Govt Reply to Faesal Plea Raises Worries About Kashmir Detentions

We finally have some answers about how people are being detained in Kashmir, and it makes for grim reading.

Several thousand people have been detained in Jammu and Kashmir.

(Photo: Kamran Akshter/The Quint)

Why was Jammu & Kashmir People’s Movement founder Shah Faesal stopped from flying out of Delhi? How was he moved to Srinagar and then detained? And what justifies his continued detention?

On 14 August, Faesal was stopped at the Delhi airport from boarding a flight to Turkey (on to Frankfurt, Germany and then Boston, USA), moved to Srinagar, and placed in a detention centre. A habeas corpus petition was moved on his behalf in the Delhi High Court on 19 August, which will be heard on 3 September.

Faesal is far from being the only Kashmiri who has been detained in the light of the abrogation of Article 370 and the reorganisation of J&K – new estimates indicate around 7,000 have been locked up. The information blackout and the reticence of the administration to give us any answers about the situation has meant that till now, we don’t really know how the government has justified locking up so many people, and what legal procedure has been followed for the same.

For instance, it was thought that the detentions were being carried out under the arbitrary J&K Public Safety Act and that this was used against Faesal as well, and was what had been indicated by the authorities to the press. However, contrary reports were coming from lawyers who’ve worked on detentions in J&K, who said even more arbitrary provisions of the Code of Criminal Procedure may be used instead.

So when the Centre was directed by the Delhi High Court to respond to Faesal’s petition, this became an opportunity to finally get some answers. Unfortunately, the government’s response, in an affidavit dated 23 August, leaves us with more questions than answers – including some for Faesal as well.

A Look Out Circular, a Tourist Visa and a Luxury Detention Centre

The government affidavit begins with a preliminary objection, that the Delhi High Court should not be hearing the habeas corpus petition as Faesal is in Srinagar, and the order for his detention was passed in J&K – which means only the J&K High Court has territorial jurisdiction.

The government goes on to claim that Faesal’s petition includes “falsehoods”, which “disentitles” him from approaching the high court with a claim of violation of fundamental rights, and then explains the basis for his detention.

The ‘Falsehoods’

• Faesal claims he was travelling to Harvard to complete an academic course there, but the only thing he has submitted to prove this is his Delhi-Turkey-Frankfurt-Boston ticket. The Bureau of Immigration says he obtained a 10-year B1/B2 visa from the US in February 2019, which is a tourist visa, not a student visa.
• It is “not conceivable” that a person who resigned from civil service and formed a political outfit, and has also filed a writ petition in the Supreme Court against the government’s actions in J&K, would leave the country to pursue some academic course at this time.
• Faesal claims he was not informed about the grounds of his detention, but the order of detention records that the grounds for it were explained to him. He was only detained after his refusal to furnish a bond/security under Section 107 of the Code of Criminal Procedure.
• The petition says Faesal is being held at a “detention centre”, but fails to mention that he is being held at the Hotel Centaur, “which is a posh hotel in Srinagar”.

The Basis for Faesal’s Detention

• The Intelligence Bureau (IB) issued a Look Out Circular (LOC) against Faesal on 12 August, based on a request from the J&K Police (CID Wing). It said Faesal was to be prevented from leaving India, and that if he did, the IB was to be informed.
• After Faesal was detained at the Delhi Airport, IB was informed. The J&K Police came to know about this and requested the Delhi Police to “ensure safe journey” of Faesal from Delhi to Srinagar.
• Upon landing, Faesal allegedly began to address a gathering of people at the arrival terminal of the Srinagar Airport. He then “started instigating the persons gathered there, against the sovereignty and integrity of India, having the potential of breach of peace.”
• The local police instructed Faesal to stop, but he continued. Faesal was then apprehended on the basis of a verbal order of the Executive Magistrate, First Class, Budgam under Section 107 read with Section 151 of the Code of Criminal Procedure.
• Faesal was told to provide a bond/security of Rs 50,000 for keeping the peace, but he refused. As a result, the Executive Magistrate passed an order detaining Faesal on 14 August, and said the matter was to be taken up again on 24 August.

The Questions We Now Have

Given the high profile nature of Faesal’s case, one imagines that the authorities would go about it ‘by the book’, as it were. However, there are several questionable aspects to the manner in which Faesal was detained, and if this is the way things were done in a case which was going to be in the spotlight, you have to ask how procedurally sound other detentions have been.

To be clear, this isn’t about the merits of the case.

Yes, it is difficult to understand how Shah Faesal was able to address a gathering of people at the Srinagar Airport, given restrictions on movement and the security presence at the airport which prevented politicians like Rahul Gandhi from doing any such a thing.

Nevertheless, what we should be concerned about is whether the manner in which Faesal has been detained has been in accordance with the law as it stands. After all, under Article 21 of the Constitution, no person – whether political prisoner or vicious stone pelter – can be deprived of their personal liberty “except according to procedure established by law.”

Here are five concerns that arise from the government reply that have potential ramifications beyond Faesal.

1. Why was Faesal sent to Srinagar after being stopped at the Delhi airport? How could this be done under an LOC?

According to the government affidavit, the LOC against Faesal said he was to be prevented from going abroad, and the IB then had to be informed of what had happened. Not only did it say nothing about detaining Faesal, it said nothing whatsoever about sending him to Srinagar.

Moreover, it was not even the IB who asked for him to be sent to J&K, but the J&K Police. Why? This is not specified. There is a vague reference to ensuring Faesal’s safety, but there was no report by him or otherwise of a threat to his life, so how could the  J&K Police suddenly decide that he was to be brought to Srinagar? And that too, one must add, without any transit remand order as is required to take someone across tate boundaries.

Nor can they claim that Faesal represented some threat to public order – by the government’s own admission, Faesal’s actions which threatened to breach the peace took place only in Srinagar Airport, not in Delhi.

Since when, exactly, have the police of one state acquired the power to pick up people from another state and cart them around when they have not committed an offence, are not (yet) a threat to public order, and have not consented to be transported? Is this how people detained in J&K have been transported out to Agra and elsewhere?

2. Did the Executive Magistrate issue Faesal a show-cause notice before asking him to provide a bond under Section 107, CrPC?

The affidavit submitted by the government includes the order of the Executive Magistrate (EM) from Budgam as Annexure R-2. According to this order, the Executive Magistrate received a police report that Faesal was addressing a “large gathering” at the Srinagar airport, and that he was “instigating against the sovereignty of the India” (sic).

The EM says he reached the airport and advised Faesal to maintain peace. He then informed Faesal about the police report and asked to execute a bond worth Rs 50,000 for a period of two weeks. Faesal refused, and then allegedly addressed the gathering and “incited them to raise anti-India slogans.”

What’s missing in this sequence of events are some procedural steps that may seem minor but are not. Whether we’re looking at the J&K CrPC or the Central CrPC, the EM has to issue a show cause notice in writing to the person. They cannot just call upon the person to furnish a security/bond immediately, without complying with the formalities, and without giving the person an opportunity to defend themselves.

The EM’s order makes it clear that they immediately demanded that Faesal provide a bond, without issuing a notice first. This raises serious worries that other detentions have also been conducted without obtaining necessary orders and without giving detainees a chance to explain themselves.

3. How was the reference to a ‘detention centre’ in the habeas corpus petition a deliberate falsehood?

The affidavit takes great exception to the fact that the petition says that Faesal’s wife met him at a “detention centre”, saying that the failure to mention this was at the Centaur Hotel was a deliberate suppression of fact and a “deliberate falsehood to gain sympathy”.

The thing is, it doesn’t matter how posh the Centaur Hotel is, it has been assigned as a detention centre of some 50 people in J&K since 5 August, and was even designated as a ‘subsidiary jail’ on 24 August. A gilded cage is still a cage, and that is indeed the case here as well. If a person is being deprived of their liberty, it does not matter how posh the prison is, it is still a prison.

Not only is this not a falsehood, it is difficult to see how the government thinks this misstatement is grounds to stop him from approaching the high court for protection of his fundamental rights.

How many other persons are being denied the ability to approach the J&K High Court or other high courts on the basis of unjustified allegations of falsehoods?

[You can read an article in The Hindu here about how the Centaur Hotel has been used as a detention centre and has now been designated as a ‘subsidiary jail’.]

4. Why won’t the government provide a copy of the LOC to Faesal’s lawyers?

On Wednesday, 28 August, Shah Faesal’s lawyers submitted a request to the Delhi High Court asking for a copy of the LOC, arguing that they did not know the grounds on which the LOC had been issued. The government has contested this, and has been asked by the Delhi High Court to respond to Faesal’s request.

It is unclear why the LOC is not being shared, especially since Faesal isn’t being accused of any terror-related activities, and instead the events at the Srinagar airport are being used to justify his detention. Regardless of the merits of why the IB requested the LOC, Faesal has a right to know why he’s not being allowed to leave the country.

This refusal to share basic information has been a problem in J&K even before recent events, with the UN Office of the High Commissioner for Human Rights and NGOs like Amnesty having called out how this is a common practice with detentions in J&K. How many people apart from Faesal are being stopped from travelling and moving freely without being told why?

5. Why did Faesal not have a student visa? And does this matter?

This is something that Faesal will need to explain – how could he be going for a second year of a Masters in Public Administration course in Harvard without a student visa? It is strange that his lawyers have not yet submitted any letter from Harvard confirming he was supposed to be travelling there to enroll in his second year they claim.

Instead, they have submitted a letter by Harvard alumni which says he is a student at the Harvard Kennedy School, and shows he is a Fulbright Scholar. Faesal’s lawyers have also not rebutted the government’s claim that he only had a tourist visa, not a student visa.

This does not in itself mean that Faesal is lying about his alleged reasons for travel – it may just be that he was travelling to Harvard to discuss his enrollment, and would only join the course later. And yet, even if there is something wrong here, that’s not exactly a relevant legal point here. Sure, it could affect his public standing, but it’s only relevant if his ‘real’ reasons for travelling abroad were the basis for his detention.

However, the affidavit says nothing of the sort. Unless the LOC says something about this, there is no cause for the affidavit to talk about Faesal’s reasons for travelling, and the surmises about how inconceivable it is that he would go abroad at this time are equally irrelevant. The worry, again, is how many orders are being passed for detentions and deprivation of liberty on legally irrelevant grounds – which is a serious miscarriage of justice.