Angana P. Chatterji 
Authoritarian political regimes attack pluralism, individual as well as collective agency and freedoms, collapse separation of powers and operationalise drastic laws. Such regimes govern through threat and coercion, lack transparency, centralise power, escalate militarism and weaponise social fault lines. Their government of people is increasingly imbricated with mobs, militias, and social and political violence.
The Narendra Modi-led government incorporates populism, nationalism and majoritarianism to weaponise religion, law, and politics and propel Hindu nationalists to unparalleled and illiberal dominance.
The government’s actions have enforced states of emergency across the country and in Kashmir. The racialisation of Muslims and Islamophobia results in unending official hostility toward social dissent. The Modi-led state’s juridical reconditioning of “unlawful activities” across India and in Kashmir contravenes freedom of speech and expression, and the right to peaceable assembly and to constitute associations or unions. Special, “anti-terror” laws and apparatuses are used for the political besiegement of minority communities, particularly Muslims, as well as human rights defenders, scholars, students, civil society activists, lawyers, and journalists.
The Unlawful Activities (Prevention) Act, 1967 (UAPA), amended in 1969, 1972, 1986, 2004, 2008 and 2012, was expanded by the Modi government in 2019. The UAPA enables special procedures to handle terrorism-related activities pertaining to individuals and organisations. While the law reordering “unlawful activities” was operational in post-colonial India, the current BJP government has pursued aggressive use of this law.
The UAPA permits the government to identify a person as a “terrorist” while denying them due judicial process and trial – actions previously allowed against groups and not individuals. In 2021, the Supreme Court adjudicated that those accused may be granted bail if their right to prompt trial is infringed upon, and in 2023, decreed that mere membership in an illicit organisation is tantamount to a UAPA offence.
Photo: Wikimedia Commons
The UAPA extends exceptional power and jurisdiction to detain and arrest people and levy charges. It asserts the supposition of culpability on putative claims. The act places the burden of evidence in certain cases on the accused to disprove blame placed on them in criminal offences. This violates the non-derogable right to be presumed innocent until proven otherwise under the International Covenant on Civil and Political Rights. The severest punishment under UAPA is life imprisonment or the death penalty.
Instituted via the National Investigation Agency Act of 2008, the NIA is India’s anti-terror task force for investigating and prosecuting actions and crimes impacting national security and sovereignty. From 2014, when the Modi-led BJP came to power, to 2020, reportedly 10,552 people were arrested under UAPA. Bail remains difficult for those charged under the act while a conviction rate of reportedly 2% attests to its overreach. Certain UAPA cases were allegedly framed using planted computer evidence and used cruel interrogation methods to extract information.
The law is harshest on Muslim Kashmiris, persons of minority descent, and the caste–oppressed. The UAPA is conspicuously absent in cases of hate speech, terror and violence concerning Hindu nationalist perpetrators. UAPA cases in India include Stan Swamy, Jesuit priest and human rights activist who died in custody in 2021; public intellectual Gautam Navlakha; activist Sudha Bharadwaj, released on bail after three years; Dalit and Adivasi human rights defenders in the Elgar Parishad case; and Umar Khalid, Muslim activist and scholar. In Kashmir, UAPA singles out persons of Muslim descent, including human rights defender Khurram Parvez; journalist Irfan Mehraj; and political leader Yasin Malik.
Kashmir, post-August 5, 2019
The Bharatiya Janata Party’s (BJP) use of extreme law and policy to further forms of coloniality in Kashmir seeks to actualise long-standing promises to “unify” India as a Hindu nationalist state. On August 5, 2019, Kashmir’s partial autonomy was countermanded through the nullification of Article 370 and revocation of Article 35A of the Indian constitution.
State forces swelled in number, operationalising drastic measures to contain civilian movement and civil disobedience, enforce curfew and cyber surveillance and heighten control over communication and information – in effect, to govern without consent. Persons were detained without warrants. The State Human Rights Commission was disbanded with over 639 pending cases of enforced disappearances, without establishing an equivalent body.
By May 2020, the Indian government removed certain legal barriers to permanent residency for non-Kashmiris in Kashmir to potentially reconstitute its demographic makeup. Demographic reconstruction endangers Kashmiri claims to internal self-determination and to external self-determination from alien exploitation and subjugation. In March 2022, India’s Ministry of Home Affairs (MHA) reportedly greenlighted the constitution of Village Defence Groups in Jammu and Kashmir, comprising armed Hindu militias, warning of increasing ‘terror-related’ threat levels, without evidence.
For decades, protracted political violence has rendered a life of rights impossible in Kashmir, where Muslims are in a majority. Kashmir is witness to enforced disappearances, gendered and sexualised violence, displacement, torture, extrajudicial executions, psyops, and the burial of civilians in unknown, unmarked, and mass graves.
Impunity laws – including the Armed Forces Special Powers Act (AFSPA, 1990), the now lapsed Jammu and Kashmir Disturbed Areas Act (1992) and Jammu and Kashmir Public Safety Act (PSA, 1978, amended 2012) – have offered de facto immunity to state forces personnel. Many in Kashmir understand themselves to be under Indian occupation, living in contexts akin to collective internment.
Arbitrary Imprisonment
The government alleges that the sacrosanctity of national security warrants preventive detention, justifying the distended ambit of “exception.” In Kashmir, the UAPA has been used to disallow bail, silence civil society dissent and social movements, punish expressions of grief, rage and mourning, and harm human rights work and media reportage. Increasingly, the UAPA is reportedly used to register cases against individuals in lieu of the PSA and cases booked under the it have been changed to UAPA. This law has been used to register cases against juveniles and against civil society members for sloganeering at a funeral. In 2014, 45 cases were booked under the UAPA and 255 cases in 2019 .
Khurram Parvez was arrested by the NIA on November 22, 2021. The FIR is dated November 6, 2021. The chargesheet is dated May 13, 2022, and invokes Sections 120B and 121A of the Indian Penal Code; Sections 13, 18, 18B, 38 and 39 of the UAPA; and Section 8 of Prevention of Corruption Act. The evidence is speculative and circumstantial and there are no confessional statements from Parvez as per reports.
The government has reportedly accused Parvez of “criminal conspiracy”,“conspiracy to wage war against the government” and of terror-funding, claiming him to be a recruiter for an organisation the government identifies with terrorism-related activities. These charges make bail difficult to secure. While in custody, Parvez was arrested by the NIA in a second case on March 22, 2023. A chargesheet has reportedly not been furnished. Previously, Parvez was disallowed from travelling to Geneva in September 2016 and later detained for 76 days.
Parvez’s targeting, arrest and detention underscore the grave risks confronting human rights defenders today and the potential of repressive laws like the UAPA to render them silent. The NIA alleged that Parvez was conducting investigations as a ploy to raise funds for terror activities and collect information on state forces personnel (who are perpetrators of human rights crimes) to assemble a dossier with the location and movement of troops and the structure of army camps.
The NIA reportedly claimed that Parvez bribed persons for information; met with persons dangerous to the state; communicated with members of Kashmir’s Hurriyat and journalists in Pakistan; and sloganeered against India in protests following Burhan Wani’s death in July 2016 (omitting that Wani’s death led to massive civil society protests across Kashmir).
The charges against Parvez misrepresent a human rights defender’s work on the impact of atrocities committed by state forces–which out of necessity – requires travel, inquiry and publication of the movements, actions, and details of state forces. International institutions of high repute have emphasised that Parvez is harassed and intimidated to jeopardise his work on human rights in Kashmir. A rights defender of extraordinary courage, Parvez’s leg was destroyed by a landmine during a citizen’s election monitoring effort in 2004. Organisations and actions in which Parvez played a leadership role have had significant, ethical impact: Jammu Kashmir Coalition of Civil Society, founded by eminent advocate Parvez Imroz; Association of Parents of Disappeared Persons; Asian Federation Against Involuntary Disappearances; and International People’s Tribunal on Human Rights and Justice in Kashmir.
Khurram Parvez, my valued colleague, remains in the custody of the state, his bail hearing pending. The UAPA case against Parvez exemplifies both the state’s malice toward Muslim-Kashmir and the severity of disorder imploding India’s democracy. His incarceration may constitute arbitrary detention.
The Universal Declaration of Human Rights, Article 9, stipulates that “no one shall be subjected to arbitrary arrest, detention or exile.” Unlawful detention comprises the arrest of an individual by the state without nonpartisan judicial treatment and the legal safeguard of a fair trial, and when an individual is held without legal basis for the dispossession of their freedoms.
The Indian state’s use of extreme laws normalises absolute nationalism and advances new forms of social erasure. Legal violence is presented as inevitable and necessary to national security, and prejudicial detention of Kashmiri Muslims is used as a method in nationalist governance. Arbitrary governance is amplified in the name of India’s well-being, saturating the lives of millions of Muslims in Kashmir (and in India) and their allies with everyday and exceptional violence. As Hindu nationalists call for genocidal violence against Muslims, India’s G20 leadership o attests to how the Modi-led government’s actions continue unchecked by international attention or consequences.
Angana P. Chatterji is Co-chair of the Political Conflict, Gender and People’s Rights Initiative, Centre for Race and Gender, University of California, Berkeley. She tweets @ChatterjiAngana.