August 5, 2020

By Asra Haque


LAHORE

Following a series of terrorist attacks in India especially the one on the Indian Parliament on December 12 by terrorist organizations, the Lashkar-e-Taiba and the Jaish-e-Mohammad, the Indian government enacted the Prevention of Terrorism Act (POTA) in 2002.

The Act defined terms such as “terrorist” and “terrorist act” as well as delegating incredible powers to security agencies investigating terrorist activities in Jammu and Kashmir. Suspects could be detained for a period of three months without charge and for another three months on orders of a special judge.

The first victim to be unjustly detained under allegations of conspiring with militants was a Kashmiri carpet-weaver, Ghulam Muhammad Dar, who was picked up on November 20, 2001, by Indian security forces. He was eventually released on parole in 2003 after languishing for 14 months in an Indian prison despite the lack of evidence of his involvement with the banned Hizbul Mujahedeen outfit and later pardoned.

The Act was however eventually repealed in 2004.

Jammu and Kashmir Public Safety Act 1978

Perhaps the first draconian law imposed in disputed Jammu and Kashmir by India was the Jammu and Kashmir Public Safety Act of 1978, which extended extraordinary powers to security forces to arrest and detain an individual without informing them of the reason of their arrest and without fair trial for two years under the guise of maintaining public order. A 1990 amendment allowed security forces to detain persons arrested in Kashmir in Indian prisons.

The Act exonerates law enforcement agents from legal proceedings for acts done in good faith. It also trounces fundamental rights of citizens by barring them from their right to fair trial, equality before law, to appeal against their conviction and to be produced within a court before a judge within 24 hours of arrest. Furthermore, the time of detention can be indefinitely extended.
Peoples Democratic Party (PDP) politician Mehbooba Mufti, who last served as Chief Minister for Jammu and Kashmir from April 2016 to June 2019, is among the many political leaders targeted by oppressive laws such as the Public Safety Act. She remains detained since her arrest on August 5, 2019, the very day the ruling Bharatiya Janata Party (BJP) of India repealed Articles 370 and 35A, revoking Jammu and Kashmir’s special status as an autonomous region.

Prevention of Terrorism Act (POTA) 2002

In order to clamp down on militant activities following a series of terrorist attacks in India, especially the December 12, 2001 attack on the Indian Parliament by Pakistan-based terrorist organizations, the Lashkar-e-Taiba and the Jaish-e-Mohammad, the Indian government enacted the Prevention of Terrorism Act (POTA) in 2002.

The Act defined terms such as “terrorist” and “terrorist act” as well as delegating incredible powers to security agencies investigating terrorist activities in Jammu and Kashmir. Suspects could be detained for
a period of three months without charge and for another three months on orders of a special judge. The first victim to be unjustly detained under allegations of conspiring with militants was a Kashmiri carpet-weaver, Ghulam Muhammad Dar, who was picked up on November 20, 2001, by Indian security forces. He was eventually released on parole in 2003 after languishing for 14 months in an Indian prison despite the lack of evidence of his involvement with the banned Hizbul Mujahedeen outfit and later
pardoned.

The Act was however eventually repealed in 2004.

Articles 350 and 35A

On August 5 of 2019, the BJP government of India repealed the seven-decade old Article 370 of the Indian Constitution which granted special status to Jammu and Kashmir as an autonomous region.
Article 35A, which had been instituted via a presidential order on May 14, 1954, under Article 370, granted special privileges to permanent residents of Jammu and Kashmir. These privileges included the right to acquire immovable property, to acquire land to settle in the region, to vote and run for office, to be employed as a government worker or officer, and to obtain scholarships or any other such aid from the state government.
Article 370 as a whole conferred the status of an autonomous region to Jammu and Kashmir, allowing it to have its own separate constitution and set of laws concerning citizenship, right to property and fundamental rights, a privilege which only residents of Jammu and Kashmir, and not Indian citizens, could enjoy.

These privileges however were revoked by the Indian government in one fell swoop exactly one year ago from now, following a period of increasing tensions and clashes between Kashmiri nationalist groups and Indian troops. Prior to the revocation of Article 370, the Indian government exercised
emergency measures, deploying tens of thousands additional troops in the region, placing local political leaders under house arrest, suspending phone and internet services in a complete communication and information blackout, sealing educational institutions, and suspending any and all tourism or religious pilgrimage in the area.

Then, on August 5, 2019, the ruling BJP government through a presidential order abolished Article 370 (and by extension 35A), revoking the special status Jammu and Kashmir had hitherto enjoyed, and extending the powers of the Indian Constitution to the formerly autonomous region.

Jammu and Kashmir Reorganization Order 2020

Despite the extension of the Indian Constitution to Jammu and Kashmir, the territory continued to be governed under its old laws up until the end of March 2020, when on March 31, the Union Ministry of Home Affairs (Department of Jammu, Kashmir, and Ladakh Affairs) promulgated the Jammu and Kashmir Reorganisation (Adaptation of State Laws) Order 2020.
Exactly 29 laws of the state of Jammu and Kashmir were repealed under the order, while 109 laws were amended, including the Jammu and Kashmir Civil Services (Decentralization and Recruitment) Act 2010, where the definition of a “permanent resident” was substituted with references to “domiciles” in the region.

To apply and obtain a domicile, any person who has been a resident of Jammu and Kashmir for at least 15 years, has studied for seven years and sat for grade 10 and 12 examinations in the region or those registered with the Relief and Rehabilitation Commissioner (Migrants) of India as migrants are eligible for domicile status. Moreover, Indian government officers, military officials, and other vested persons who have served in the region for a minimum of 10 years, as well as their children, can also obtain
domicile status. The order was lambasted in the international community, especially be resident Kashmiris and Pakistan, as an attempt by the Indian government to alter the demography of the disputed territory – Indians with
a domicile status in the region can vote and run for office, acquire property in the region, and be employed as government officials representing the state of Jammu and Kashmir, altering politics in favor of the Indian government and contrary to the fundamental rights of the mainly Muslim Kashmiri people.

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