On 5 August 2019, the Indian Parliament unilaterally abrogated Article 370 of the Constitution, which provided a ‘unique status’ to the erstwhile State of Jammu and Kashmir (“Kashmir”). The move was challenged before the Apex Court, which, in turn, upheld its constitutionality. However, the Court directed the Government to conduct assembly elections in Kashmir. A region that has been bereft of any electoral process for a decade. Meanwhile, the Government’s brutality peaked, and consequently, people were subjected to abusive use of counter-terror laws to silence any form of dissent; what prevails in Kashmir is nothing but a ‘deafening silence’. It is high time that India brings these ‘counter-terror laws’ in consonance with its international obligations and refrains from curtailing the ‘right to free speech’ in Kashmir, which forms a basic human right.

After the abrogation of Article 370, an increasingly autocratic and repressive regime emerged in Kashmir. The erstwhile State was reduced to the status of a union territory, with New Delhi appointing a Lieutenant Governor (“LG”) to look into the day-to-day affairs of the territory. Now, the recent amendment to the J&K Reorganization Act 2019 has bestowed even more sweeping powers to the LG (a centrally appointed executive), leaving the people of Kashmir at the complete mercy of New Delhi. Importantly, the Parliament’s move on abrogation has encouraged widespread misuse of counter-terror laws to suppress any form of dissent. Of these counter-terror laws, the Unlawful Activities Prevention Act 1967 (“UAPA”) has been instrumental for New Delhi to keep the people of Kashmir grounded. The Indian Government’s own data provides evidence of rampant and abusive use of UAPA in Kashmir. In July 2024, the Indian Home Ministry released data showcasing the number of UAPA cases registered across India from 2020 to 2022. The report revealed that out of 2,615 cases, around 947 were registered in Kashmir. This makes the total share of UAPA cases from Kashmir a baffling 37%, a State which hardly contributes one per cent to the country’s overall population.

Being charged under UAPA comes with harsh repercussions, including the potential seizure of personal property [Section 33]. Moreover, getting bail under UAPA is challenging due to its onerous conditions, leading to extended periods of detention without trial [Section 43D]. In a recent landmark ruling, the Supreme Court affirmed that “bail is the rule, and jail is the exception,” even for laws as severe as UAPA. What remains to be seen is whether the subordinate courts parallel this approach set out by the Apex Court or continue to walk a tightrope. Adding to these concerns is the recent announcement of Kashmir’s DGP to invoke an even more stringent law, the Enemy Agents Ordinance 2005 (“Ordinance”), against suspects. The punishment available under the Ordinance is limited to ‘death sentence’ and ‘life imprisonment’ [Section 3]. It risks criminalizing legitimate expressions of dissent, creating an atmosphere of fear, and potentially undermining civil liberties. Moreover, any individual charged under the Ordinance cannot be represented by an advocate without prior court approval [Section 11]. Limiting access to legal representation undermines due process and could further intimidate those charged under the Ordinance, silencing voices of opposition.

These counter-terror laws have become instrumental in supressing dissent in Kashmir. An example of this can be demonstrated by the case of Asif Sultan, a Kashmiri journalist who was imprisoned for half a decade under UAPA. He was booked for writing a newspaper column describing reasons which resulted in the rise of Burhan Wani’s (a Kashmiri militant leader) popularity. The Government’s target now has transcended beyond ‘individuals’ bringing organisations within its ambit. After declaring the Tehreek-e-Hurriyat an ‘unlawful association’ under UAPA last year, another major political outfit, the Jamaat-e-Islami, was banned earlier this year. This has forced most of its members to fight the ongoing legislative assembly elections as ‘independent candidates’ without formal political support.

International bodies, including Amnesty International and the United Nations, have repeatedly voiced concerns over laws like UAPA, citing its failure to meet international human rights standards. Similarly, a recent Human Rights Watch (HRW) report underscored India’s repressive actions, which range from arbitrary detentions to extrajudicial killings. India bears an increased responses a signatory to key international instruments like the ICCPR, which enshrines freedom of speech and expression as a fundamental human right [Article 19]. It is, therefore, imperative for India to abandon its iron-fisted approach to silence dissent in Kashmir and bring its policies in line with the standards set by these international conventions. For a lasting solution to the Kashmir issue, it is important that all stakeholders are taken in confidence instead of silencing them with institutional brutality.