Article 370: A Year On, Kashmiri Mans Family Despairs His Continued Incarceration Under PSA

PULWAMA, Jammu and Kashmir Abdul Rashid Mir, who had waited for 57 days and traveled 1,327 kilometers to meet his son Fayaz Ahmad, said that his ordeal did not end even after he reached his destination, Bareilly Central Jail in Uttar Pradesh.

The jail authorities, the 55-year-old Kashmiri said, made him wait for five hours outside the jail, and told him to speak only in Hindi, when he tried speaking to his 29-year-old son in Kashmiri from behind a plexiglass. 

Mir, who has never been to school and knows no other language, was dumbfounded until his 23-year-old daughter Zahida Jan said that she would translate. 

“There was an officer in civil clothes who was listening to our conversation and jotting it down in a notepad,” she said in a recent interview with HuffPost India. 

Ahmad was among the more than 7,000 Kashmiris, including politicians, activists, and minors, who were arrested before and immediately after the Narendra Modi government revoked Jammu and Kashmir’s (J&K) autonomy, guaranteed under Article 370 of the Constitution, on 5 August, demoted India’s only Muslim majority state to a Union Territory, and imposed a several months long lockdown and communication ban.   

Of the 7,357 taken into preventive custody since August 2019, Union Minister G Krishan Reddy said in March that 451 people were under preventive detention, including 396 under Jammu and Kashmir Public Safety Act (PSA), which allows for detaining a person without a formal charge and without trial for up to two years. 

65-year-old Ghulam Mohammad Bhat, who was detained under the PSA in July, 2019, died in a prison near Allahabad in UP in December. 

When contacted, V.K. Singh, the Director General of Prisons in J&K, did not comment on the total number of people who are still incarcerated in connection with the 5 August crackdown. 

Singh said that 930 people were released from prisons in J&K from 1 April to 23 July following a Supreme Court directive to decongest prisons, in the wake of the coronavirus pandemic, including some of those detained in connection with 5 August. 

HuffPost India reached out to the Principal Secretary in the Home Department of the J&K government, Shaleen Kabra, for more information, but did not receive any response. 

The J&K High Court Bar Association on 25 June submitted a representation letter to the Chief Justice of Supreme Court of India that said 13,000 persons from Kashmir were arrested under 107/151 of J&K Criminal Procedure Code, which allows for preventive detention, and hundreds were were booked under the PSA and lodged in jails in India. 99% of the more than 600 Habeas Corpus petitions filed before the J&K High Court at Srinagar remain pending since 6 August, the letter said .

The Supreme Court has been criticised for its lack of urgency in responding to mass arrests and continued incarceration of Kashmiris following the abrogation of Article 370 on 5 August. 

“Mass incarcerations in Kashmir after 5 August are a textbook case of lawfare,” said Habeel Iqbal, a trial lawyer in South Kashmir, as a play on the word “warfare.” 

“We didn’t see the judiciary coming to the rescue of the people who were at the receiving end of the executive high handedness,” he said. “The approach of the court has been very mechanical and casual in protecting the rights of the people of Kashmir.”

“It has been the toughest year for us,” said Mir, explaining how his son’s arrest had plunged his family into debt. 

Not only are they struggling to repay the loan of Rs 6 lakh they took from Jammu and Kashmir Bank to buy a tractor, which they rent for construction and agriculture purposes, they borrowed Rs 25,000 from relatives to survive. 

“I can only think about how and when my son will get out of jail,” said Mir. “We are tired now. We cannot bear this despair anymore. 

Slapped with PSA

Wajid Haseeb, Ahmad’s lawyer, said that he was arrested from his home in Pulwama district on 3 August 2019 and booked under the PSA on 8 August. 

The grounds of detention in Ahmad’s PSA dossier dated 8 August 2019,  which HuffPost India has seen, accuse him of being an “active stone-pelter” who was “instigating youth in stone pelting upto 2016.” “Your activities have been creating enormous hardships for the general public as they cannot lead a normal life because of the disturbances created by you,” it says. 

HuffPost India has previously reported how PSA detention orders often read the same, and the grounds for detention have the same vague language, even though the law requires officers to apply their mind before detaining a person. 

Ahmad has a Bachelor’s degree in humanities from Government Degree College Pulwama, and a Master’s degree in political science from the New Delhi-based Indira Gandhi National Open University (IGNOU) through distance learning, his family said. He had joined the widespread protests in 2016, when Hizbul Mujahideen commander, Burhan Wani, was killed , but he gave it up after his father fell sick in 2018 and it fell on him to take care of them, they said. 

 The journey to UP

On 1 October, Mir and Jan left their home with some cash, fruits and clothes for Ahmad. They traversed around 260 kilometres of mountainous road to reach Jammu from where they took a train to UP. 

Jan, who had traveled out of Kashmir for the first time in her life, said they took a general reservation in a UP-bound train and left for Bareilly that same evening. 

On reaching Bareilly after a 784 km long train journey, they went straight to the Central Jail, but were informed that the jail authorities were yet to receive any letter authorising the meeting and asked them to return the next day. 

Relatives and friends, they said, helped them find a hotel to spend the night in Bareilly. 

“I was afraid that we won’t be able to meet him after such a hectic journey,” said Jan. “I was feeling so uncomfortable that I couldn’t sleep the whole night. There was this constant fear that this is a strange place.”

Before they left for Bareilly, Jan said that it took them a week to get the authorisation letter from the J&K Police and the district magistrate’s office in Pulwama.

“We would go to the officials office every day ,” her uncle, Mohammad Ashraf Mir, added. “They would stick us with formalities. They would say the competent officer who will give you permission is busy with other official work.”

First meeting 

Before Mir and Jan were allowed to speak with Ahmad on 2 October, Jan said that the deputy jailer had warned them against speaking about the situation in Kashmir and asking about the condition in jail.  

Jan assumes her brother was told the same. 

In a conversation that lasted over 40 minutes, Jan said they kept inquiring about his health and he kept responding by asking: “How is everyone back home?”

“We were careful with our words,” said Mir. “There was this constant fear that we are being heard and watched.”

Mir said that he spent 40 minutes he had with his son analysing his body language and making sure he did not say anything that might get him into trouble with the authorities.  

“We only talked about how he is spending his time in jail,” he said. 

A four minute phone call

Ahmad’s uncle, Mohammad Ashraf, visited him in November but Mir said that he could not go back for a second visit because of his ailing health and the worsening economic condition in Kashmir.

They tried speaking with police officials in Pulwama to get permission to speak with Ahmad over the phone, but family members say no one listened to them. 

Then, on 25 May 2020, seven months after he spoke to him from behind a plexiglass, Mir received a phone call from a jailer informing him that he could speak with Ahmad.

“After a few minutes, the phone rang again and it was Ahmad. The call lasted only four minutes but it took away months of sadness,” said Jan. “It was a real Eid for us. 

In court 

Mir said they had traveled almost 10 times from Pulwama to Srinagar to enquire about the hearings in the J&K High Court, where they filed a Habeas Corpus petition in December 2019.

Wajid Haseeb, Ahmad’s lawyer, said the hearings were progressing at a rapid pace since December, and the matter was listed for a final hearing in March, but the coronavirus pandemic brought the proceedings to a halt. 

Since 23 March, when the High Court started conducting legal proceedings online over Webinar, Haseeb said there have been five virtual hearings in Ahmad’s case. He lets the family know about them a day in advance. 

“The system is testing us again and again. We spent our third Eid without him,” said Jan. “There is no one who listens to people like us who are crying for justice.”