Over the past few weeks, a number of lawyers in Jammu & Kashmir have been detained by the police for reasons that are not quite clear..Senior Advocate and former General Secretary of the Jammu and Kashmir High Court Bar Association (HCBA), Srinagar, Mohammad Ashraf Bhat is the latest detainee, after Senior Advocate Nazir Ahmad Ronga, and Advocate Mian Muzaffar were detained by the police earlier.Former President of the HCBA Mian Qayoom was arrested last month, but that was in connection with the 2020 murder of Advocate Babar Qadri..Family members and well-wishers of the first three lawyers have said that the first three detentions have been made under the Jammu and Kashmir Public Safety Act, 1978.However, the Jammu and Kashmir Police has not disclosed any official statement on their detention so far.We tried to contact the Senior Superintendent of Police (SSP) at Srinagar, Ashish Mishra, to find out the exact reason behind these detentions, but he refused to receive telephone calls. When he asked us to send our queries through text message, there was no response..A draconian legislation?.The Jammu & Kashmir Public Safety Act, 1978 (PSA) is a preventive detention law under which a person can be taken into custody without a formal charge and without trial to prevent him from acting in any manner that is "prejudicial to the security of the state or the maintenance of public order". It is very similar to the National Security Act that is used by other state governments for preventive detention.As per Section 13, detainees are required to be informed of the grounds of detention no later than 10 days after the detention. The detainee is afforded the opportunity of making a representation to the administration challenging the order. The administration is required to make a decision on the representation within 21 days.Detainees usually move the High Court on the ground that their representation to the administration has not been considered in time. This effectively means they must wait a while before moving the courts for relief.In every case where a detention order has been passed, the administration shall, within four weeks, place the details before an Advisory Board, which is required to submit a report within six weeks. Based on this report, the detention either continues or is recommended to be scrapped.The PSA comes into force by an administrative order passed by the District Magistrate (DM). The DM is mandated under law to apply his mind before ordering the preventive detention of persons under the Act.The Jammu and Kashmir High Court has quashed many detention orders on the ground of non-application of mind and improper justification. Most recently, an order was quashed by the High Court and a penalty of ₹10,000 was imposed on the DM for unjustified detention of a man under the PSA..In 2021, a public interest litigation (PIL) was filed before the Jammu and Kashmir High Court challenging the constitutional validity of Section 18 of the PSA, which prescribes the maximum period of preventive detention allowed under the Act. The plea had stated that the maximum period of punishment should three months, as mandated by Article 22(7) of the Constitution of India.The maximum period of detention under the PSA is two years.However, the J&K administration defended the validity of the legislation, arguing that it was retained by Parliament through Jammu and Kashmir Reorganisation Act, 2019 for application to the Union Territory of J&K even after the bifurcation of the State into two union territories. .Plea in Jammu & Kashmir High Court claims Section 18 of Public Safety Act unconstitutional after scrapping of Article 370; HC seeks govt response.A deafening silence in the Valley.Most of the lawyers we approached refused to speak on these detentions."Today's comment will create a big problem tomorrow," one of the lawyers said with a heavy heart.But some political leaders were willing to comment. Those critical of the detentions say that what is equally concerning is the silence of other lawyers on this issue..Former judge and now political leader affiliated with the Jammu and Kashmir National Conference (JKNC) Muzaffar Iqbal Khan has called the detention of these lawyers a dangerous trend and a "sorry state of affairs".JKNC's spokesperson Imran Nabi Dar raised concerns about the right of people to know the reason behind these detentions and the specific legal provisions invoked."People of Jammu and Kashmir should not face harassment. Needless to say, these actions conducted without proper legal procedures are detrimental and will inevitably increase the trust deficit here in Jammu and Kashmir," Dar said..Senior leader of the Communist Party of India (CPI) Mohammad Yousuf Tarigami has demanded the immediate release of the detained lawyers. He said,"Lawyers play a crucial role in upholding the rule of law and ensuring justice for all individuals. They are the defenders of rights and liberties, and their role in a democratic society in indispensable. However, when lawyers themselves are targeted and detained without due process, it sends a chilling message about the state of the legal system and the protection of fundamental rights. Detaining these respectable lawyers under the J&K Public Safety Act is highly unwarranted. They must be released to uphold the democratic values and principles.".Peoples Democratic Party (PDP) leader Waheed Ur Rehman Parra also weighed in, saying,"It's really unfortunate to see this fresh crackdown on lawyers and bar association. Kashmir legal community has suffered immense pressure and emotional trauma over decades of conflict. The least they deserve this treatment. They should be given all the space to advocate democratic rights and justice process under law. We strongly condemn this treatment.".A Bar at war?.However, some believe that the detentions are justified.President of the newly recognized Kashmir Advocates Association (KAA) Advocate Waseem Gull has accused Ronga and Bhat of illegally running the bar association and supporting terrorism."Nazir Ronga and Ashraf Bhat are the office bearers of self-styled, illegal High Court Bar Association, Srinagar who used to support terrorism. As such, they have come under the scanner of law enforcing agencies and the law will take its own course. Those who have committed wrongdoing must face the consequences," he said..Jammu and Kashmir High Court grants recognition to Kashmir Advocates Association.On July 19, a press note was issued by the KAA saying that the HCBA Srinagar is not a legally recognised entity."It is known for propagating secessionist ideology and supporting terrorism and terrorist within the courts. Such actions are not only illegal but also detrimental to the peace and stability of the UT particularly Valley," the press note said.The press note did not venture to clarify what evidence there was to support the theory that the HCBA members support terrorism..The HCBA Srinagar is a body of around 3,000 lawyers from across the Valley. As per its website, a majority of the members are lawyers practicing in subordinate courts. It describes itself as an organisation that has been fighting for the legal rights of people in the area, and one that is committed to "help in the amicable settlement of the Kashmir problem to end the conflict situation". Back in 2020, when the High Court administration had objected to HCBA's conduct of its annual elections. The chief gripe was that the HCBA's constitution called Kashmir a "disputed territory". The High Court administration wrote to the HCBA seeking clarification on this position..And four years later, when the HCBA issued a notification to conduct its elections, the police began detaining its lawyers.Following the election notification, the District Magistrate, Srinagar sought a report from the SSP regarding the status and legal position of the HCBA. The SSP stated in his report that the bar association has no legal recognition and raised concerns that law and order issues may arise if it is allowed to hold elections. The KAA also communicated to the DM alleging that the HCBA was propagating secessionist ideologies.Following such reports, the DM imposed restrictions under Section 144 of the Code of Criminal Procedures (CrPC) in the district court premises at Srinagar to halt the HCBA elections..Section 144 CrPC invoked to halt Jammu and Kashmir High Court Bar Association elections.Following Qayoom's arrest on June 25 this year, the HCBA issued a notification saying that it would drop the phrase 'Kashmir dispute' from its constitution.Subsequently, it issued another notification saying that it has amended its constitution and has removed references to Kashmir being a 'disputed territory' from its constitution. The HCBA also wrote to the Deputy Commissioner, Srinagar on July 5, clarifying that it had made an amendment in its constitution to this effect..However, the authorities still seem to be skeptical about the HCBA's intentions, as is evident from Ronga's midnght detention on July 11. After Ronga was taken into custody, the HCBA election process has been suspended..Unable to afford the protections guaranteed under the criminal laws of India, the senior lawyers continue to languish in jail. As of now, they are unable to even challenge the detentions before the High Court, given the timelines under the PSA.
Over the past few weeks, a number of lawyers in Jammu & Kashmir have been detained by the police for reasons that are not quite clear..Senior Advocate and former General Secretary of the Jammu and Kashmir High Court Bar Association (HCBA), Srinagar, Mohammad Ashraf Bhat is the latest detainee, after Senior Advocate Nazir Ahmad Ronga, and Advocate Mian Muzaffar were detained by the police earlier.Former President of the HCBA Mian Qayoom was arrested last month, but that was in connection with the 2020 murder of Advocate Babar Qadri..Family members and well-wishers of the first three lawyers have said that the first three detentions have been made under the Jammu and Kashmir Public Safety Act, 1978.However, the Jammu and Kashmir Police has not disclosed any official statement on their detention so far.We tried to contact the Senior Superintendent of Police (SSP) at Srinagar, Ashish Mishra, to find out the exact reason behind these detentions, but he refused to receive telephone calls. When he asked us to send our queries through text message, there was no response..A draconian legislation?.The Jammu & Kashmir Public Safety Act, 1978 (PSA) is a preventive detention law under which a person can be taken into custody without a formal charge and without trial to prevent him from acting in any manner that is "prejudicial to the security of the state or the maintenance of public order". It is very similar to the National Security Act that is used by other state governments for preventive detention.As per Section 13, detainees are required to be informed of the grounds of detention no later than 10 days after the detention. The detainee is afforded the opportunity of making a representation to the administration challenging the order. The administration is required to make a decision on the representation within 21 days.Detainees usually move the High Court on the ground that their representation to the administration has not been considered in time. This effectively means they must wait a while before moving the courts for relief.In every case where a detention order has been passed, the administration shall, within four weeks, place the details before an Advisory Board, which is required to submit a report within six weeks. Based on this report, the detention either continues or is recommended to be scrapped.The PSA comes into force by an administrative order passed by the District Magistrate (DM). The DM is mandated under law to apply his mind before ordering the preventive detention of persons under the Act.The Jammu and Kashmir High Court has quashed many detention orders on the ground of non-application of mind and improper justification. Most recently, an order was quashed by the High Court and a penalty of ₹10,000 was imposed on the DM for unjustified detention of a man under the PSA..In 2021, a public interest litigation (PIL) was filed before the Jammu and Kashmir High Court challenging the constitutional validity of Section 18 of the PSA, which prescribes the maximum period of preventive detention allowed under the Act. The plea had stated that the maximum period of punishment should three months, as mandated by Article 22(7) of the Constitution of India.The maximum period of detention under the PSA is two years.However, the J&K administration defended the validity of the legislation, arguing that it was retained by Parliament through Jammu and Kashmir Reorganisation Act, 2019 for application to the Union Territory of J&K even after the bifurcation of the State into two union territories. .Plea in Jammu & Kashmir High Court claims Section 18 of Public Safety Act unconstitutional after scrapping of Article 370; HC seeks govt response.A deafening silence in the Valley.Most of the lawyers we approached refused to speak on these detentions."Today's comment will create a big problem tomorrow," one of the lawyers said with a heavy heart.But some political leaders were willing to comment. Those critical of the detentions say that what is equally concerning is the silence of other lawyers on this issue..Former judge and now political leader affiliated with the Jammu and Kashmir National Conference (JKNC) Muzaffar Iqbal Khan has called the detention of these lawyers a dangerous trend and a "sorry state of affairs".JKNC's spokesperson Imran Nabi Dar raised concerns about the right of people to know the reason behind these detentions and the specific legal provisions invoked."People of Jammu and Kashmir should not face harassment. Needless to say, these actions conducted without proper legal procedures are detrimental and will inevitably increase the trust deficit here in Jammu and Kashmir," Dar said..Senior leader of the Communist Party of India (CPI) Mohammad Yousuf Tarigami has demanded the immediate release of the detained lawyers. He said,"Lawyers play a crucial role in upholding the rule of law and ensuring justice for all individuals. They are the defenders of rights and liberties, and their role in a democratic society in indispensable. However, when lawyers themselves are targeted and detained without due process, it sends a chilling message about the state of the legal system and the protection of fundamental rights. Detaining these respectable lawyers under the J&K Public Safety Act is highly unwarranted. They must be released to uphold the democratic values and principles.".Peoples Democratic Party (PDP) leader Waheed Ur Rehman Parra also weighed in, saying,"It's really unfortunate to see this fresh crackdown on lawyers and bar association. Kashmir legal community has suffered immense pressure and emotional trauma over decades of conflict. The least they deserve this treatment. They should be given all the space to advocate democratic rights and justice process under law. We strongly condemn this treatment.".A Bar at war?.However, some believe that the detentions are justified.President of the newly recognized Kashmir Advocates Association (KAA) Advocate Waseem Gull has accused Ronga and Bhat of illegally running the bar association and supporting terrorism."Nazir Ronga and Ashraf Bhat are the office bearers of self-styled, illegal High Court Bar Association, Srinagar who used to support terrorism. As such, they have come under the scanner of law enforcing agencies and the law will take its own course. Those who have committed wrongdoing must face the consequences," he said..Jammu and Kashmir High Court grants recognition to Kashmir Advocates Association.On July 19, a press note was issued by the KAA saying that the HCBA Srinagar is not a legally recognised entity."It is known for propagating secessionist ideology and supporting terrorism and terrorist within the courts. Such actions are not only illegal but also detrimental to the peace and stability of the UT particularly Valley," the press note said.The press note did not venture to clarify what evidence there was to support the theory that the HCBA members support terrorism..The HCBA Srinagar is a body of around 3,000 lawyers from across the Valley. As per its website, a majority of the members are lawyers practicing in subordinate courts. It describes itself as an organisation that has been fighting for the legal rights of people in the area, and one that is committed to "help in the amicable settlement of the Kashmir problem to end the conflict situation". Back in 2020, when the High Court administration had objected to HCBA's conduct of its annual elections. The chief gripe was that the HCBA's constitution called Kashmir a "disputed territory". The High Court administration wrote to the HCBA seeking clarification on this position..And four years later, when the HCBA issued a notification to conduct its elections, the police began detaining its lawyers.Following the election notification, the District Magistrate, Srinagar sought a report from the SSP regarding the status and legal position of the HCBA. The SSP stated in his report that the bar association has no legal recognition and raised concerns that law and order issues may arise if it is allowed to hold elections. The KAA also communicated to the DM alleging that the HCBA was propagating secessionist ideologies.Following such reports, the DM imposed restrictions under Section 144 of the Code of Criminal Procedures (CrPC) in the district court premises at Srinagar to halt the HCBA elections..Section 144 CrPC invoked to halt Jammu and Kashmir High Court Bar Association elections.Following Qayoom's arrest on June 25 this year, the HCBA issued a notification saying that it would drop the phrase 'Kashmir dispute' from its constitution.Subsequently, it issued another notification saying that it has amended its constitution and has removed references to Kashmir being a 'disputed territory' from its constitution. The HCBA also wrote to the Deputy Commissioner, Srinagar on July 5, clarifying that it had made an amendment in its constitution to this effect..However, the authorities still seem to be skeptical about the HCBA's intentions, as is evident from Ronga's midnght detention on July 11. After Ronga was taken into custody, the HCBA election process has been suspended..Unable to afford the protections guaranteed under the criminal laws of India, the senior lawyers continue to languish in jail. As of now, they are unable to even challenge the detentions before the High Court, given the timelines under the PSA.
