Preventive Detention in Counter-insurgencies: The Case of Kashmir.

• Author: Bhat, Mohmad Aabid
• Position: COMMENTARY

Introduction

The disputed territory of Jammu and Kashmir (J&K) has been engulfed in a protracted armed conflict between two nuclear powers --India and Pakistan--for the past seven decades. The part under Indian administration is called Indian Administered Kashmir (IAK), and the part under Pakistani administration is called Pakistan Administered Kashmir (PAK). The conflict took a serious turn in 1989, with the rise of an armed insurgency in IAK. The insurgency went through various ebbs and flows, and the Indian state actively sought to contain this insurgency at many levels. The

Indian administration tried to delimit the sphere of armed insurgents believed to be sent from Pakistan. Dhakal categorizes the counterinsurgency (COIN) campaign launched by India in the disputed territory of Jammu and Kashmir into two distinct phases, from 1989 to 2000 (Phase I), and 2000 onwards (Phase II). (1) Phase I involved the iron-fist approach, which was militaristic in nature. India's iron-fist approach is evident in the military operations that were in place, namely the operations Shayak, (2) Vijay and Eraze, (3) and Parakram. (4) However, these militarist tactics could not annihilate the core of the insurgency. Therefore, a shift towards a mixed approach of COIN has lately been observed. This approach includes Winning Hearts and Minds (WHAM) along with the militaristic operations.

David Galula, a counterinsurgency theorist, emphasizes the role of the civilian population as an inseparable element in any COIN campaign. (5) He argues that the success of COIN operations depends upon weakening the bond between the insurgents and the local people, thus deterring civilians from supporting the insurgency. As far as the case of Kashmir is concerned, the support of people to insurgents and insurgency did not wane, which could be recognized from the high level of support (6) insurgents received from the population. In Phase II of the insurgency, a noticeable decrease in the involvement of armed rebels, but an increase in the involvement of civilians, assuming the form of a 'total insurgency' of the entire population, was seen. (7)

In order to understand this transformation, the background of the conflict, and the Indian state's responses to the insurgency, which aimed to limit the involvement of the civilian population, should be considered. As mentioned above, several military operations were implemented to annihilate the armed insurgents and to instill fear among the population to keep them from supporting the insurgents. These militaristic operations reduced the number of armed insurgents considerably. Consequent to this, the WHAM approach was utilized to further detach the population from supporting the insurgency. An environment of free and fair elections was emphasized. In the early 2000s resistance was at its lowest point, and remained so until 2008, when the illegal transfer of land to the Shri Amarnath Shrine Board (SASB) evoked widespread public condemnation, including massive civilian protests against the perceived political intent of this act. (8) Objections to the illegal transfer of land (9) united the people, and strengthened their efforts to oppose any idea of changing the demography of the state of Jammu and Kashmir.

The Indian government resorted to harsh tactics to control the public outcry. The methods employed were numerous and diverse. Recognizing the changing nature of the insurgency in Kashmir--from diminished armed resistance to an increase in unarmed civilian resistance--the state maneuvered its tactics to gain control over the civilian population participating in the resistance movement. One such tactic involved detaining people under a preventive detention law, the Jammu and Kashmir Public Safety Act (PSA).

This paper explores the possible psychological rationale behind the Indian state's excessive use of preventive detention law. This study utilizes Michel Foucault's concept of dispositif in the context of the disputed territory of Kashmir to establish a relation with the state's psychological rationale. Dispositif refers to the institutional, physical, and administrative maneuvers by the authority in such a way to be used for their own purpose (i.e. to enhance the control and power). Lastly, it utilizes framing theory to explore the method that the hegemonic state uses to contain the psyche of the Kashmiri population as another form of thought control.

History of Preventive Detention Law in Kashmir

The roots of the PSA can be traced back to the Public Security Act, which was implemented in 1946 in colonial Kashmir to put the members of the Quit Kashmir Movement under preventive detention. It was later replaced by the Preventive Detention Act of 1954, which was a temporary provision only intended for a duration of five years. However, prior to its expiration, it was amended and replaced by the Preventive Detention Act of 1958. This Act underwent a series of amendments until the enactment of the Jammu and Kashmir Public Safety Ordinance in 1977 by Sheikh Abdullah, then Chief Minister. A few months later, in 1978, this ordinance was transformed into the Public Safety Act. (10)

The latest PSA, promulgated in 1978, provides for the administrative detention of a person without trial for a maximum of two years for acting against the "security of the state," and for a period of one year for a person "acting in any manner prejudicial to the maintenance of public order." (11) However, further amendments were made in 2012 which allowed for the maximum time period in the former case to be substituted by "six months," which may be extended up to two years. Also, in the latter, the time period was substituted with "three months," which may be extended to twelve months. The deputy commissioner or the district magistrate is the executive authority who maintains the power either to reject or to accept the recommendations submitted by the police.

The rationale of the PSA, as acclaimed by Sheikh Abdullah, was to book timber smugglers under this Act in order to protect the forest ecosystem; but the covert political motives came to the fore when the Act was invoked for the first time to achieve political gains. Ghulam Nabi Patel, President of Kashmir Motors Drivers Association (KMDA), had supported the Janatha Party against the National Conference Party in the state elections of 1977 and was subsequently incarcerated under the PSA by the Abdullah government. Eventually, this legacy was adopted by successive regimes, which detained members of Jamat-i-Islami, a religious and sociopolitical organization in Jammu and Kashmir, to clear the political opposition. (12)

Similarly, in 2008, the state administration resorted to this Act and invoked it against the civilians who protested in the backdrop of the "Shopian rape case" and the "Machil fake encounter." Since then, this law has continued to be grossly abused. It has become the norm to detain civilians under this Act, which can be seen in its indiscriminate use by the successive governments in power. The Act has become a disempowering and coercive instrument of the state, utilized to indiscriminately target political opponents--or whoever the authorities wish to target.

Law and Counterinsurgency: Indiscriminate Usage of the PSA in Kashmir

Muni explains the various strategies used for counterinsurgency. (13) He argues that one strategy is to utilize various legislations to reduce the sphere of the insurgents. This strategy has been utilized in the recent past in Jammu and Kashmir against the backdrop of the uprising in 2008. The indiscriminate use of the PSA by the state administration is evident from its ever-increasing statistics. Measuring the scale of preventive detention in Kashmir, it was found that J&K prisons contained 11.5 percent of such detentions in 2008 alone, 14 times higher than the national average. (14) In a reply to the request seeking information of detainees under the Right to Information Act (RTI), the state's Home Department acknowledges 16,329 cases of PSA registered since 1988. (15) The Kashmir Bar Association contests this figure, giving an estimate of 40,000 cases of PSA registered since 1989. These numbers remain contested. In another RTI request filed by JKCCS, a civil society group based in Srinagar, Kashmir, seeking information regarding the cases involving the PSA, information on only 5,597 cases was provided. This all proves that major discrepancies exist in sharing basic information concerning those affected by the PSA. Moreover, it shows the authorities' lack of seriousness and lack of accountability toward maintaining accurate information regarding such cases. The incredible increase in the number of cases became conspicuously evident during the subsequent years of the uprising. Amnesty International revealed in their 2011 report that J&K Home Department had provided details of 334 persons booked under the PSA in the short span between January 5, 2010 and February 14, 2010. (16) A 2012 estimate by the Economic Times reports 617 cases of PSA in 2010 alone. (17)

The cycle of arrests has continued. After the killing of...