“The Public”, “Public safety” and “Public Order” In Jammu and Kashmir
21 August 2020 12:16 pm
As a native of Kerala, I have the choice to cheer any country that plays in a tournament against India. It is purely a leisure sport for me and my freedom of expression to air my views is fully realized in my state. On the contrary, if a Kashmiri youth is watching an India-New Zealand cricket match, and if he decides to cheer for the New Zealand team, his innocent cheer may not be considered as his right to freedom of expression, but a slogan that reflects ‘anti-national’ sentiments and evidence that he is inciting a mob (his fellow cricket match viewers) against the sanctity of the nation-state. When I can easily switch my TV off and move on with my life, the Kashmiri youth can get arrested by the police under the Jammu and Kashmir Public Safety Act (PSA) and may be found in an interrogation centre with the army or police or paramilitary personnel. A cricket match could change his life for the worse.
This is not fiction, but a real incident that occurred in Srinagar in 2019.
If the aggressively enforced restrictions during COVID-19 lockdowns and quarantines have unnerved the sanity of most Indians, people of Jammu and Kashmir (J&K) have been living this reality for decades under the scrutinizing eyes of the Indian Army, J&K Police, and paramilitary personnel. The ‘normalcy’ in J&K is very different from the normalcy in other parts of India. The reason is not only the cross-border terrorism or the separatist movement or the other stereotypes that mainstream media forces us to consume regularly. It is the ecosystem in which an ordinary civilian lives in J&K.
Irrespective of people’s non-affiliation or sympathies to a particular group, separatists or militants in J&K, they do not enjoy individual liberties or even retain some control over their own life. An innocent child who decides to come out in the balcony can be hit by a lead pellet by the police force’s shotgun and lose eyesight forever, get incapacitated or sustain other serious injuries. If an ordinary person with neutral views goes to buy vegetables in the market, he still cannot prevent himself from being interrogated by the enforcement agencies. A family is sleeping peacefully at night, can still be obliged to entertain the nocturnal raids that authorities undertake without any notice.
Fear and uncertainty has overwhelmed the daily life of an average person in Jammu and Kashmir, for as long as s/he can remember.
The concepts of ‘national security’, ‘public order’ and ‘public safety’ were paramount to the Constituent Assembly that drafted the Indian Constitution. Individual liberties in the Indian Constitution are made conditional upon the safety of the society, and the nation as a whole. At the outset, the concept of ‘preventive detention’, which means the administrative detention of a person to prevent a crime, may sound like a harmless safety net for the greater good that may trump some minimal individual freedoms.
However, Indian preventive detention laws have not defined “public order” or “public safety” yet. It relies on the wisdom of the assigned detaining authority, usually non-judicial, to use their subjective judgment to identify ‘anti-social’ and ‘anti-national’ elements in the society. According to the Public Safety Act, which is the primary administrative detention law in Jammu and Kashmir, a District Magistrate or a Divisional Commissioner has the authority to issue a detention order on any individual that they deem as a threat to ‘public order’ or ‘public safety’. No proceedings, be it civil or criminal or legal, can be taken against the detaining authority for any actions taken by them in good faith. There exists an imbalance in the protection of fundamental rights of the law enforcer and those of the citizens upon whom the preventive detention law could be rightfully or wrongfully unleashed.
Administrative detentions take place without charge or trial and are a desirable alternative to the criminal justice system in J&K. The ease of its use, based on mere suspicion without having to provide evidence or undertake tedious investigative proceedings in a conflict territory like J&K, makes it quite appeasing.
The low conviction rates in J&K compared to the average conviction rate in India indicates that such arbitrary detentions may not necessarily lead to the establishment of guilt.
The law enforcers in J&K also employ incommunicado detentions, which means family members are not informed about the detention of the person. The detainee himself will not be told what their crime is nor would they get access to a legal counsel or be produced before the district magistrate within the stipulated time prescribed by the law. His existence and location will be unknown to the world.
The Association of Parents of Disappeared People (APDP) is a group of mothers and fathers in Jammu and Kashmir who started this organization out of pain, to demand answers for their children’s disappearance after they were unlawfully detained or arrested by the enforcement agencies. All they wish to know is the whereabouts of their children – whether they are alive or dead and possibly what crimes they had committed, if at all.
The immediate thought that would come to the mind of an average Indian would be “Well, it is Jammu and Kashmir, the hub of cross-border terrorism and terrorists. So, it is only natural that people are arrested on various grounds or even without any grounds”.
However, what is less known about J&K is the massive scale on which ordinary civilians including children are incarcerated without any criminal records in the name of public safety and public order.
Responding to a question in the Legislative Assembly of Jammu & Kashmir, the former Chief Minister of J&K, Mehbooba Mufti said that there were about 2400 PSA cases between 2007 and 2016. Between March 2016 and August 2017, 1,003 were people detained in J&K under the PSA alone. The number would be much higher after adding the detentions under other criminal and anti-terrorism laws. Amnesty International India reports about 8000-20,000 PSA arrests in two decades. While reading these numbers, please bear in mind that administrative detention was kept in the law books to be used sparingly in extraordinary circumstances.
After the abrogation of Article 370 in J&K on 5 August 2019, the Ministry of Home Affairs stated that there have been 5,161 administrative arrests in J&K between August and November 2019. It is commonplace that the official statistics are often much conservative than actual ground realities. Those arrested include elected political representatives such as the three former chief ministers of the state; at least 10 top leaders of regional political parties along with many middle-rung leaders and local leaders at the grass-root level; President, General Secretary and former Presidents of J&K High Court Bar Association, District Bar associations of Anantnag and Baramulla apart from many other legal experts; leaders of industries including the President of Kashmir Economic Alliance and Former President of Kashmir Chamber of Industries; human rights defenders including Right to Information activists, journalists, and at least 144 children.
If people representing the ‘public’ of J&K from every walk of life have been arrested in the name of ‘public safety’ and ‘public order’, whose public safety are we really talking about? Who is being protected from whom?
The larger majority of ordinary people in Kashmir who constitute the ‘public’ merely want to live a peaceful life and provide for their families. The Government, however, is constantly pushing the very ‘public’ into the radar of suspicion as a potential threat to ‘public safety’ and ‘public order’. It is converting the very ‘public’ into case files of PSAs and other arbitrary detention laws as rioters, stone-pelters, creators of terror, and offenders of the State without having proved its own credentials to make public safety a reality to the public in the last 40 years.
It is high time that we take a closer look at the exponential increase in incarceration rates in Jammu and Kashmir. Who are these jailed humans in J&K and on what grounds have they been incarcerated? Why are the prisons and interrogation centres in J&K overflowing in such a way that the detainees including minors with no proven criminal backgrounds are shifted to jails in Uttar Pradesh and Delhi?
The unlimited powers bestowed upon the law enforcement agencies in J&K without adequate checks and balances to evaluate such powers, along with the absence of legal remedies to hold them accountable for their arbitrary actions for the past 40 years, is a red alert in itself.
Historian Lord Acton’s words “power corrupts, absolute power corrupts absolutely” echo loudly across J&K’s territory when one listens to the stories of mothers and fathers, wives and siblings who scuttle from one gate to the other enquiring if their sons or husbands or brothers are in this detention centre or the other interrogation camp or any other prison.
It is crucial indeed to protect the territorial integrity and sovereignty of India. Yet the question remains – Have the castle walls become more prominent than the human subjects that the castle intends to protect?
Author: Litcy Kurisinkal is a Research Consultant focusing on human rights issues. She is a Public Policy Graduate from Harvard Kennedy School.
Disclaimer: The views expressed are those of the author’s and do not necessarily represent or reflect the views of Amnesty International India.
 Amnesty International India report “The Lawless Law” 2011, pg 5
 Response to Starred A.Q. No. 123, Jammu and Kashmir Legislative Assembly Budget Session 2017, www.jklegislativeassembly.nic.in/replies%202017/27th%20of%20 Jan%202017/Starred/2017-01-27%20123%20001_result.pdf
 Commonwealth Human Rights Initiative, No Rules, Sops For Ordering Preventive Detentions Under J&K PSA,
 Amnesty International India, Tyranny of a Lawless Law, 2019, https://amnesty.org.in/wp-content/uploads/2019/06/Tyranny-of-A-Lawless-Law.pdf, pg. 4
 Yashraj Sharma, “Omar Abdullah, Mehbooba Mufti, Shah Faesal, Mukhtar Ahmed, Muhammad Khalil”, Foreign Policy, 9 September 2019, https://foreignpolicy.com/2019/09/09/detained-in-kashmir/; “A 15-year-old Kashmiri Boy’s 70+ Days in an Indian Jail”, Medium, 21 February 2020, https://medium.com/@media_41618/a-15-year-old-kashmiri-boys-70-days-in-an-indian-jail-8b7ffba3c319; Menaka Rao and Anumeha Yadav, “Crackdown on lawyers narrows road to justice in Kashmir”, Al Jazeera, 25 September 2019, https://www.aljazeera.com/news/2019/09/crackdown-lawyers-shrinks-road-justice-kashmir-190920073101403.html; Majid Maqbool, “J&K Industrialist Who Received National Award From Vajpayee in Detention Since August 5”, The Wire, 30 January 2020, https://thewire.in/rights/jk-industrialist-who-received-national-award-from-vajpayee-in-detention-since-august-5; Shafaq Shah, “A Kashmiri in Bareilly Jail & Other True Stories”, Article 14, 1 May 2020, https://www.article-14.com/post/a-kashmiri-in-bareilly-jail-other-true-stories