Anadolu Agency via Getty Images People attend a protest in solidarity with Kashmir over the removal of Article 370 and the forced shut down of all communication means in the valley in Delhi, India on August 07, 2019.

NEW DELHI — There were days Supreme Court advocate Kamini Jaiswal did not quite know how to defend her clients who spent 23 years in jail for a crime they did not commit. “There was no evidence against them. NO in block capital letters,” Jaiswal said in an interview. “They had nothing, and when there is nothing, what do you argue?” But argue she did, for many years until last month when her clients — four Muslim men from Jammu and Kashmir (J&K) — were acquitted of charges of detonating a series of bombs that killed a total of 27 people in Delhi and Rajasthan in May 1996. “Their only fault was that they were Kashmiris. They were guilty of being from Kashmir,” Jaiswal said of her clients. “They are not seen as citizens of our country. They don’t get the same treatment anywhere, even in the Supreme Court.” Three of her clients returned home last week to Srinagar to find Kashmir under lockdown, and news that thousands of Kashmiris had been arrested and sent to prisons outside the state. Mobile services and the internet remain blocked in the Kashmir Valley, 31 days after the Narendra Modi-led Indian government announced the abrogation of J&K’s special constitutional status, bifurcated the northern state, and demoted it to a Union Territory. For Jaiswal, who also represented former Delhi University lecturer S.A.R Geelani who was sentenced to death for the 2001 Parliament Attack case before he was acquitted of all charges, the ingrained bias in the Indian judicial and police system, and the current spate of mass arrests, can only be countered by a clear legal strategy.

Their only fault was that they were Kashmiris. They were guilty of being from Kashmir.

Principles of natural justice While the Indian government has refused to put an estimate to the number of Kashmiris arrested since August 5 this year, local policemen have put the number between 2,000 and 4,000. Senior policemen have conceded that many of those arrested have been held in prisons outside the state, particularly in Uttar Pradesh and Haryana, both states are run by Bharatiya Janata Party (BJP) governments. Reports of raids say the Indian army and J&K police are taking away young men, even children, without providing any explanation to their families or revealing their whereabouts. A Delhi-based Kashmiri professional, speaking on the condition of anonymity, said that her uncle, a well-known businessman in Kashmir, was slapped with the Public Safety Act (PSA) on 10 August and sent to Agra Central Jail. The PSA allows for a person to be detained for two years without any judicial oversight. “We found out that he was in Agra jail because he was mentioned in the media, but what about the hundreds of others whose names do not appear. They don’t know if their sons, brothers, fathers are in Kashmir, or in Agra, or somewhere else,” she said. The news report she read, the woman said, referred to arrested individuals as “hardcore terrorists.” “They were labelling businessmen as hardcore terrorists. That really made us panic. He has no political affiliation. He is a very apolitical man,” she said. “Please tell us what he is in jail for. This is so scary.”

“Please tell us what he is in jail for. This is so scary.

Jaiswal said that these arrests and detentions are not only in contravention of principles of natural justice and fundamental rights of life and liberty, but also the PSA Act, which requires the authorities to provide grounds for arrest. Under the PSA, the lawyer said, the grounds for detaining someone must be given, the officer issuing the order needs to demonstrate proper application of mind, and the case must be placed before an Advisory Board for the detainee to challenge his confinement. “Has the government applied its mind to thousands of cases overnight?” she asked. “Even PSA requires principles of natural justice. This is in complete violation of the principles of natural justice.” Under the PSA, the officer who makes an order for detaining a person has to immediately inform the governments of its grounds, and no order can remain in place for more than 12 days without government approval. Further, the officer also needs to inform the detainee of the grounds of his detention within five days (10 days under extraordinary circumstances), and provide him the earliest opportunity to challenge the order. If the detainee is being sent to another city, Jaiswal said, the grounds should explain why. In its analysis of 210 cases of preventive detentions under the PSA, published in June, Amnesty International India found that “in many cases the grounds of detention mentioned in the police dossiers and in the PSA orders passed by the District Magistrate were identical which demonstrates non-application of mind.”

Has the government applied its mind to thousands of cases overnight?

Recalling A.K. Roy versus Union of India The Kashmiri woman said that her family had to call favours to establish that her uncle was lodged at the central jail in Agra and that he was safe. His family believes that a clean set of clothes and medicines have reached him, but they can’t be sure. They have not been allowed to speak with him. “Is this democracy? We are scared for him. We are scared for us. We are tormented all the time,” she said. “This is not the India that I grew up in. This is not the India that I want to be in.”

This is not the India that I grew up in. This is not the India that I want to be in.

Jaiswal said that these detentions were in contravention of the Supreme Court judgment in A.K. Roy versus Union of India, which was a group of writ petitions challenging the validity of preventive detention laws including the National Security Act, 1980. In his 1981 judgment, then Chief Justice of India, Y.V. Chandrachud, wrote, “We must impress upon the Government that the detenus must be afforded all reasonable facilities for an existence consistent with human dignity. We see no reason why they should not be permitted to wear their own clothes, eat their own food, have interview with the members of their families at least once a week and, last but not the least, have reading and writing material according to their reasonable requirement.” “It must be emphasised that a detenu is not a convict,” he wrote. Jaiswal said, “In A.K. Roy, the court said that even with preventive detention, detainees must be kept close to where their families can meet them. You cannot cut them from their roots.” The Supreme Court lawyer added, “In Kashmir, they are not even disclosing where detainees are being kept. What kind of a state is this? This is really an undeclared emergency that we are living in.”

This is really an undeclared emergency that we are living in.

Habeas corpus Prisons in India are horrifying places, with 150 to 600 percent overcrowding, and in the words of the Supreme Court, inmates living “like animals.” In Uttar Pradesh, according to government data, overcrowding stands at almost 70%. In 2015, The Times of India reported that the central jail and the district jail in capacity have a capacity of 1050, but house 2236 and 2175 inmates respectively. Jaiswal said that families of those who have been picked up have no choice, but to file a writ of habeas corpus, which means the state has to produce the body before a court. “Flood the courts with habeas corpus petitions,” she said.

Flood the courts with Habeas Corpus petitions.

At this point, with the curfew and communication blackout in place, it is hard for Kashmiris to carry on with their day-to-day routine, let alone seek legal counsel. It is hard to say when communication will be restored. Some say the Modi government is waiting for the onset of winter in Kashmir, in the hope that the harsh winter— to some extent — prevents people from mobilising and staging violent protests in large numbers. When communication is restored, Jaiswal says that one practical way of proceeding would be for an NGO (Non-Government Organisation) to file a collective habeas corpus petition. Communist Party of India (Marxist) — CPI(M) leader Sitaram Yechury has filed a habeas corpus petition in front of the Supreme Court, asking for Jammu & Kashmir Party State Secretary, Mohammed Yousuf Tarigami, to be produced. More than two weeks would have passed from the time that Indian Administrative Service (IAS) officer-turned politician, Shah Faesal filed a habeas corpus petition in front of the Delhi High Court on 19 August — a week after he was detained — and the time that his petition is heard in court. The Delhi High Court set the first hearing for 23 August, seeking a response from the Centre. The Centre is yet to file a response, and the court has extended the next hearing to 3 September, stating, “A week or 10 days will not matter.” Although two weeks was “not too much time,” Jaiswal said that the courts do not appear to be prioritising the matter. At a time when millions of people are under lockdown, Jaiswal said, judges needs to be proactive. “You don’t have judges like Justice Krishna Iyer and Justice (P.N.) Bhagwati. Today, you have judges who are looking at the executive for direction. I can’t think of a single judge who would consider these cases a priority,” she said.

You don’t have judges like Justice Krishna Iyer and Justice (P.N.) Bhagwati.

Damages? In its report based on 210 cases of preventive detention, Amnesty India found “71 cases of revolving-door detentions, where authorities had either issued a new detention order, or implicated a detainee in a new FIR, to ensure that they remain in detention.” Jaiswal says that there is always the risk that Kashmiris who have been detained on frivolous grounds or no grounds at all wind up getting implicated in false cases — like her clients. Those who are lucky enough to get released will come out embittered, disillusioned and vengeful, she said. When it comes to seeking reparations, Jaiswal said, “The law of torts and damages is in shambles.” In 2016, the Supreme Court rejected a plea for compensation from the six men who were acquitted in the 2002 Akshardham terror case in Gandhinagar, Gujarat. While acquitting the six prisoners — three of whom were on death row — on 16 May, 2014, the Supreme Court told the Gujarat government, “The story of the prosecution crumbles down at every juncture.” It also reprimanded Narendra Modi, Home Minister of Gujarat when the men were charged under The Prevention of Terrorism Act (2002) POTA, for “clear non-application of mind…in granting sanction.” When turning down their compensation plea for “wrongful arrest,” the court said that it would set a dangerous precedent.

The Gujarat government had argued that accepting the plea would have a ”serious demoralising effect″ on intelligence agencies. The only option left to the men was to sue the Gujarat police for “malicious prosecution” and seek damages. Jaiswal said, “A man who has suffered 25 years of criminal litigation, he wants to gather his life and get on. He does not want to spend the next 20 years in civil litigation.”

He does not want to spend the next 20 years in civil litigation.

Families tire too Taking cases in which innocent men are locked up for years, often without bail, takes an emotional toll, Jaiswal said. “I get very emotional. I get very upset. I still remember (Abdul) Goni’s sister crying and howling that their mother is dying and she wants to see him,” she said. “I have sleepless nights.” As the years pass, Jaiswal said that families also fatigue, both physically and emotionally, and they stop visiting the prisoner and showing up for briefings with his lawyer. Property disputes crop up, with some getting cheated out of their inheritance by their siblings. “Beyond a point, family members also starts thinking that they have to get on with their own lives, they have to exist,” she said. “I’ve seen many people just getting completely abandoned.”

I’ve seen many people just getting completely abandoned.

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