Democracies in the West took a long time to brew and evolve with foundations based on oeuvre of philosophical underpinnings with many convulsions and wrong starts and restarts before being established firmly. Even after centuries of those traditions, the established democracies become lacking upon challenges from lawless groups and individuals and require unstinted vigil and firmness of institutions to withstand those vagaries. Those democratic ideals when transposed to the third world remain complete in letter but seem to be utterly devoid of spirit, which uniquely gets lost in transport. India, which is dubbed as the world’s largest democracy is perhaps a paradigm of a governing system only in letter, utterly devoid of a democratic soul where the rule of law is recklessly used for creating lawlessness and enforcing domination by its majority.
Nothing exemplifies that better than the manner India has used or rather misused its laws to collectively punish the over 7 million population of Kashmir for defying its hegemony. Since August 5, 2019 when the Indian government in a unilateral illegal move dismembered the state of Jammu and Kashmir, the entire population of the valley has been under a siege cut off from the outside world and without access to basic amenities like healthcare, education and communication. There is an incessant arbitrariness including indiscriminate arrests aimed at intimidation of the population for submission to the whims of Hindu majoritarian government of the Prime Minister Modi. While the government has bandied out the number of those arrested between one and three thousand, Pervez Imroz of the Coalition of Civil Liberties in Kashmir has put the number of those arrested up to 20-30 thousands. Indiscriminately arrested persons range from politicians of the so-called mainstream parties who until the other day had been running Indian show in Kashmir to under-aged children. Those rampant detentions in both rural and urban areas happen without due any process or record.
The current Indian government may have exceeded all limits in its devious use of rule of law to intimidate the entire population of Kashmir without any provocation; yet all successive Indian governments, right from the time when the state entered into a temporary accession with the Indian union in 1947, have used legal processes to punish the dissenting political entities in Kashmir without any compunctions. Sheikh Abdullah, the first Prime Minister of the state, who was instrumental in aligning of Kashmir with India, was duly discarded, arrested in 1953 and subsequently slapped with so-called Kashmir conspiracy case, which was duly dropped as a matter of political expediency. The different governments might have surreptitiously eroded the constitutionally guaranteed autonomy of the state; the legal protections under the Indian constitution never became available in Kashmir. Even Kashmiris tried in Indian courts have been treated peculiarly with most famous case being that of Afzal Guru who as per the Supreme Court itself for lack of hard evidence was handed over the death sentence to satisfy the collective conscious of the country.
That sentence, itself revulsive and against legal norms, paled in comparison to the manner in which Afzal Guru was executed in 2013 in complete secrecy without even the decency of notifying his family. His family in Kashmir received a letter in post two days after his execution. Kashmiri politicians and activists throughout have been victims of Machiavellian machinations of different Indian agencies with different cases slapped against them in attempts to tame and make them toe the Indian line. The former chief of an Indian spy agency, Research and Analysis Wing (RAW), Amar Singh Daulat, had detailed in his memoirs the sordid games India played in Kashmir to maintain Indian control. India throughout ran Kashmir through its intelligence and other agencies notwithstanding the veneer of an orchestrated political charade. Modi government since its start in 2014 has turned those agencies into potent weapons of vengeance to be used against Kashmiri separatist leadership even before the fateful August 5, 2019.
Indian government and its agencies, shielded from the fact that the top Indian court has deviously refused to heed the habeas corpus law, have put separatist leadership including octogenarian Syed Ali Shah Geelani in Kashmir in a state of permanent incarceration for almost eternity. The Supreme Court even refused to entertain the habeas corpus petition filed against the arrest of Farooq Abdullah after the government invoked infamous public safety act (PSA), a decision called palpably wrong by the noted jurist A. G. Noorani. Those legal luxuries of habeas corpus are beyond the reach of Kashmiris incarcerated without any formal arrest and are political thorns in the eyes of the Indian government. It is the case of a younger separatist leader, Yasin Malik that has taken an ominous portent with Indian intelligence agency having drudged out a three decade old case against him.
Although the cases in courts in India move notoriously slow except when political expediency hastens the judicial velocity. As was the case with Sanjiv Bhatt, a dismissed police officer in Gujarat who had vocally implicated Modi, the then chief minister in the state at the time of infamous riots against Muslims in 2002. From his arrest, to framing of a murder case against him and to sentencing to a life imprisonment, everything happened in a virtual blink. Similarly from a usual arrest of Yasin Malik under the public safety act to booking by the Indian National Agency and his lodging in the Tihar jail in a three old decade case has all the hallmarks of revengeful ill intentions of the Indian state. While the Indian government since August 5, 2019, has humiliated the mainstream politicians in Kashmir, it is for the separatist leaders like Yasin Malik, who from the start refused to accept the Indian occupation of Kashmir, that it must be devising an expedient legal methodology to do away the inconvenience without a due process. That luxury of due process has never been afforded to Kashmiris by India while smothering their aspirations and now the entity of the state as well at the altar of a majoritarian dominance.
