Constituting the occupation: preventive detention and permanent emergency in Kashmir

ABSTRACT

This article analyzes Indian occupation of Kashmir as a legal, social, and spatial process of asserting power through borders and jurisdictional claims, produced and reproduced through constitutional processes and legal institutions that have enacted generalized notions of emergency and crisis. We argue that the distinctive socio-spatial power structures established between India and Kashmir in a provisional capacity amidst war and partition at the time of independence have been legitimized through rights regimes established through the constitutional structure and institutionalized through laws, executive orders, and the judicial system. We examine how India's legal incorporation of Kashmir was embedded in the constitutional drafting process and the extension of fundamental rights to the region through presidential orders, and how this legal incorporation became sedimented through the work of the courts across time. Building on Ranabir Samaddar's discussion of “colonial constitutionalism,” we consider “occupational constitutionalism” as a form of foreign dominance and control produced through the annexation of part of Kashmir's territory and its legal sovereignty to India in the aftermath of independence and reproduced through a series of legal mechanisms and processes across time that institute a state of emergency and permanent crisis in Kashmir.

KEYWORDS:

• Occupation
• emergency
• law
• sovereignty
• Kashmir

Acknowledgment

We wish to thank Khurram Parvez, Parvez Imroz, A.G. Noorani, and Idrees Kanth for their contributions to the research and writing of this article. We also wish to thank Ashiq Hussian Bhat as well as two anonymous reviewers for their meticulous and thoughtful readings of the article. Their comments and suggestions have remarkably improved the analysis. A version of this paper was presented at the Annual Meeting of the Law and Society Association in Mexico City on June 22, 2017. We thank the participants for their helpful comments.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. For more on Kashmir uprising and the state's response in 2016, see Amnesty International (2016), JKCCS (2016), Peer (2016), and Waheed (2016).

2. Some of these recent cultural representations include Naseer Ahmed's graphic novel Kashmir Pending (2007); Shahnaz Bashir's novel The Half Mother (2014); Sanjay Kak's documentary film Jashn-e-Azadi (2007); MC Kash's debut rap album Rebel RepubliK (2011); Basharat Peer's memoir Curfewed Night (2010); Malik Sajad's graphic novel Munnu (2015); and Mirza Waheed's novels The Collaborator (2012) and The Book of Gold Leaves (2014), as well as the essays contained in two edited volumes of Kashmiri writings, Sanjay Kak's Until My Freedom Has Come (2013); and Fahad Shah's Of Occupation and Resistance (2013).

3. See especially Security Council Resolution 47 of April 21, 1948 recommending measures to end the war between India and Pakistan and establish conditions for a “free and impartial plebiscite to decide whether the State of Jammu & Kashmir is to accede to India or Pakistan.” Subsequent resolutions set up the mechanism for plebiscite under the UN Commission for India and Pakistan, demilitarization of the region, and the establishment of a ceasefire line and UN military monitoring mechanism to end hostilities. Korbel (2015 [1954], 97–117) discusses the complex factors framing the Kashmir dispute in the decade following Indian independence, including India's 1948 war with Pakistan, the UN resolutions on Kashmir, and the UN Commission's efforts to arrive at mutually agreeable terms for a plebiscite. See also Lamb (1991, 158–181).

4. Preventive detention laws have been repeatedly constitutionally challenged and upheld in different contexts, in the decades following independence (see A.K Gopalan vs. Madras 1950 (SCR 88); A.K. Roy, Etc. vs. Union of India and Another 1982 (SCR (2) 272)) as well as during the Emergency-era suspension of habeas corpus in the 1970s (see ADM, Jabalpur vs. S.S. Shukla, Etc. 1976 (SCR 172); Bhut Nath Mete vs. State of West Bengal 1974 (SCR(3) 315)).

5. While particular illegal preventive detention orders have often been invalidated for not conforming to constitutional requirements of legality or procedure, Indian courts have overwhelmingly validated the constitutionality of preventive detention laws in general on the grounds of necessity and security of state (see A.K. Gopalan vs. State of Madras 1950 (SCR 88); Haradhan Saha vs. State of West Bengal and Others 1974 (SCR (1) 778); A.K Roy vs. Union of India and Another 1982 (SCr (2) 272)) and as an “an evil to be suffered” (A.K Roy vs. Union of India and Another 1982, SCr (2) 272), even as the courts have recognized their incompatibility with a rule of law regime and the protections of liberty (Ram Krishna Bhardwaj vs. The State of Delhi and Others 1953, SCR 708) and have stressed the need for strict and narrow constructions of the law (Dr. Ram Manohar Lohia vs. State of Bihar and Others 1966 (SCR (1) 709)).

6. This was upheld in the Supreme Court case Prem Nath Kaul vs. State of J&K 1959 (SCR Supl (2) 270), which stated, “We must, therefore, reject the argument that the execution of the Instrument of Accession affected in any manner the legislative, executive and judicial powers in regard to the government of the State which then vested in the Ruler of the State.” The decision was followed in Rehman Shagoo and Others vs. State of J&K 1960 (SCR (1) 680).

7. Idrees Kanth (n.d.) in his unpublished dissertation provides many instances of the widespread indigenous pro-Pakistan and anti-India sentiments in J&K, as well as the everyday tactics of the surveillance state, drawn from secret police CID files.

8. The interim nature of the arrangement was made clear by N. Gopalaswami Ayyangar, a leading member of the constituent assembly who had acted as Prime Minister of J&K during the Dogra period (1937–1943) and who took the lead in drafting Article 370. See, for example, Ayyangar's speech to the constituent assembly, quoted in Tillin 2006, 53. The Supreme Court reviewed Ayyangar's stated reasons for including Article 370 in the Indian constitution in Sampat Prakash vs. State of J&K and Another 1970 (SCR (2) 365).

9. India's interests in the J&K constitutional drafting process were exemplified by their submission to the United Nations that the process would substitute for a free and impartial plebiscite of the people of the state – a submission that the United Nations rejected in March 1951.

10. See also the J&K High Court cases Kundan Lal vs. District Magistrate and Another 1970 (CriLJ 1365 (J&K)) and Sohan Singh vs. State 1972 (CriLJ 692 (J&K)); as well as the Supreme Court case Sampat Prakash vs. State of J&K and Another 1970 (SCR (2) 365).

11. The blatant rigging of the 1987 elections is considered a major factor leading to the outbreak of the armed freedom struggle. See, for example, Sumantra Bose (2003, 48–51).