Terror of law is ‘rule of law’

SRINAGAR, OCT 10: The pernicious philosophy of ‘preventive detention’ has been so recklessly practiced for manipulating politics and distorting democracy in Jammu and Kashmir that today its latest avatar, the draconian Public Safety Act (PSA) has become the defining feature of the Indian State. National ‘additives’  promulgated from time to time, like the present Armed Forces Special Powers Act and Disturbed Area Act, have sufficiently toxified the home grown ‘tradition’ inherited from the autocratic rule of the Maharaja.

Since the promulgation of the PSA in 1978, ironically by the most popular government formed after the state’s first-ever free, fair election, it has been perfected into an art form to practice ‘democracy by other means’.  Historically, the tendency to lean on anti-democratic means has been the cutting edge of the authoritarian political culture jealously preserved by the ‘awami raj’ after overthrowing the autocratic regime of the Maharaja in 1947. Over the years and decades, this tendency has grown in monstrosity and become an integral part of Kashmir’s ‘democratic’ architecture. Each and every ‘son of the soil’, who came to wield authority, nourished it. Their cumulative contribution proves that cruelty is not wholly alien to the ‘docile’ native ethos.
All sorts of improvised definitions have been coined to achieve the original purpose of depriving citizens of their constitutional liberty and rights without any obligation to justify it: Defence of India Rules (DIR), Maintenance of Internal Security Act (MISA), COFEPOSA, NSA, TADA & POTA. All these are the species of a common ‘culture’ rooted in the tendency to short circuit basic norms of fair play and permanently disable the system of justice and safeguards.

Going to the roots of this culture, it becomes obvious that stalwarts of ‘awami raj’ fell to the charm of (Maharaja’s) autocratic governance and emulated him with relish. Syed Mir Qasim, in his biography ‘Dastan-e-Hayat’, records in detail instances of excesses and atrocities committed during and till long after the transition from autocracy to ‘democracy’ in 1947: ‘Senior leaders of the (ruling) National Conference carried blank arrest warrants in their pockets. These were freely used against political opponents and for extortion. Worst atrocities were committed in the name of security as people’s rights were trampled and justice murdered without compunction’.

Qasim recalls: ‘Atmosphere was suffocating; witch hunt of political opponents and rampant atrocities inflicted upon farmers and peasants in the name of ‘mujwaza’ (forced levy) and ‘surplus’ (mandatory procurement) were brazenly patronised. Instead of freeing our people from the yoke of Maharaja’s ‘zulum’ the ‘Azadi’ added to their burden. A disillusioned (poet) Mahjoor gave voice to frustrations of hapless victims: ‘chhe aes khotchan khabar chha nerrih mah wugraiah azadi’ (we live in perpetual fear of being fleeced by azadi).’

Freedom from autocratic rule was born in the cradle of an ‘Emergency Administration’, thanks to the tribal invasion from the ‘Land of the pure’. The shining symbol of the freedom struggle overnight donned the most inappropriate cap of ‘Chief Emergency Administrator’ with dictatorial powers. The relish with which he and his team lived up to the reputation of their anachronistic designation fatally hurt the constitutional safeguards and overturned democratic norms for good. It was poetic justice that the later events were destined to so change as to make them taste a dose of their own medicine, turn by turn. However, its human cost turned to be too high for succeeding generations.

The entire state was declared a ‘war zone’ in 1947 under the ‘Defence of India Rules’ (fore-father of today’s Disturbed Area Act and Armed Forces Special Powers Act). The war ended on 31st December, 1948 but the Emergency and its rigour continued long thereafter because rulers in ‘awami raj’ developed a taste for it. Indiscriminate detention, torture and deportation across the border to Pakistan were justified in the name of weeding out enemies of ‘awami raj’. Corruption thrived as the line between the ‘party’ and the ‘government’ became obscure. Repressive trappings of autocracy were fully owned to safeguard the nascent ‘azadi’.

 Intolerance for dissent was –and continues to be—the hallmark of that ‘azadi’, unlike elsewhere in rest of India. The first-ever general election held in 1951 became a life-time licence for ‘free and fair’ molestation of popular aspirations in the name of ‘national interest’. The reverse side of the coin showed up exactly two decades later when the (reincarnation) Plebiscite Front was banned to prevent it from contesting elections. In both cases ‘security of state’ was the cited reason and preventive detention was the weapon of choice: In the first case to bulldoze opposition and in the second case to protect an endangered species. Sanitised elections in 1972 delivered a ‘constitutional’ government, just as the 1951 elections had delivered the first ‘sovereign’ house of legislature.

By 1953, ‘azadi’ and ‘democracy’ had taken firm enough roots for change of guard. Democracy and constitution were turned on their head to get rid of a duly elected Prime Minister and throw him behind bars for ‘treason’—the weapon he had been using to banish his opponents. The Kashmir Conspiracy Case launched in 1958 was only marginally different from the treason case slapped on the very same ‘accused’ by the Maharaja’s autocratic regime only a few years earlier. That was how a carefully designed repressive culture of governance was indelibly imprinted upon the state’s politico-constitutional fabric. The next decade, from 1953 to 1963, witnessed improvisation in the technique of preserving and safeguarding ‘azadi’ and promoting democracy. Resort to ruthless physical force against political opponents and rivals was institutionalised in the shape of ‘peace brigade’, conceived as an exclusive policy instrument to perpetuate a perverse culture.

The Big Brother in far away Delhi watched in glee even as the roots of ‘affinity of ideals’, claimed to be the basis of the accession, started withering irreversibly. It was a straight deal with immunity from accountability: You have your way; I have mine; so long as you do not cross my path. The foundations of the ‘architecture’ laid in 1947 by replicating autocratic design provided sound basis for sustaining a make-believe super structure of constitutional democracy that needs crutches to stand.

‘Security of State’ was the excuse for undemocratic, unconstitutional overthrow of a prime minister in 1953. ‘Defence of India’ became the ground for detaining the second one in the late 1960s as he (Bakhshi Ghulam Mohammad) sought to recapture his throne snatched from him. Bakhshi had mobilised required strength to ‘democratically’ overthrow the GM Sadiq government on the floor of the House. MLAs had pledged their support to him in writing. A sworn nationalist, Bakhshi overnight became threat to national security and he was detained under the Defence Of India Rules (DIR). A new dimension was added to ‘democracy’: Threat to the favoured political species amounts to threat to the ‘defence of India’. And it continues to be viewed that way even half a century later.

Moral of the story: While rest of India is governed by the rule of law with all its flaws, J&K with its special constitutional status has the dubious distinction of being governed by the terror of law.