PUDR draws attention to the illegality behind the decision of the Central Government-ruled Jammu and Kashmir to ban Jamaat-e-Islami of Jammu and Kashmir on February 28, 2019. While attention has been focussed on the escalation and de-escalation of tension between India-Pakistan, the Central Government has intensified repression in the state. The J&K administration has picked up hundreds of persons and booked them under preventive detention laws. Thus far, reports suggest over 300 persons have been detained.
The ban on Jamaat-e-Islami is part of this ongoing repression. The Central Government has invoked the ban by simply issuing a gazette notification, which, as it turns out, is illegal. Drawing upon the Unlawful Activities (Prevention) Act 1967, the notification states that the JeI is an “unlawful organisation” and the ban has been invoked with “immediate effect” (S 3(3) UAPA). The ‘immediate effect’ clause is meant to override the time lag involved in forming a Tribunal and in adjudicating the Government’s decision (S 4(4)). However, for such a decision to be implemented, the Government must provide ‘additional grounds’ as mandated in the Supreme Court judgment of 1994, Mohammad Jafar v Union of India.
The UAPA, under which the JeI has been banned, stresses on the primacy of “grounds”: “Every such notification shall specify the grounds on which it is issued” (S.3(2)). Equally, the Tribunal, when formed, must be furnished with “all the facts on which the grounds are specified in the said notification are based” (Rule 5(ii) of Unlawful Activities (Prevention) Rules, 1968). ‘Grounds’ are not ‘opinions’ or subsidiary evidence; they comprise facts which are meant to substantiate the notification. Grounds, as pointed out in another Supreme Court decision in the context of preventive detention, Vakil Singh vs. State of J&K (1974), “must contain the pith and substance of primary facts but not subsidiary facts or evidential details.”
Therefore, without specifying ‘grounds’, the February 28 notification banning the JeI ceases to be lawful and the “immediate effect” clause loses credibility. Worse, the notification is an illegal order which in contempt of the apex court judgment of 1994. The cavalier attitude of the Central Government, in ignoring the provisions of the law, and in dismissing the apex court’s judgements, is a mark of arrogance. Perhaps, this arrogance is in line with the reasoning that since J&K is a “Disturbed” area and military suppression has been going on for three decades, there is no need to follow the Government’s own laid-down law.
Since the Government has illegally invoked the “immediate effect” clause, JeI members, sympathisers, supporters as well as their kith and kin automatically become liable to arrest and criminally prosecuted for their membership of, or support for, a banned organisation. Further, any form of legitimate protest on the ban can be treated as an instance of anti-nationalism. This is exactly what happened when the Governor of J&K, Satya Pal Malik, condemned the former People’s Democratic Party Chief Minister Mehbooba Mufti’s protest on the JeI ban as an ‘anti-national’ act!
Remarkably, JeI was banned for a few years between 1990-95. In 1997, it severed its ties with the militant organisation Hizbul Mujahideen and went so far as to snap ties even with one of its own longstanding members, Syed Ali Shah Geelani, when he formed Tehreek-i-Hurriyat in 2004. JeI then declared that it was keen on performing ideological and social work. Against this history, the February 28 notification has authorized a crackdown on JeI members and has led to the sealing and seizure of assets of members. The crackdown has a much wider impact, as the JeI runs schools which employ 10,000 teachers and teach as many as 100,000 students, who face a grim future for no fault of theirs.
The JeI ban and simultaneous arrests under preventive detention provisions are part and parcel of J&K’s history as a “Disturbed Area” in which legal impunity has operated for three decades. In a scenario where all forms of expression and activities by Kashmiris remain severely curbed and military suppression under “Operation All Out” continues, this ban furthers repression by turning legitimate activities into criminal ones and by coercing and silencing the resistance of the Kashmiris. PUDR is concerned about the intensification of repression on Kashmiris in the aftermath of the Pulwama February 14 suicide bombing and the February 26-27 Indo-Pak escalation and threats of military confrontation. PUDR condemns the ban and mass arrests and appeals to all democratic minded people to take note of the worsening situation in Kashmir which is in dire need of political healing, not further repression.
Deepika Tandon & Shahana Bhattacharya