerce the detainee to becomes so pervasive that detainees behave in accordance with the ideol- openly claim to experience impris- ogy of the state. The authorities uti- onment without actually being in lize power to suppress the prisoners, prison. Also, their horrific treatment to make them submissive, to compel in prison –from forced cohabitation them to conform and to behave in the with criminals, to degrading and de- way the authorities want. meaning treatment inside the jails– is enforced with the intent of estab- Foucault describes this control as the lishing Indian authority and making interplay of three elements: knowl- Kashmiri citizens fear. edge, body, and power. The rela- tionship of these variables can be understood through the ‘political Rhetorical Legitimization: technology of the body.’36 It involves Making Dispositif for Prevention operationalization that uses neither violent methods nor terror, but rather Despite huge criticisms against the involves the use of knowledge (of the PSA law, what has prevented the state body) in such a way as to keep the and the present Indian dispensation subjects (i.e. detainees) under con- from removing it, even after making trol. This involves the subtle approach the constitution of J&K inoperative by of watch-their-every-breath, which transforming the region into Union can be achieved through techniques Territory? The first and obvious an- of surveillance and observation. The swer is that the Indian state treats

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inherence. Underneath, the objective Since the Indian state wants of the dispositif remains to orient citizens in a way that makes them well- to eradicate popular support suited to abide by the government’s for their struggle, every policies. Therefore, control is being attempt is being made to masqueraded as “order and security,” and is thus normalized. Hence, the discredit and delegitimize the state’s rhetorical legitimation provides struggle and movement of a justification for the sustained use of self-determination this repression. There is yet another factor which justifies the PSA’s use. Hyper-incar- Kashmir as a colony to be subdued. ceration as a strategy of counterin- Therefore, India does not care to do surgency is adopted meticulously; away with its colonizing tactics in or- because killings or other inhumane der to perpetuate its occupation. But, procedures would call for widespread to conceal its image as an occupying condemnation and challenge by an- force and to portray itself as a demo- ti-colonial constituencies and human cratic nation, an exaggerated framing rights defenders. Therefore, the state’s of the insurgents as ‘terrorists’ or ‘sep- reliance on relatively subtler tactics, aratists’ or ‘anti-nationals’ is created at least in its terminology, aims to by the Indian government to dele- justify their action, since such tactics gitimize the dissent. In the politically have also been used by anti-colonial sensitive Kashmir, the rhetoric of the powers as well. As argued by Khalili, “public order” and the “security of the this can be studied under the frame- state” are being used by the state to work of liberal counterinsurgency, gain legitimacy for its harsh tactics. In where the tactics are advertised as other words, the state articulates the more humane, more liberal, and ul- PSA with legitimizing rhetoric, (i.e., if timately as a technique for socially the situation is not controlled at this engineering the people.38 point of time, the detained people will emerge as a threat to the “public or- Preventive detention is one of the der” and the “security of the state”). most severe violations of citizens’ Thus the state has made the PSA as rights by a government. It takes away dispositif, ostensibly for preventive the liberty of an individual based on purposes, but actually to legitimize mere suspicion. Should it be consid- the activities that correspond to their ered legitimate that mere apprehen- own specific interests. This rhetoric is sion leads to the forfeiture of one’s ba- proffered in such a way that the “pub- sic rights? If not, then what makes the lic order” and the “security of state” persistence of this Draconian law in a are supposed to appear manageable by supposedly democratic setting? This implementing this Act. This rhetor- depends upon the tactics authorities ical legitimation has appropriated its are using to legitimize their actions,

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Indian police use tear gas to disperse pro-freedom protesters before leaving the site of clashes in Srinagar, Kashmir on March 20, 2019. FAISAL KHAN / AA Photo which could be explained how detain- stone pelter,” and an instigator who ees and the Act are perceived and de- motivated the youth to throw stones. picted by the police and executive au- It was mentioned that he provoked thorities. This can be studied through the populace by propagating “an- framing at two levels: the framing of ti-national sentiments.” For throwing detainees and the framing of the Act. stones against the police/CRPF nafri, he got FIRs registered under sections 147,39 148, 149,40 336, 307,41 153-A of Framing Detainees the Ranbir Penal Code (RPC).

That the detainees are framed as In another case, a person was charged dangerous by the police and execu- with offenses like raising funds for tive authorities is evident from the the terrorist organizations and under language used in the police dossiers. sections 307, and 33642 of the RPC. This alleged dangerousness provides The detention order was passed when the police and executive authorities the detainee was already in custody. a reason to maintain their brutal Further, the detainee was addressed behavior. Detainees are described with negativity as a “goonda (rogue in vague, foreboding accounts and person).” Another dossier highlights charged with offenses that are be- a person, a member of the resistance yond their strength and capacity, and group Tahreek-i-Hurriyat as “venom thus painted as dreaded criminals. against the public order.” Another For example, in one of the cases, a dossier represents a person who has minor was described as a “hardcore been arrested on charges of stone

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throwing as a “potential terrorist.” the people for the cause, the state uses This points out to the negative fram- the tactic of framing to sow mistrust ing being done by the police. The among the people. The purpose is to dossiers, which do not mention any divide the people and diminish their substantial evidence of terroristic determined efforts to achieve free- acts or tendencies, label detainees as dom. The militaristic and oppressive terrorists merely on throwing stones, attitude of the Indian authority is an which is a common phenomenon in a indication that India has, implicitly, conflict zone like Kashmir. understood that neither the land nor the people of Kashmir belongs to it This framing of detainees bears sin- and wants to control it by might. ister effects which can be studied at two levels. At the judicial level, an exaggerated framing may influence the Framing the Public Safety Act perception of judicial authorities regarding the detainee, and hence their Another factor which plays an im- judgment. At the level of the general portant role in the implementation populace, it may injure the image of and longevity of the PSA is how the detainees among the populace by now-imprisoned pro-Indian politi- associating them with negative attri- cal leadership perceived it and acted butes and criminal activities, as seen upon it. This can be analyzed from in the dossier alleging that a detainee how the PSA is being executed and affiliated with Tahreek-i-Hurriyat how the pro-Indian political leader- “looted cash from petrol pump au- ship in Kashmir frames it. This goes thorities.” Similarly, in another case, to the heart of any conflict in which the police referred to a 12 year-old the hegemon co-opts certain person- boy as “don.” Labeling them with alities for their nefarious purposes. such names prompts society to main- This is exactly what has been done tain a distance from them. This kind under the PSA. of framing undermines the presump- tion of innocence and furthers the The New Delhi government has influ- criminalization of detainees. enced the Act’s execution. Prior to the de-operationalization of Article 370, In a broader context, the consequences the PSA was a state law. Therefore, of this framing are not limited to de- although New Delhi had no direct in- tainees only, and may be extended to tervention on its execution, India al- those who associate themselves with ways dictated and patronized the state the Kashmir’s struggle for freedom. administration. The Indian govern- Since the Indian state wants to erad- ment pressured the state as to whom icate popular support for their strug- to detain under the PSA. This is ob- gle, every attempt is being made to servable in the case of Masarat Alam, discredit and delegitimize the struggle a pro-freedom leader in Kashmir. One and movement of self-determination. month after his release in March 2015 In order to diminish the support of after four and half years, he was re-ar-

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rested and booked under the PSA, which was invoked under the influ- The attitude the Indian state ence of New Delhi. It was only after the then Indian Home Minister, Rajnath maintains against Kashmir and Singh’s overnight addition of charges its dealing with the Kashmiris of waging war against the country is brutal and unconstitutional and charges related to sedition were included, which led to Alam’s re-arrest.43 In addition, the Chief Minister in 2013 subtly reiterated in the legisla- ferred 1,004 detention orders to the tive assembly that the state adminis- advisory board, and the board ap- tration had no free will in state affairs proved 99.40 percent of the cases. 81 but was influenced by the dictates percent of the cases that the board had from New Delhi. He related himself upheld were unable to withstand chal- with a “daily wager,” which shows his lenges in court and were quashed.49 state of powerlessness.44 It is also important to mention how Legal luminaries, activists, and hu- the people of Kashmir see their treat- man rights organizations decry the ment and framing by state officials. PSA as a “Draconian law,”45 “patently, Generally, the Kashmiris assess this manifestly, and demonstrably un- situation as an institutional denial of constitutional,46 a “political weapon,” justice, where state accountability has and a “weapon of collective state vi- vanished. The pro-military laws such olence.”47 In contrast, the pro-India as JKPSA and AFSPA, which provide political leadership in Kashmir has a culture of impunity, are seen merely defended using the PSA. During his as a means to concretize the military tenure as Chief Minister in Kashmir, occupation in Kashmir.50 This has re- Omar Abdullah maintained, “The sulted in eroding faith in institutions, Act has sufficient inbuilt safeguards making people reluctant to seek jus- including reference to an advisory tice from the Indian judiciary.51As a board set up under the Act to con- result, many people avoid the formal firm or recommend revocation of the judiciary or, if they are already in- detention order leaving no scope for volved, they usually ask the judiciary its misuse or arbitrary application by to setup commissions so as to expose any authority.”48 He thus endorsed its these institutions of the violence and existence as mandatory and rejected institutionalized denial.52 the demand for its revocation.

Not surprisingly, the Advisory Board Conclusion which Omar Abdullah touted to de- fend the PSA is almost non-functional. This paper has discussed how the law This can be gauged from the fact that had been used as a counterinsurgency between April 2016 and mid-Decem- tool in the disputed state of Jammu ber 2017, the state government re- and Kashmir. It offers an explanation

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of how a state can manipulate the ju- Jammu and Kashmir, but the Draco- dicial mechanism to achieve its own nian laws that were functional prior to ends. In this case, the Indian state has de-operationalization were kept intact exploited the PSA to silence dissent- with the aim to control the space of ing voices. dissent. This unilateral move of abro- gation of Article 370 was considered The PSA has been used as a means unconstitutional by many legal lumi- to control the resistance and polit- naries and activists and the Indian ical dissent in Kashmir. In order to government feared resistance by the achieve this objective, state author- Kashmiris. To prevent widespread re- ities have become so abusive that sistance from happening, 4,000 deten- whosoever rises up is being detained tions were made in just two weeks,53 under this Act, without the protection which include even members of the of any ethical or moral standards. This pro-Indian political leadership.54 shows how the state can act without giving any due consideration of, or The attitude the Indian state main- adherence to, the norms of justice. tains against Kashmir and its deal- Detainees are barred from any of the ing with the Kashmiris is brutal and provisions as enshrined in the inter- unconstitutional. It reveals that India national law. The only motive behind does not care about abiding by its this state of lawlessness is to neutral- own constitutional law, let alone the ize the resistance at any cost. international law and humanitarian norms of justice. Although this law has sparked widespread criticism from human rights organizations, nothing concrete has Endnotes been done to check its arbitrary use. 1. C. B. Dhakal, “Understanding Counterinsur- gency in Democratic Settings: Counterinsur- This indicates the lack of political will gency Success and Failure in Kashmir and Ne- by the authorities and their intent to pal,” Master’s Thesis, Naval Postgraduate School, utilize the PSA as a crutch to achieve 2014, retrieved from https://calhoun.nps.edu/ their political motives and interests. handle/10945/41368. 2. This operation was launched in 1993 to flush This act has been framed in such a out the militants from Sopore, a town in Kashmir. way that provides the authorities with 3. Operation Vijay was launched to drive back the the legitimacy to perpetuate its sus- invaders and regain territory in the Kargil sector, tained use. while Operation Eraze was launched to capture insurgents in the Northern part of Kashmir. 4. This was launched in 2001; it involves an in- If the application of the PSA is con- creased concentration of military along the LOC sidered vis-à-vis the recent event of to prevent infiltration and logistic support from revoking Article 370 through a pres- Pakistan to militants in Kashmir. idential decree, India’s sleight of hand 5. David Galula, Counterinsurgency Warfare: The- is revealed. Now, the Indian govern- ory and Practice, (Connecticut: Praeger Security International, 2006). ment gains direct control in Jammu 6. The support provided to the militants can be and Kashmir after de-operational- gauged by the number of people participating izing the indigenous constitution of in funerals, providing shelter to militants in their

66 Insight Turkey PREVENTIVE DETENTION IN COUNTER-INSURGENCIES: THE CASE OF KASHMIR

homes, and other cultural activities which involve enough-attention-is-paid-to-what-happens-to- celebrating the arrival of militants returning from young-men-after-a-stint-in-jail_a_23570671/? Azad Kashmir. ncid=yhpf. 7. This term is used by Balraj Puri (1993), referring 19. Shaswati Das, “Yasin Malik’s Jammu and Kash- to the massive support and participation of civil- mir Liberation Front banned,” liveMint, (March 22, ians in the insurgency in Kashmir. 2019), retrieved from https://www.livemint.com/ 8. Gautam Navlakha, “State Cultivation of Am- news/india/yasin-malik-s-jammu-kashmir-libera- arnath Yatra,” Economic and Political Weekly, Vol. tion-front-jklf-banned-1553261458535.html. 43, No. 30 (July 26, 2008), retrieved from https:// 20. Khalid Gul, “20-Year Old Bijbehara Boy Booked www.epw.in/journal/2008/30/commentary/ under PSA,” Greater Kashmir, (March 22, 2019), state-cultivation-amarnath-yatra.html. retrieved from https://www.greaterkashmir.com/ news/kashmir/20-year-old-bijbehara-boy- 9. Kashmir, prior to de-operationalization of Ar- booked-under-psa/. ticle 370 had a special status which made the Indian constitution in the State of Jammu and 21. Mohammad Owais Gurkoo, “More Than 1000 Kashmir non-applicable. The special status would Minors Booked Under PSA in Kashmir,” The Kash- bar any non-resident of Kashmir to hold property mir Walla, (May 9, 2013), retrieved from https:// in Kashmir. SASB was an outside entity and could thekashmirwalla.com/2013/05/more-than-1000- not get a permanent land in Kashmir, hence minors-booked-under-psa-in-kashmir/. termed as illegal transfer of land. 22. Juveniles of Jammu and Kashmir: Unequal be- 10. Haley Duschinski and Shrimoyee Nandihi fore the Law and Denied Justice in Custody, (New Ghosh, “Constituting the Occupation: Preventive Delhi:Asian Centre for Human Rights, November Detention and Permanent Emergency in Kash- 16, 2011). mir,” The Journal of Legal Pluralism and Unofficial 23. Terrorized: Impact of Violence on the Children Law, Vol. 29, No. 3 (2017), pp. 314-337. of Jammu and Kashmir, (Jammu and Kashmir: 11. See, Jammu and Kashmir Public Service Com- JKCCS, 2018). mission (JKPSA), (1978) Sec.18 (1/b) and Sec.18 24. Khalid Gul, “Minor Son Lodged in Kathua Jail, (1/a). Father Sans Resources to See Him,” Greater Kash- 12. Ruchika Bhaskar and Juri Srivastava, “An Un- mir, (September 29, 2016), retrieved from https:// publicized War: A Critical Analysis of the Public www.greaterkashmir.com/news/kashmir/minor- Safety Act and Its Aftermath on the Detainees of son-lodged-in-kathua-jail-father-sans-resource- Jammu and Kashmir,” World Journal of Jurist Polity, to-see-him/229644.html. (August, 2016). 25. “Estimated 13,000 Boys Arrested in Kashmir since India's Crackdown,” TRT World, (September 13. S. D. Muni (ed.), Responding to Terrorism in 27, 2019), retrieved from https://www.trtworld. South Asia, (New Delhi: Manohar Publishers 2006). com/asia/estimated-13-000-boys-arrested-in- 14. “India: A ‘Lawless Law’: Detentions Under kashmirsince-india-s-crackdown-30168. the Jammu and Kashmir Public Safety Act,” Am- 26. Fayaz Wani, “Specially Abled Youth Booked for nesty International, (March 21, 2011), retrieved Stone Pelting in Kashmir,” The New Indian Express, from https://www.amnesty.org/en/documents/ (December 3, 2017), retrieved from http://www. ASA20/001/2011/en/. newindianexpress.com/nation/2017/dec/03/spe- 15. In a response to an RTI filed by Mannan cially-abled-youth-booked-forstone-pelting-by- Bukhari, and the same was procured from him. police-in-kashmir-1717582.html. 16. “Lawless Law,” Amnesty International, p. 13. 27. “Public Safety Act in JK Not to Be Revoked: 17. Press Trust of India, “Jammu and Kashmir Omar Abdulla,” The Economic Times, (October 1, Government Booked 1,332 Persons Under Public 2013), retrieved from https://economictimes.in- Safety Act in 3 years,” The Economic Times, (March diatimes.com/news/politics-and-nation/public- 29, 2012), retrieved from https://economictimes. safety-act-in-jk-not-to-be-revoked-omar-abdul- indiatimes.com/news/politics-and-nation/jam- lah/articleshow/23366348.cms?from=mdr. mu-and-kashmir-government-booked-1332-per- 28. See Sec. 22 of JKPSA, 1978. sons-under-public-safety-act-in-3-years/article- 29. Gaurav Bhawani, “Rule of the ‘Lawless Law’: show/12453831.cms?from=mdr. Detentions under the Public Safety Act in Kash- 18. Azaan Javaid, “Kashmir’s Infamous Prisons Are mir,” Economic and Political Weekly, Vol. 53, No. 20, Destroying the State’s Troubled Youth,” Huffpost, (May 19, 2018), pp. 36-41, retrieved from https:// (October 25, 2018), retrieved from https://www. www.epw.in/journal/2018/20/insight/rule- huffingtonpost.in/2018/10/24/in-kashmir-not- %E2%80%98lawless-law%E2%80%99.html.

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30. Dilnaz Boga, “No Juvenile Courts in J&K,” Info- retrieved from https://www.indiatoday.in/india/ change, (December, 2009), retrieved from http:// story/srinagar-protests-masarat-alam-will-go-to- infochangeindia.org/children/172-children/ jail-says-rajnath-singh-249081-2015-04-17. features/8088-no-juvenile-courts-in-jak. 44. “Omar Abdullah’s Emotional Speech in the 31. “Ram Jethmalani’s Committee Keeps Date Assembly on the Death of a Young Boy in Baram- with Controversies in Kashmir,” The Economic ulla,” National Conference Media Cell, retrieved on Times, (August 9, 2012), retrieved from.https:// November 13, 2019, from https://www.youtube. economictimes.indiatimes.com/news/poli- com/watch?v=s2FV4akxuL0. tics-and-nation/ram-jethmalanis-committee- 45. “Lawless Law,” Amnesty International. keeps-date-with-controversies-in-kashmir/arti- 46. A. G. Noorani, as cited in Freny Manecksha, cleshow/15425630.cms?from=mdr. “The Public Safety Act Is a Political Weapon for 32. This act provides armed forces special powers the Government in Kashmir,” The Wire, (Decem- in a “disturbed area.” The security officials have ber 28, 2016), retrieved from https://thewire.in/ power to enter and search a place without war- government/public-safety-act-kashmir. rant; stop, search, and seize any vehicle or vessel 47. Shrimoyee Nandini Ghosh, “The Public Safety which may be suspected of containing any arms, Act Is a Political Weapon for the Government in ammunition, or explosives. This military privilege Kashmir,” Kashmir Ink, (March 1, 2017), retrieved safeguarded by the impunity law is exploited from http://www.kashmirink.in/news/perspec- which could be seen through a number of infa- tive/understanding-public-safety-act-psa--a- mous incidents that the Indian army was engaged weapon-of-collective-state-violence/289.html. in such as the Pathribal fake encounter, the Chat- C tisinghpora massacre, the Machilthe fake encoun- 48. Press Trust of India, “Act Not to be Re- ter, and the Kunan-Poshpora mass gang rape. voked,” Greater Kashmir News, (March 14, 2015), M retrieved October 1, 2019, from https://www. 33. Devyani Srivastava, “Rights-Based Critique of greaterkashmir.com/news/more/news/act-not- Y AFSPA,” in Vivek Chadha (ed.), Armed Forces Spe- to-be-revoked. CM cial Powers Act the Debate, (New Delhi: Lancer’s 49. Venkatesh Nayak and Shaikh Ghulam Rasool, Books, 2012), p. 65. MY “RTI Reveals Advisory Board Under J&K Public 34. Parvez Imroz, et al., Alleged Perpetrators: Sto- Safety Act Spent 75% Of Its Budget Upholding CY ries of Impunity in Jammu and Kashmir, (Jammu Detention Orders Which J&K High Court Quashed CMY and Kashmir: IPTK and APDP, 2012). Later On,” Commonwealth Human Rights Initiative,

35. Michel Foucault, Discipline and Punish: The (August 2, 2018), retrieved from https://www.hu- K Birth of the Prison, translated by Alan Sheridan, manrightsinitiative.org/blog/rti-reveals-advisory- (New Delhi: Penguin Books, 1991). board-under-jk-public-safety-act-spent-75-of-its- 36. Foucault, Discipline and Punish, pp. 24-26. budget-upholding-detention-orders-which-jk- high-court-quashed-later-on. 37. Foucault, Discipline and Punish, pp. 200-201. 50. Haley Duschinski and Bruce Hoffman, “Every- . Laleh Khalili, Time in the Shadows: Confine- 38 day Violence, Institutional Denial and Struggles ment in Counterinsurgencies, (Stanford: Stanford for Justice in Kashmir,” Race and Class, Vol. 52, No. University Press, 2013). 4 (2011), pp. 44-70. 39. This provision is related to punishment for 51. Shazia Ahad, et al., Torture: Indian State’s Instru- rioting. ment of Control in Indian Administered Jammu and 40. This section of the RPC provides that “If an of- Kashmir, (Jammu and Kashmir: IPTK and APDP: fence is committed by any member of an unlaw- 2019), p. 14. ful assembly in prosecution of the common ob- 52. Duschinski and Hoffman, “Everyday Violence.” ject of that assembly, or such as the members of that assembly knew to be likely to be committed 53. “Kashmir: 4,000 People Arrested Since August in prosecution of that object, every person who, 5 Says Report,” Huffington Post, (August 19, 2019), at the time of the committing of that offence, is retrieved from https://www.huffingtonpost.in/ a member of the same assembly, is guilty of that entry/kashmir-4000-people-arrested-august- offence.” 5-saysreport_in_5d5a54e6e4b056fafd0e25e9. 41. This section is related to attempted murder. 54. Muzamil Jaleel, “Three Weeks On: Politics Vac- uum in Kashmir Valley, Little Sympathy on Street,” 42. Act of endangering the life or personal safety Indian Express, August 26, 2019, retrieved from of others. https://indianexpress.com/article/india/jammu- 43. “Sedition Will Not be Forgiven, Masarat Will kashmir-article-370-mehbooba-mufti-omar-ab- Go to Jail: Rajnath,” India Today, (April 17, 2015), dullah-army-amit-shah-bjp-5936605/.

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CMY

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