How New Delhi uses constitution to control Kashmir

  • Shrimoyee Nandini Ghosh / Haley Duschinski
  • Publish Date: Sep 7 2017 10:28PM
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  • Updated Date: Sep 7 2017 10:28PM
How New Delhi uses constitution to control Kashmir

     Sheikh Abdullah coming out of the Jammu Jail in April 1964. Photo courtesy The Hindu Archives


The workings of the judiciary through the decades of constitutional consolidation of Indian jurisdiction over J&K from the 1950s to the late 1980s, before the onset of the armed rebellion, established precedent that solidified the coercive constitutional relationship established through the negotiations, political coups and intelligence operations


India’s territorial claims to the divided region of Kashmir are frequently framed in the languages of constitutionalism and rule of law -- for instance, through references to the finality of the Accession Treaty, the treaty’s ratification by the constitutional settlement process between India and Jammu and Kashmir, and the continuing apparent endorsements of this relationship through Kashmiri participation in Indian state and federal elections.

 In contrast, we argue that India’s relationship to Kashmir is one of occupation, and that this occupation is intimately tied to the history of Indian constitutionalism and its emergence as a postcolonial nation in a time of partition, insurrection and war. Specifically, we argue thatKashmir’s relationship to India must be viewed through the lens of occupational constitutionalism – a form of authoritarian control produced through the annexation through accession, of part of Kashmir’s territory and its legal sovereignty to India, and reproduced across time through a series of legal mechanisms and constitutional structures that institutionalize a state of permanent emergency in Kashmir. Such legal processes are exemplified by preventive detention legislations, which enact a regime of punitive containment of all political contestations.

The Indian constitution is rare among liberal, democratic constitutions in having an Article (Article 22) permitting the preventive detention of individuals who are a perceived to be a threat to national sovereignty or public order, written into its fundamental rights charter. Preventive detention laws allow for the deprivation of liberty through executive (rather than judicial) action and suspension of rule of law and the right to fair trial -- usually the hallmarks of an emergency regime -- in “normal” times.

Within Indian legality, preventive detention has played an important and constant role as a routine technique of containing and punishing political dissent using legal frameworks of internalized emergency and perceived threats to peace, state security and public order, premised on suspicion, intelligence gathering and profiling, rather than criminal investigations and judicial proof. In Kashmir, preventive detention laws have been used as a tool of political containment, both by India against Kashmiri nationalist leaders, such as Sheikh Abdullah, and by successive authoritarian J&K political establishments against dissenters.

Preventive detention legislations are a deeply entrenched feature of the colonial and postcolonial legal history of Kashmir, since at least the late nineteenth century. The work of historians and anthropologists of Kashmiri political identity such as Mridu Rai and Cabieri Robinson point to the ways that the legal classification of “J&K state subjects” and the evolution of their employment, residency and property rights as political subjects developed in the pre-independence period alongside laws that allowed for the exclusion of “outsiders,” for imprisonment or externment of those viewed as political enemies, and for criminal sanctions against the expression and dissemination anti-monarchical ideas and religious mobilizations viewed as threatening to the Dogra State.

Enacted soon after the launch of the popular Quit Kashmir movement against the Dogra maharaja, the J&K Public Security Act 1946 was the first in a long series of legislations allowing for preventive detention and widespread restrictions on political and social actions and expression “in the interest of the security of the State, public order and general public.” Other than indefinite preventive detention based on administrative and police orders, it allowed for bans and proscriptions on the circulation of newspapers as well as pre-emptive punishments of collective action such as strikes, public assemblies, social boycotts of government functionaries, false rumors, and mock funerals. The postcolonial J&K state legislature replaced the Public Security Act 1946 with the Preventive Detention Act (PDA) 1954, designed to apply for five years and then expire automatically, and then repeatedly replaced months before its expiration through the Preventive Detention Amendment Act 1958, the PDA 1964, and the Preventive Detention (Amendment) Act 1967.

The laws, principles and practices of generalized suspicion and collective punishment which shaped the nature of borders, political identities, and rights in the early years of J&K’s constitutional integration into India, underlie the violent “lawlessness” of the Public Safety Act, 1978 that is presently being used to indefinitely incarcerate hundreds of Kashmir’s protestors and political activists and dissenters, keeping them “out of circulation” in order to control the on-going popular uprising.


The constitutional politics of the permanent crisis

The J&K constitutional settlement process between India and the emergent J&K state marks a transitional moment in the continuing containment of the struggle for freedom and popular sovereignty in Kashmir. As J&K’s first Prime Minister after the maharaja formally acceded his territory to India, Sheikh Abdullah viewed the establishment of the interim government on the Indian side of J&K as an act transferring sovereign power to the people of the entire territory of the original princely state. This territory, however was, in fact already divided, with the Western part of the former kingdom having rebelled and declared independence under the new Azad Kashmir provisional government, a body supported by Pakistan and recognized by the United Nations as a parallel local authority in the dispute.

Although in his speeches Abdullah frequently invoked the threats to J&K from war, sabotage, conspiracy, and infiltration, he did not publically acknowledge the legitimate existence of a parallel administrative authority over part of the territory, or its inclusion in the UN-proposed interim arrangements for the settlement of the dispute. For instance, in his speech to the United Nations in 1948, Abdullah reiterated the Indian state’s position on Pakistani aggression through “raiders” and “marauders,” asserting that Pakistan’s call for plebiscite after staging a violent and brutal invasion was in bad faith. As leader of the National Conference political party, Abdullah viewed his opposition, the Muslim League and the Muslim Conference -- powerful pro-Pakistan lobbies with popular support particularly among returning refugee populations– as enemies within.

Political scientist Sumantra Bose describes the constitutional agreement between J&K and India as a “strategy of hegemonic control [which] could be sustained only by turning Indian-controlled Kashmir into a draconian police state in which civil rights and political liberties were virtually nonexistent.” The emerging constitutional relationship between India and J&K conferred citizenship rights only on pro-Indian Kashmiri political subjects, allowing for the incarceration and expulsion of political dissidents and the “pushing back” and killing of returning refugees or migrant populations (designated “infiltrators” or enemy agents) at the disputed borders.

Throughout the period of the J&K interim government and the J&K constituent assembly (1948-1953), the Intelligence Bureau played an instrumental role in attributing all forms of local political dissent to external causes instigated by infiltrators and “enemy agents” from Pakistan, rather than Kashmiri state subjects whose pre-existing political and kinship loyalties now crossed the porous border produced through the war. The interim government managed this divided political identity through deeply penetrative surveillance and intelligence operations that facilitated a policing apparatus based on torture, raids, imprisonment and exile. Its authoritarian tactics, which were a well-known public secret, included the widespread use of party workers as informers and enforcers; intolerance of public and even private expressions of pro-Pakistan sentiments, such as wedding songs; and the criminalization of critique of the political dispensation. The coercive constitutional relationship between India and Kashmir was framed by invocations of danger and threats associated with a “war-torn border state.” Special legal provisions and exceptional laws such as those exempting indefinite preventive detentions from judicial review were justified through the repeated association of Kashmir with emergency conditions of imminent or recent war, threats of invasion and infiltration, subversion and political instability.

As constitutional law scholar A.G. Noorani has argued,  under Article 370 of the Indian Constitution, the task of determining the nature of the future constitutional relationship between India and J&K was entrusted to the J&K Constitutional Assembly. Despite the differences on the key aspects of the contours of this relationship that emerged over the next two years, the political establishment in Kashmir shared a common interest with the Indian state: the continuation of limitless colonial powers for political containment through indefinite and arbitrary preventive detention in Kashmir. Indian Prime Minister Jawaharlal Nehru recorded this amicable agreement between the Kashmiri delegation and the members of the Indian constituent assembly during the otherwise fractitious negotiations of the Delhi Agreement in 1952, writing:

“In view of the peculiar situation in the State because of the invasion of the State by Pakistan, subsequent war and ceasefire, very special precautions had to be taken against people infiltrating for espionage, sabotage, or to create trouble otherwise. If, by the full application of the Fundamental Rights in the Constitution, these persons could not be dealt with swiftly and effectively, the situation may well deteriorate and go out of hand. Therefore, the State Government required special powers to deal with this situation and the Fundamental Rights should not take away these powers. This principle was agreed to.”

After the Delhi Agreement, Sheikh Abdullah began voicing disillusionment with India’s constitutional promises of autonomy and drifting towards a position in support of plebiscite. In August 1953, Sheikh Abdullah was removed from office and detained under the Public Security Act, while a more compliant Kashmiri administration was installed including Bakshi Ghulam Mohammad as Prime Minister and D.P. Dhar as Home Minister. In his memoirs, Director of the Indian Intelligence Bureau B.N Mullick describes Sheikh Abdullah’s arrest and replacement by a pro-India faction as part of a covert intelligence action, praising Dhar as a valuable informant who engineered Sheikh’s “fall from the pedestal” and handled political unrest and protests afterwards.

Under Bakshi’s regime, Abdullah was held under the J&K Public Security Act, (1946 and 1954) until January 1958, then detained again under the new PDA from April 1958 until April 1964; he was detained by the Indian government under the Defense of India Rules, war time measures initially promulgated during a period of border tensions with China in the early 1960s, from May 1965 to January 1968. After Sheikh Abdullah’s detention and his replacement as the head of the J&K Constituent Assembly, the Presidential Order of 1954, which significantly eroded Kashmir’s legislative sovereignty and extended the applicability of the Indian Constitution’s Fundamental Rights Chapter to Kashmir (though with several modifications and restrictions) was hurriedly enacted.

The Presidential Order inserts Article 35C into the Indian Constitution to protect preventive detention laws in J&K from judicial review for five years. Subsequent presidential orders extended this moratorium on judicial review from 5 to 10, 15, 20 and 25 years, making preventive detention laws in Kashmir exempt even from the minimal safeguards of Article 22 of the Indian Constitution, such as the right not to be detained for a period longer than six months. Prior to the passage of the J&K PSA 1978, all preventive detentions in the state were in effect immune from judicial over sight under this constitutional moratorium, virtually suspending the universally recognized rights of detenus to the writ of habeas corpus. It also effectively protected these early preventive detention laws from constitutional challenge on the grounds that they violated constitutionally guaranteed rights.


Legalizing the control

An examination of cases before the Supreme Court of India and the J&K High Court involving legal challenges to specific preventive detention orders show how the deeply authoritarian provisional arrangements created amidst war and partition have been legitimized through judicial interpretations of constitutional texts and permanently institutionalized through laws, executive orders, and the judicial system.

The early archive of judicial precedents from the J&K High Court and the Supreme Court on preventive detention in J&K presents many instances the court’s refusal to venture into constitutional questions of derivation of liberty, given Article 35C’s suspension of the habeas corpus right of those in state custody to challenge arbitrary and unlawful detentions. The intertwined constitutional relationship between preventive detention legislation and Kashmir’s constitutional status is illustrated by cases in which the sweeping moratorium and the repeated extensions of the bar on constitutional challenges under Article 35C were themselves challenged as violations of fundamental rights.

The bar on judicial reviews of preventive detention laws under Article 35C was challenged in the Supreme Court by a prominent newspaper editor, political activist, and vocal opponent of Sheikh Abdullah’s preventive detention in P.L. Lakhanpal v State of J&K 1955 (SCR (2)1101). The Petitioner, who had been detained under the PDA 1954, challenged the constitutionality of the act on the grounds that the non-supply of grounds of detention to a detenu (which the act permitted) was a violation of fundamental rights to life and liberty. A constitutional bench of the court held that Article 35C barred the application of the chapter of fundamental rights to the state of J&K, without examining the permissibility of an executive order instituting such a sweeping dilution of judicial powers in only one state, in light of the right to constitutional guarantee of equality, extended to J&K citizens via the 1954 Presidential Order.

The most prominent Supreme Court case dealing with the limits of Article 370 and the powers of the president to pass executive orders under it was Sampat Prakash vs. State of J&K and Another 1970 (SCR (2) 365). The petitioner, a trade unionist detained and held in solitary confinement under the PDA 1964 during a period of intense political unrest and public protest in the late 1960s, challenged the constitutional validity of the presidential order that had repeatedly amended Article 35C extending the bar on judicial reviews. The petitioner argued that parts of Article 370 could be struck down for violating fundamental rights since the entire article came under the definition of “law” in the Indian constitution, and that all amendments made to Article 370 had lacked validity once the J&K constituent assembly, as the body empowered to amend or suspend Article 370, had been dissolved.

The court held that the president had the power to extend the period of immunity of state laws even if fundamental rights were being infringed, and that the presidential order of 1954 and its modifications in 1959 and 1964 were validly passed in accordance with the procedure established in Article 370, despite the dissolution of the J&K Constituent Assembly. Sampat Prakash became the leading precedent on the question of Article 370, transforming it from a temporary provision into a permanent mechanism for continuously extending Indian legislative jurisdiction over the state through presidential orders far beyond the original limitations established in the initial Instrument of Accession. The court did, however, decide that since the petitioner was not accused of any criminality, he could not be held in solitary confinement.

The gradual takeover of J&K’s autonomous institutions and constitutional sovereignty was challenged in another case involving preventive detention in the following year. Mohammad Maqbool Damnoo vs. State of Jammu and Kashmir 1972 (SCR (2)1014) questioned the constitutional validity of the Preventive Detention Amendment Act 1967 on the basis that it had received the assent of the governor rather than the sadar-i-riyasat, the constitutional head of the state – a position established by the J&K constituent assembly to replace the hereditary maharaja. The J&K constitution was amended through the Constitution of Jammu and Kashmir (6th Amendment) Act 1965 to provide for the appointment of a governor, nominated by the central government, in place of the sadar-i-riyasat, who was to be elected by the state legislature under the original J&K constitution. The petitioner, besides challenging the validity of his detention order on procedural grounds, contended that the amendment violated the J&K constitution, and the preventive detention law could not be valid unless it received the assent ofthe sadar-i-riyasat. The court, however, endorsed the validity of the amendment, affirmed the J&K constitution’s subordinated status, and held that the phrase “Government of Jammu and Kashmir” under Article 370 referred to the Governor and Council of Ministers rather than thesadar-i-riyasat.

One of the rare successful constitutional challenges of a provision of a preventive detention law occurred in the late 1980s after the lapse of the constitutional moratorium on judicial review. In Peer Hissam-Ud-Din vs. State 1988 (CriLJ 1500 (J&K)), the petitioner was described as a “notorious and staunch worker of Muslim United Front.” The detention order outlined a long list of detention grounds for actions associated with the political violence of 1987 electoral campaign, including organizing meetings, inciting strikes, delivering speeches urging freedom from India, and commemorating in protest the state execution of a prominent Kashmiri freedom fighter. The petitioner alleged that the detention order had not been served, the relevant documents had not been supplied, and the detention grounds were vague. He also challenged the constitutionality of PSA Section 10-A, a controversial amendment stating that a detention order made on multiple grounds would not be invalidated if one or more grounds were found to be vague, non-existent, not relevant, or not connected to the detenu. The J&K High Court agreed that Section 10-A contravened the provisions of Articles 19, 21, and 22 of the Indian constitution as made applicable to J&K. The court invalidated Section 10-A and declared the detention order unconstitutional in this case, but upheld the validity of preventive detention in general.

The workings of the judiciary through the decades of constitutional consolidation of Indian jurisdiction over J&K from the 1950s to the late 1980s, before the onset of the armed rebellion, established precedent that solidified the coercive constitutional relationship established through the negotiations, political coups and intelligence operations. Cases involving various kinds of political dissenters, from Kashmiri nationalist allies of Sheikh Abdullah to trade unionists and pro-freedom electoral candidates, demonstrate the pervasive use of techniques of political repression grounded in legal frameworks of permanent crisis and jurisdictions of suspicion. They further demonstrate how these frameworks are written into the foundational texts and institutions of postcolonial Indian constitutionalism.

This history of preventive detention in Kashmir, viewed against the back drop of the constitutional settlement negotiations that took place in the early years of India’s constitutional and territorial “integration” of J&K, allow us to see how judicial and legal documents, institutions and processes establish Kashmir as a jurisdiction of permanent emergency, and Kashmiris as the “enemy within” in India’s constitutional framework. The Indian constitution thus acts not as a restraint on the authoritarian exercise of state power, but as the scaffolding that has historically enabled India’s criminalization of Kashmiri political dissent, aspirations and rebellion, and legitimizes and consolidates its effective control over Kashmir.


 The authors previously published a longer version of this article as “Constituting the Occupation: Preventive Detention and Permanent Emergency in Kashmir” in the  Journal of Legal Pluralism and Unofficial Law (2017)


(Shrimoyee Ghosh  is a  human rights lawyer based in Srinagar. She recently finished a PhD from the Centre  for Study of Law and Governance, Jawaharlal Nehru University. Haley Duschinski is an Associate Professor of Anthropology at Ohio University. Her research focuses on law and politics in Kashmir)


Kashmir Ink doesn’t necessarily agree with the views expressed