27 November 2017 National Ordinance Impact

Fresh Footstep To Firefight

A new J&K law makes damage to property during protests punishable. Many find it draconian.
Fresh Footstep To Firefight
Tear Smoke
Shell bursts at a Srinagar protest in April 2017
Photograph by PTI
Fresh Footstep To Firefight

The 2016 Turmoil

  • Rs 16,000 cr lost in protests
  • 7,000 protesters were arrested
  • 5,000 cases were registered on account of public disorder
  • 3,000 incidents of stone-throwing
  • 24,000 civilian protesters were wounded
  • 90 civilians were killed by the police and security forces in bullet and pellet firing
  • 5 months was the span of the unrest

(Sources: Health Department, Police and the 2017-18 Economic Survey)


The ordinance has trigged a multi-­polar debate in Jammu and Kashmir because each party has its distinct take on the ephe­meral law. The government led by the Peoples Democratic Party sees it as a ‘compulsion’, its ruling partner—the BJP—finds it is ‘too harsh’, the police deem it ‘necessary’ and the separatists term it as ‘intimidation’.

Recently, the Jammu and Kashmir Public Property (Prevention of Damage) (Amendment) Ordinance, 2017, made any destruction of property due to “direct action” punishable. The October 25 rule also invites penalty on anyone calling for abetment of such offence. The “direct action” means strikes or demonstrations instead of taking the route of negotiation. The ordinance makes anyone who announces such public forms of protests that result in damage to public and private property liable to punishment with imprisonment for one to three years. It can also result in a fine equivalent to the market value of the property destroyed.

All this in the wake of large-scale protests that broke out last year in the Valley after security forces killed 22-year-old Burhan Wani. The ‘commander’ of Hizbul Mujahideen was shot dead on July 8. It led to no less than 3,000 stone-throwing protests, as reported from different areas of Kashmir over the next five months. Damage to public and private property during such demonstrations is punishable, according to the new ordinance passed two days after the union government announced the appointment of former Intelligence Bureau chief Dinesh­war Sharma as the Kashmir interlocutor.

A police report reveals that post-Wani stone-throwing incidents across Kashmir in July 2016 alone totalled between180 to 200 every day, with the involvement of no less than 40,000 people. The Economic Survey of 2017-18 points out that the 2016 civil strife caused “tremendous miseries, loss of life, the complete halt of economic activities in the Valley coupled with the loss of property worth crores of rupees”. Communication in the state became “very difficult” during the turmoil, the dossier says, owing to the scrapping of internet, mobile and phone services for long spells. “Hartals, bandhs, stone-­throwing, curfews, and restrictions immo­bilised the whole life in all the ten districts of the Valley,” finance minister Haseeb Drabu points out, quoting the survey. The general estimate of the losses caused between July 8 and November 30 in last year’s unrest is “more than Rs 16,000 crore”, besides the security-rela­ted exp­enditure during the 2016 unrest.

The Mehbooba Mufti government arg­ues that the conflict has reduced the state’s per-capita GDP growth. FDI has gone down, so have the exports and trade flows. There is a slide in domestic investment and savings, even as the conflict has redirected public expenditure to security-­related expenditure. Tourism has suffe­red, crippling the transportation sector too. The finance ministry describes the regular unrest in the Valley as the ‘new normal’, adversely impacting the econo­mic growth and infrastructural development. (This year the Valley remained shut for 39 days on the call of separatists.) The government says it has to calibrate the socio-economic policies towards the ‘new normal’, where the biggest challenge is to prevent recurrence of such events.

Minister of state for law and parliamentary affairs Ajay Nanda says the new law will stabilise the state’s economy and save both public and private property from damage during strikes. “It can even red­uce calls for strikes,” he adds. A senior official in the law department says the draft copy of the ordinance came from the home department. “We just vetted it,” he says, adding the rule had been drafted in accordance with the situation in the Valley and the state’s requirements.

The separatists are seething with anger. Mirwaiz Umar Farooq, a moderate leader among them, describes the ordinance as another form of intimidation by the NDA regime at the Centre. “The state government is a quisling; it is merely following what it is being told,” he tells Outlook. “The administration has launched an all-out operation against the militants. It is slapping old cases against the leadership, and using the Enforcement Directorate and the National Investigation Agency against us. The ordinance aims to muzzle dissent. We won’t let it happen.”

Mirwaiz argues that the separatists’ call for strike in the Valley is, unlike in other places of the country, on the insistence of people. “Last year we urged the people to end the strike, but they continued for five months. No one burns buses here in any case,” he points out.

The ordinance makes videography or photo admissible evidence in court, and bail conditional. That, the BJP says, is “too harsh”. Virender Gupta, a spokesperson of the party’s state unit, says the ordinance shouldn’t have been passed. “If some people damage property, the police have powers to act under various laws.”

The government counters the view. Minister Naeem Akhtar, who is the PDP-BJP coalition spokesman, argues “someone has to take the responsibility” in view of last year’s large-scale destruction of public property, especially schools and other institutions during protests. Last year in October and November, arson destroyed 32 schools in the Valley. The government puts the blame on separatists. “Social pressure will ultimately settle this problem,” adds Akhtar, “but legal action will be needed in extreme cases.”

The police find the ordinance a “deterrence” that is a law applicable all over the country. “Last year, when thousands of stone-throwing incidents took place in the Valley, we found no mechanism to book people involved in the damage of property—except under the Public Safety Act,” director general of police S.P. Vaid tells Outlook. A senior police official of Intelligence department says the law doesn’t bar anyone from giving a peaceful strike call. “Yet, on the ground, violence sometimes erupts,” he points out. “A certain section here is used to glamorising some forms of violence. From now on, anyone who takes a stone in the hand will have to pay for it. The new law also makes it difficult to get a bail.”

Lawyers see chance of misuse of the ordinance. “Not only will one be deprived of the right to dissent, your property may also be taken away.”

Lawyers see the new law as a violation of fundamental rights. The J&K High Court Bar Association describes the ordinance as worse than the Public Safety Act (PSA). Association secretary G.N. Shaheen notes hundreds are each year detained without charge or trial in order to keep them out of circulation under the PSA—a “lawless law”, according to Amnesty International. “The ordinance may be misused like the PSA. Some 8,000 to 30,000 people are estimated to have been detained under the Act in the past two decades,” he says. “The new law will not only deprive the person of fundamental rights like that to speak and dissent; it can even take away his/her property. The police and security agencies can misuse its clauses.”

The CPI(M) feels the law ministry has read the “whole issue differently”. Accor­ding to party state secretary Mohammad Yusuf Tarigami, the government, instead of trying to understand the issue holistically, has come up with a draconian legislation that will make life miserable for thousands of people. “The law will not reduce the economic cost of the conflict, but will inflict more pain on the people,” he tells Outlook. “The economic argum­ent is a big lie. Kashmir is no economic issue. The government must first understand why parties give strike calls. Why didn’t the government wait for the Asse­mbly session to pass the ordinance?”

Another separatist leader Mohammad Yasin Malik, who chairs the Jammu Kash­mir Liberation Front, notes the ordinance has been enacted at a time when the government also announced a Kashmir interlocutor (who the separatists refused to meet when he visited the Valley). “These are tactics to harass the separatists. We will be the first victim of it,” he adds.

Political commentator Gowhar Geelani feels the ordinance defeats the very purpose of interlocution. “The new law is draconian. For, it criminalises legitimate ways of dissent,” he says. “The government argues that the amendment to the existing law has been made to implement certain Supreme Court directions in a 2009 case. When was it not implemented for long, what was the urge to have this ordinance now?”

By Naseer Ganai in Srinagar

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