Price for speaking out: Sign conditional bonds or stay in prison

KT NEWS SERVICE. Dated: 10/22/2019 12:57:50 PM

Detenues caught in a bind

JAMMU, Oct 21: Political detainees in Kashmir, including top leaders, are being forced to sign a bond that will bar them from speaking or commenting on the “recent events” in the state as a condition of their release.
According to a report in The Telegraph, two women detainees who were released recently were required to sign a modified version of the standard ‘Section 107’ bond that is normally used in cases when a district magistrate uses his administrative powers under the Criminal Procedure Code to take someone into preventive custody.
Under the usual terms of the bond, potential troublemakers have to promise “not to commit a breach of the peace” or carry out any acts that “may probably occasion a breach of the peace”. Any violation of this promise will see the detainee forfeit an unspecified sum of money to the state government.
The new bond, however, ups the ante in two aspects.
Firstly, the signatories undertake to “not make any comment(s) or issue statement(s) or make public speech(s) hold or participate in public assembly(s) related to recent events in the state of Jammu and Kashmir, at the present time, since it has the potential of endangering the peace and tranquillity and law and order in the state or any part thereof for a period of one year”.
The reference to “recent events” likely signifies anything to do with Article 370 or the decision to bifurcate Jammu and Kashmir into two Union territories and scrap its status as a state.
Secondly, they will have to deposit Rs 10,000 as “surety” and undertake to pay another Rs 40,000 as “surety” for any violation of the bond. A violation of this commitment will also likely lead to their renewed detention.
It is unclear to what extent the modified Section 107 bond has been deployed, but The Telegraph report says that “scores of people… are believed to have been freed after they signed the bond, while several leaders – like former chief minister Mehbooba Mufti – have reportedly refused to sign it”.
Other reports over the past two weeks have indicated that all political detainees are required to sign a bond as a condition of their release, but have not stated whether those release agreements contained the new restrictions.
Several reports in the media recently have quoted family members of the detainees maintaining that they are being forced to sign bonds. In the case of detained youth, community bonds are being signed by a minimum of 20 people from the neighbourhood to secure the release of young men and boys.
Human rights activist Khurram Parvez told The Telegraph that nearly 6,000 people had been arrested in the clampdown over the last two months and that “many of them” had been released under the conditions of the new bond.
The earliest reports of conditional bonds for release of detenues surfaced as far back as August 18, when News18 reported that the government was focusing on four specific groups. According to that report, “The first group dubbed as “movers and shakers” consists of either members from the Hurriyat Conference or key political leaders. To deal with this group, the government had put several leaders under house arrest and detention soon after imposing curfew in the Valley. Another group is members of banned outfits and terrorist organisations. The government is planning to give a “free hand” to the Army to maintain peace along the border and restrict movement of terrorists. The third section under watch religious leaders and the government would harshly deal with religious leaders and arrest them immediately, if required, in case they try to instigate people for violent protests.”
According to that report the bonds were specifically mentioned for the fourth target group - stone-throwers, most of whom are teenagers. A strategy of "community bonds" has been adopted where 20 family members and acquaintances have to sign a bond, ensuring that the teenagers will not indulge in these activities again, according to that report.
The bonds reported in the case of political detenues and the case of the civil society women members last week appears to be different.
According to The Telegraph, state advocate-general D.C. Raina denied having seen the new bond but nevertheless defended it as being “absolutely” legal.
In particular, Raina said that any change in language did not take away the basic spirit of Section 107 of the CrPC, which was to maintain peace.
“It (the change in language) does not alter or take away the basic spirit. The language is only the format, the sense remains the same…. I don’t think that (considering the bond illegal) will be the right understanding. It falls within the purview of the law,” he told the publication.
“I have not seen that (the new bond) but from your expression (after The Telegraph read out its contents) I get it that it is primarily the added expression or manifested form of the same spirit of the language.”
The state advocate-general added that the J&K government had the right to tweak the Section 107 bond to make it more “viable” as long as the underlying objective largely remained change. Also, under the governor’s rule, the governor had the right to amend the language of Section 107.
However, J&K high court lawyer Altaf Khan, who was counsel for the women who signed the new bond last week, said that it “contradicts the constitution”.
“This bond is all new.… They can make changes but those changes have to be in accordance with the law,” he told Telegraph and also confirmed to Kashmir Times.
Legal experts and rights activists believe that these new conditions are problematic and unconstitutional.
The sought the opinion of legal expert Gautam Bhatia, who said, “Under Article 19(2) of the Constitution, freedom of speech can be restricted if there is an incitement to imminent violence. The Supreme Court has repeatedly held that advocacy – even of revolutionary views – is permitted as long as there is no incitement to violence. Section 107 of the CrPC, therefore, cannot be used in a way that makes the personal liberty of an individual conditional upon a wholly unconstitutional restriction of their right to free speech.”



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