On 7 February, news broke that former Jammu & Kashmir chief ministers Omar Abdullah and Mehbooba Mufti had been placed in preventive detention under the controversial Public Safety Act, or PSA, following six months of detention under the Code of Criminal Procedure.
The move raised eyebrows as both had been detained since the Centre’s decision to abrogate Article 370 of the Constitution, and had not made any public statements or instigated any agitations at the time – but there was little serious outrage over it.
However, the detention of the leaders of the National Conference and People’s Democratic Party, who come from the pre-eminent political families in the region, has now become much more controversial, after the grounds for their detention under the PSA were made public in several news reports.
The Quint has accessed copies of the detention orders dated 5 February, the PSA dossiers and the grounds for detention of both former chief ministers, both of whom have been slapped with the PSA to prevent them from posing a threat to ‘public order’.
We can confirm that all the bizarre grounds that were reported by newspapers like The Indian Express are in fact true – from Omar’s ability to get people to come out to vote, to Mehbooba being referred to by the masses as “Daddy’s girl”.
Here are all the strange arguments made to justify the booking of these political figures – along with some questions we need to ask about how such poorly drafted and ill-considered grounds can be used to keep them in preventive detention for up to one year without trial.
Omar Abdullah: The Mobiliser
The grounds of detention against Omar Abdullah allege that:
- There is an apprehension that sensitive statements by him could be used to incite violence in the region.
- He has been creating an environment of public disorder in Kashmir by “fanning the emotions of general masses against the Union of India, by way of instigating public with Twitter posts/Facebook against the unity and integrity of the nation.”
- He had made statements in July 2019 where he had said that if Articles 370 and 35A were abrogated, National Conference would raise protests against the State, and credible sources said that he also told the party workers and youth present that they should be ready for mass agitation if Article 370 were revoked.
- He posted “many provoking and instigating comments/ideas on social networking sites, so as to instigate common people against the decision of Parliament”.
These grounds are all sought to be justified by reference to the PSA dossier prepared against Abdullah. The initial statements in the dossier about Abdullah having considerable influence over people in the region are understandable, given that the police have to establish he has the ability to instigate trouble.
But the dossier soon devolves into baseless allegations of radical ideology, and some truly strange examples to indicate he is a threat to public order.
“An overview upon the activities of subject suggest that ideology of subject is favouring radical thoughts which has also turned into actions.”
There is no evidence mentioned for this claim that Abdullah favours radical thoughts. During his time in office, Abdullah was seen as a moderate and had always favoured stronger relations with central government.
Opinions and comments against Article 370 – a sentiment shared across Kashmir – which did not encourage violence, can hardly be considered radical, and no examples of such comments referring to violence or radicalism have been provided in the dossier.
“Despite the fact that subject has been a mainstream politician, he has been planning and projecting his activities against the Union of India under the guise of politics and while enjoying the support of gullible masses he has been successful in execution of such activities.”
Again, no evidence is mentioned of these activities against the Union of India, and which activities he had successfully executed. This vague and frankly insulting language towards the people of J&K for exercising their democratic franchise does not seem to offer any actual explanation of why Abdullah should be considered to be acting against India.
“These activities of subject [tweets/posts on social media] are highly prejudicial to the maintenance of public order and have a significant effect and influence upon the ideology of common people. This capacity of subject of influencing people for any cause could be gauged from this fact that he was able to convince his electorate to come out and vote in huge numbers even during peak militancy and poll boycotts.”
The Supreme Court of India has previously held in multiple cases that there must be some genuine link between the activities of a person and action on the ground to demonstrate a threat to public order. While it is good to see that the police seem to understand they need to do this, it is laughable that they should use as an example, Abdullah’s ability to get people to come out and vote even during difficult times.
Just showing the ability to influence people is not enough – especially when you can only show this has been used for good – there has to be some evidence of Abdullah using this to instigate violence, which the dossier fails to provide.
“After the historical decision taken by the Union of India for abrogation of Article 370 and 35-A of Indian Constitution, the subject has undertaken efforts for stoking anger so as to cause violent protests, thus effecting public order eg on 6 August 2019.”
It is very hard to see how this claim is justified. Abdullah was detained on the intervening night of 4 and 5 August, and has not been able to make any public speeches since then. His last tweet was at 1:14 am on 5 August, and none of his social media posts during the preceding night, when he was placed under house arrest, till the internet was blocked, instigated any violence.
In fact, Abdullah urged the people to remain calm and not take the law into their own hands.
Mehbooba Mufti: Daddy’s Girl
If you thought the Omar Abdullah dossier was suspect, wait till you get to the grounds of detention and the dossier against Mehbooba Mufti, who was chief minister of the state from 4 April 2016 to 19 June 2018.
The grounds for Mehbooba’s detention are much longer than those for Omar, and include several statements where Mufti, who succeeded her father as head of an alliance with the Bharatiya Janata Party ruling the erstwhile state of J&K, criticised the Centre and its policies. The grounds provided to Mufti for her detention include the following claims :
- Over the past 10 years and more, Mufti has “indulged in inciting violence thereby leading to disturbance in public order.”
- Despite improvements in the situation in Kashmir Valley in recent months, attempts have been made overtly and covertly to disturb public order.
- Given Mufti’s history of “provocative speeches and charged statements” she is a potential threat to public order.
The PSA dossier in support of these claims, which is mostly just a collection of statements made by Mehbooba Mufti over the years, is at times surreal, and at all times extremely worrying, as it equates any sort of criticism of government policy as a threat to public order.
Here are some of the most problematic aspects of the dossier:
“The subject is recognised as a hard headed and scheming person whose actions have been ranging from speeches glorifying militants to creating fears among majority population based on cheap politics among the masses of. The approach of the subject has been based on creating a chasm between the minds of the law abiding masses.”
The first problem with these statements is the descriptive language used here – which can hardly stand up in a court of law – without any actual evidence. Subsequent claims are followed with statements by Mufti which supposedly justify the claims, but that is not the case for these initial allegations.
The one statement which the dossier cites which has anything to do with militants merely says that every human, “even a militant deserves dignity after death” and says that we shouldn’t be surprised when relatives of those who have been mutilated by armed forces take up a gun. How this can be considered glorifying militancy is unclear.
“The genesis and the approach of the Peoples Democratic Party (PDP) has been of a dubious nature. The symbol of the said political party was taken from the election symbol of Muslim United Front (MUF), and the green colour of the party flag reflecting the radical origin of the same. The subject is a law graduate from University of Kashmir.”
These claims by the police against the PDP, a party formed by Mehbooba Mufti’s father, are incredibly disturbing. The MUF was never declared a banned organisation or a terrorist organisation, so why the usage of their symbol (even if true) is problematic is unclear. Furthermore, the inference that a green flag implies radical origin is dangerous and baseless profiling, and would mean any number of political parties in India are now radical, without any further evidence.
It is also strange that the PDP should suddenly be considered a radical party, which was not the case in 2014 when the BJP entered into an alliance with it to form the government in J&K. While PSA detention orders are passed by the relevant district/executive magistrate, Section 8 of the PSA itself states that these are decisions of the Government of J&K – which is currently run by Centre (which is ruled by the BJP).
It is also surprising that all the statements cited against Mehbooba Mufti, which go back over more than 10 years, were not considered a problem when she suceeded her late father as the chief minister of the PDP-BJP government in 2016.
The dossier cites two tweets by her to show her “instigating bent of mind” and one to reflect her “communal and divisive mindset”. The relevant section of the dossier is reproduced below.
The tweets in question merely express an opinion about the government’s actions in J&K. While the second one does say that “there is no other way but to oppose this illegal and unconstitutional onslaught on our dignity”, it does not instigate any violence, and as long as this is the case, it cannot be considered a threat to public order as per the Supreme Court’s jurisprudence.
The third “communal” tweet is one where she, a Muslim, is making a claim that a government action is intended to change the demographics of what used to be the only Muslim-majority state in the country. No reference is made to Hindus or other communities in it, and no insinuations are cast on any other community.
“The subject has been stoking gullible masses so as to create issues of disturbance in public order and demoralising security forces by making unscrupulous statements vis-a-vis the security exercises being undertaken for safety and security of common people.”
The tweets referred to for this claim are those from April 2019 by Mufti regarding restrictions on roads and highways in J&K. In both cases she is only stating an opinion, and the strongest language in them is when she says Kashmiris will be smothered and demorgraphics of the state changed “over my dead body”.
There is no law which says security arrangements cannot be criticised. The only restrictions on such speech can be those specified in Article 19(2) of the Constitution, none of which apply to these comments, as they did not lead to any disturbances on the roads over these issues.
“The subject is referred for her dangerous and insidious machinations and usurping profile and nature by the masses as “Daddy’s girl” and “Kota Rani” based on the profile of a historical medieval queen of Kashmir who rose to power by virtue of undertaking intrigues ranging from poisoning of her opponents to ponyardings.”
This is perhaps the most inexplicable line in the whole dossier, and betrays a surprising amount of misogyny.
After first talking about how Mufti has the ability to instigate the ‘gullible masses’, the dossier then says that the masses refer to her as “Daddy’s girl” because of her usurping nature. Now, what exactly Mufti has usurped is unclear, and how ‘Daddy’s girl’ is a reference to her dangerous nature is unclear – unless the J&K Police somehow think she had something to do with her father’s death.
If the masses consider her a usurper and someone insidious, then why would they follow anything she says?
What’s even more ridiculous about these claims is that the statements used to justify them include a tweet about why the Triple Talaq Bill was unnecessary since the Supreme Court had already declared it illegal, and another tweet about how Muslims are demonised in India (an example for which she refers to the beating of a senior Muslim man in Assam who was then forced to eat pork).
What do these statements have to do with Mufti’s dangerous, insidious or usurping nature? No explanation is provided.
After raising questions over her statements that even prisoners have fundamental rights (in the context of the quelling of a prison riot), the dossier then moves on to its most dangerous phase, saying:
“Criticising of government policies in a democratic setup is not a crime, but whipping up of mass hysteria based on details far away from truth intended to provoke disturbance to public order is worth to be culled for protection of safety, security of common people and development of nation.”
The examples of statements provided by the police to support how Mufti is not just criticising government policies, but instead attempting to create divisions in society, are staggering. These include a tweet about how the BJP has resorted to ‘slander and fascism’ since development has proved elusive, a tweet criticising the banning of the Jamaat e Islami, and one which says:
“Last I checked, we were a democracy. But this sounds like a diktat of Martial Law. After bringing Kashmir to the brink, the administrations are adamant on ensuring collective punishment for Kashmiris.”
None of these tweets suggest any protests, let alone any violent action. How such exercises of free speech can therefore be a threat to public order, remains entirely unclear.
Are These Reasons to Set Aside the PSA Detention Orders?
The process under the PSA states that these reasons for detention have to be placed before an Advisory Board within 4 weeks of being passed.
The Board has to review them and see if they are justified within 8 weeks from the date of detention, and can call for any additional evidence for the same during that time, including giving the detainee a chance to be heard. A detainee does not, however, have the right to take a lawyer with them.
It is rare, however, for the Advisory Board to set aside a PSA detention order as it is considered an executive action within the government’s purview, so that even if the grounds are flawed (like in Omar and Mehbooba’s case), they normally do not interfere.
Which means the detainee has to approach the J&K High Court or the Supreme Court of India. As high courts have extraordinary jurisdiction in such cases, they normally can’t go into the sufficiency of reasons before the process under the PSA (going to the Advisory Board) is followed. While the J&K High Court has struck down over 80 percent of the PSA orders which it eventually hears challenges to, this is normally at a much later stage.
The Supreme Court can look into the reasons at this stage itself under a writ of habeas corpus, which is probably why Omar Abdullah’s sister Sara Abdullah Pilot has already filed a petition there. However, in recent months, the court has proved reluctant to go into the grounds for detentions in J&K and instead suggested petitioners should approach the high court first.
Abdullah and Mufti, however, will be hoping that the baseless and extremely problematic grounds for their detention prove sufficient grounds for the apex court to strike down the detention orders.
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