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 pre- ventive detention law, namely the Public Safety Act in Kashmir. It explains how this law has been used as a political tool by author- ities 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 preven- tive 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 uti- lized 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 il- legal 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 partici- pating 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 54 Insight Turkey PREVENTIVE DETENTION IN COUNTER-INSURGENCIES: THE CASE OF KASHMIR 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 de- tention 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 2019 Fall 55 COMMENTARY MOHMAD AABID BHAT “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- 56 Insight Turkey PREVENTIVE DETENTION IN COUNTER-INSURGENCIES: THE CASE OF KASHMIR 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.