Abdullah, Mufti, Thousands Detained in J&K – But Under Which Law?

Cameraperson: Sumit Baudh

In addition to the news that Congress MP Ghulam Nabi Azad was sent back from Srinagar Airport to Delhi, it has also been learnt now that at least 500 people have been detained by the authorities in Jammu and Kashmir over the last few days. According to the Greater Kashmir newspaper, the figure is closer to 550.

These include not just political figures like former chief ministers Omar Abdullah and Mehbooba Mufti, but also business leaders like Mubeen Shah and even the President of the Kashmir Bar Association, Mian Qayoom.

However, these people have not been arrested after committing any offence, like instigating riots or protests against the government’s moves to end J&K’s special status and reorganise the erstwhile state. Mufti and Abdullah, for instance, were detained on 4 August, a day before the government announced these moves. What’s happening, therefore, is preventive detention.

So on what basis are all these people being detained? Have they been informed of the grounds for their detention? Can they challenge this? And how long exactly can they be kept interned like this?

Preventive Detention Under the Jammu & Kashmir Public Safety Act, 1978

The government has not announced the basis for the detentions, and the communications blackout from the erstwhile state has prevented their families or supporters from giving out the reasons either. Even reports by national and international news agencies have not specified the grounds for their detention.

The Quint has learnt that the detentions have been made under the Jammu & Kashmir Public Safety Act, 1978, one of the state laws that was not repealed by the government when reorganising the region.

When can preventive detention take place under this Act?

Under Section 8 of this Act, the government of J&K (currently under the Centre as President’s Rule is still in force) can detain any person if they think that it is necessary to prevent them from “acting in any manner prejudicial to... the security of the state or the maintenance of the public order.”

Do people detained under this Act have to be informed of the grounds for their detention?

According to Section 13 of the Act, the persons detained under the Act have to be informed of the reasons for this (which have to be recorded in writing) within five days from the date of detention. In exceptional circumstances, the grounds can be communicated to them within ten days.

This means that the government can refuse to provide Abdullah and Mufti, for instance, the reasons for locking them up, till 14 August. It should be noted that the government can deny providing any facts to the detainees which it considers to be against the public interest.

Can the detainees challenge the government’s detention orders?

Section 13 of the Act says that anyone detained under the Act has to be afforded “the earliest opportunity of making a representation against the order to the Government.”

Practically, such representations will only be heard when the matter is considered by the Advisory Board under the Act. Within four weeks from the date of the detention, the government is supposed to place every detention order before an Advisory Board for review.  The Advisory Board is supposed to confirm whether a person should be detained or not within eight weeks from the date of the detention.

Even when the detainees get a chance to make their case before the Advisory Board, they are not entitled to the help of a lawyer.

How long can people be detained under the Act?

Section 18 of the Act specifies the maximum period of detention, provided the Advisory Board decides to confirm their detention.

If their detention is confirmed to prevent them from committing any acts prejudicial to public order, they are to be detained for three months (from the date of detention), extendable up to one year.

If their detention is on the basis of a risk to security of the state, they are to be detained for six months, though this can be extended up to two years.

The government can revoke these orders at any point of time at their own discretion, otherwise a detainee is looking at at least three months behind bars.

Can this be challenged in any other way?

Friends and family of the detainees could file habeas corpus petitions in the Jammu & Kashmir High Court (which remains operational) or the Supreme Court to try and obtain their release, but unless the courts are convinced that the detention was perverse or unfair, they are likely to be told to follow the process under the J&K Public Safety Act to obtain their release.

This may prove to be easier for non-political figures as there appears to be little reason for them to be detained, especially since the government claims the situation is calm and it would be difficult to argue such persons will be a threat to public order in such circumstances. Of course, logistical obstacles exist for all of them given the restrictions on movement and communications in J&K.

Is this also the reason for Ghulam Nabi Azad being denied entry to the state?

The J&K Public Safety Act includes provisions allowing the government to designate areas as ‘protected’ or ‘prohibited’. Once this is done, they can regulate entry into these areas by all or any specific people.

However, it is unclear how they have designated the entire erstwhile state as protected or prohibited and thereby prevented Azad, who is Kashmiri, to get through the airport. This is something he should be able to challenge successfully in the Supreme Court as an unreasonable restriction on his freedom of movement.