The UAPA and PSA are being used as tools of coercion in Kashmir

In recent times in Jammu and Kashmir, the UAPA and other anti-terror laws have been used against journalists, university students, mainstream politicians and others, all in the name of maintaining law and order.

At a demonstration at the Press Enclave in Srinagar on January 4, Mushtaq Ahmad demanding that he be given the body of his 16-year-old son, Athar Mushtaq, who was killed in an encounter on December 30, 2020. In February 2021, Mushtaq Ahmed and six others were charged under the UAPA for holding this demonstration.

From stifling political dissent and reining in civilian protesters to the recent phenomenon of cracking down on mainstream politicians, Kashmir is testimony to how India’s anti-terror laws are being used as a tool of coercion. Following the revocation of Jammu and Kashmir’s special status on August 5, 2019, there has been a marked increase in the number of instances in which the Unlawful Activities (Prevention) Act (UAPA), 1967, and the Public Safety Act (PSA), 1978, have been invoked in the erstwhile Himalayan State.

In 2019 alone, as many as 255 cases were registered in Jammu and Kashmir under the UAPA as per a report compiled by the National Crime Records Bureau (NCRB). It said that in 2019, Jammu and Kashmir saw the third highest number of cases registered under UAPA after Manipur (306) and Tamil Nadu (270). However, given the fact that there were also a substantive number of cases registered under the PSA, the arbitrariness with which anti-terror laws are being invoked in the Union Territory (U.T.) is unparalleled. In 2018, as the Bharatiya Janata Party pulled out of the Mehbooba Mufti government and the erstwhile State came under President’s Rule, 384 cases were registered under the UAPA in Kashmir.

The fact that in recent times the anti-terror laws have been used against journalists, university students, mainstream politicians and even young men playing cricket or an aggrieved father demanding the body of his son from the authorities only adds to the miscarriage of justice that is happening in the name of maintaining law and order and protecting sovereignty, no less.

Making matters worse for Kashmiris are the arbitrary detentions made under the PSA, a law the Jammu and Kashmir Assembly ratified in 1978 that allows the State (now U.T.) government to detain, without trial, “persons acting in any manner prejudicial to the security of the State” for up to two years. In addition, it allows detention for up to one year where “any person is acting in any manner prejudicial to the maintenance of public order”.

Since 1978, there have been an estimated 20,000 arrests in Jammu and Kashmir under the PSA, as per the findings of Amnesty International. This demonstrates that even as the mainstream political parties, the National Conference (N.C.) and the Peoples Democratic Party (PDP), are now raising the alarm about the misuse of the PSA and other stringent anti-terror laws, they were themselves facilitators of that culture of arm-twisting dissenters into silence. For example, over 1,000 arrests were made under the PSA between March 2016 and August 2017 (Mehbooba Mufti was Chief Minister for most of this period; she became Chief Minister in April 2016 and held the post until June 2018) as per an investigation done by the researchers Ayjaz Wani and Dhaval Desai. In July 2016, the Hizbul Mujahideen commander Burhan Wani was killed in an encounter by the security forces, which resulted in a popular backlash that soon crystallised into widespread civilian protests.

The fact that between 2008 and 2017, the Jammu and Kashmir High Court quashed as many as 1,706 detention orders, 215 of them in 2016 alone, further underlines the vague and unsubstantiated nature of the charges framed against the youths in the troubled region, who more often than not are from poor backgrounds. Former Chief Ministers Mehbooba Mufti and Omar Abdullah made copious use of the anti-terror laws against separatist elements, though they sometimes also granted amnesty to those who had been booked, as Omar Abdullah did in 2010 and 2012 and Mehbooba Mufti did in 2016.

In the altered political landscape of Jammu and Kashmir, the willingness of the authorities to exploit the anti-terror laws has been on bizarre display, with mediapersons being the new victims. In April 2020, two journalists in the Kashmir Valley were booked under the UAPA in quick succession. The first one was the photographer Masrat Zahra, who faced charges under the dreaded law for sharing what the police said was “anti-national” content on social media. When massive outrage poured in from all quarters, the police came out with a statement defending the move: “Cyber Police Station received information through reliable sources that one Facebook user namely Masrat Zahra is uploading anti-national posts…. Facebook user is also believed to be uploading photographs which can provoke the public to disturb law and order. The user is also uploading posts that tantamount to glorify anti-national activities and dent image of law enforcing agencies besides causing disaffection against the country.”

It is clear that as New Delhi cements political control over Kashmir, it is signalling to the journalistic fraternity that there will be less and less democratic space available to document the Kashmir conflict or speak of the government’s excesses. The officer in charge of the Kashmir Cyber Police later posted on Twitter a photograph that Zahra had uploaded on Instagram in 2018 showing Kashmiri mourners holding a portrait of Burhan Wani with a label in Urdu that read: “Shaheed Burhan Wani.”

The other journalist to be targeted that month was Gowhar Geelani. The police statement did not mention the specifics and simply said: “Cyber Police Station Kashmir Zone, Srinagar, has received information through reliable sources that an individual namely ‘Gowhar Geelani’ is indulging in unlawful activities through his posts and writings on Social Media platform [ sic ] which are prejudicial to the national integrity, sovereignty and security of India.”

The Narendra Modi regime and the Jammu and Kashmir administration under Lieutenant Governor Manoj Sinha are increasingly selling the idea of a “ naya Kashmir” and reiterating their commitment to facilitating grassroots democracy and ushering in equitable development. But the greater coercion being used against members of civil society belies such assertions.

Bizarre Shopian case

A bizarre case came to light on September 3, 2020, in Shopian. Twenty-four-year-old Syed Tajamul organised a cricket match on August 24 in memory of his slain militant brother Syed Ruban. He had also uploaded a Facebook post dedicating the match to the slain militant, whom he described as “a talented cricketer, admired by his friends for his love for the game and talent he had got”. After the match was over, the winning side took a photograph at Ruban’s grave. When the post and the photograph came to the attention of the Jammu and Kashmir Police, Tajamul and his associates were booked under the UAPA and put behind bars.

The charges were apparently deemed necessary in order to dissuade people from glorifying armed rebellion. “The individual (Tajamul) had distributed some jerseys and organised the event in the memory of his brother killed in 2019. As a result of this, a massive number of people had gathered to watch the cricket tournament. As of now, 10 individuals have been booked under the UAPA,” the police said on September 3. Ruban was a celebrated cricketer in his native Nazneenpora village before he joined the Al Badr militant outfit in July 2018. The forces killed him in an encounter six months later in Budgam.

There are other cases too that suggest that the police arbitrarily invoke the UAPA when charging people. In July 2020, the Jammu and Kashmir Police brought charges under the UAPA against a student of the University of Kashmir, Aqib Mushtaq Malik, in a two-year-old case. Aqib Mushtaq’s family maintained that he had no case or issue with the local police or the Army in his home town, South Kashmir’s Pinjoora village in Shopian, and said that they were shocked when charges were brought against him under the UAPA. They alleged that he was paying the price for “speaking against the university administration regarding some hostel issue following which he was called by the local police”. However, the police said: “Malik has been arrested in a 2018 case under the UAPA.” Sudhanshu Verma, Superintendent of Police, Hazratbal, Srinagar, said Malik was arrested after evidence had been collected against him.

Perhaps, the most brittle face of the administration came into display in February 2021, when the UAPA was invoked against a Kashmiri man, Mushtaq Ahmed, seeking the body of his 16-year-old militant son, Athar Mushtaq, who was killed on December 30, 2020, in an encounter on the outskirts of Srinagar. After the pandemic erupted in early 2020, the Jammu and Kashmir administration started the practice of not returning the bodies of militants killed in encounters to their families and having them buried in unmarked graves, presumably somewhere in North Kashmir. In February, Mushtaq Ahmed and six others, including his two brothers, were charged under the UAPA when they held a demonstration pressing for the body of his son.

The same month, N.C. leader Hilal Lone was booked under the UAPA. He had said at a public meeting that he was a proud beef-eater and planned to open an Islamic seminary to impart religious education even if those who passed out were called terrorists. Hilal Lone is the son of Akbar Lone, Lok Sabha member from Baramulla.

The U.N.’s concerns

These cases have captured the attention of advocacy groups across the world, and in February, a seven-member team of multiple Special Rapporteurs of the United Nations expressed “deep concerns” over the arbitrary use of the anti-terror laws and the National Investigation Agency against human rights defenders and journalists in Kashmir “aimed at discrediting their work”. On December 22, 2020, the rapporteurs noted in a letter addressed to the Government of India that the UAPA “authorises warrantless searches and individual arrests for up to 6 months when the person is designated as ‘terrorist’. Moreover, its broad scope makes it easily amenable to abuse.” The rapporteurs further said that New Delhi “has employed its counterterrorism financing oversight powers in a broad and arbitrary manner. The act would additionally contravene article 12 of the Universal Declaration of Human Rights and to article 17 of the International Covenant on Civil and Political Rights, ratified by India on 10 April 1979, which prohibit arbitrary interference in private matters including home and correspondence.”