Scan the newspaper of December 13 for a headline that reads `Jammu and Kashmir Liberation Front leader Mohammad Yasin Malik re-arrested'. You will not find it, because it did not happen — although the law mandated it. The State government was legally obliged to arrest Malik on December 12, because the 30-day parole it had granted him expired that morning. Instead it granted another 30-day parole to Malik and five others, an order of dubious legal legitimacy that flies in the face of the Public Safety Act (PSA), 1978. To heighten the farce, the government document (Home/PB.V/2414) granting extension of parole was founded on an earlier parole order that set free five other prisoners, but not on the decree releasing Malik from custody.
In November, Malik became the mascot of Chief Minister Sayeed's `healing touch' policy. He, along with a group of JKLF-linked prisoners, who were incarcerated for years on terrorism-related charges, was released on parole. Malik was arrested in March on money-laundering charges, under the controversial Prevention of Terrorism Act (POTA). The JKLF leader protested his innocence, and subsequently obtained bail. However, before he was let out of the Kot Balwal jail in Jammu, he was re-arrested under the PSA. The Act is a unique, State-specific preventive detention legislation that allows the Jammu and Kashmir government to incarcerate for up to a year without trial persons it believes threaten the security and integrity of India.
On November 11, the State's Home Department issued an order (Home/PBV/2269) granting Malik "parole for a period of 30 days in the first instance with immediate effect on the terms and conditions annexed". These conditions, like the parole order Frontline has now accessed, were kept secret even from Malik's legal counsel Zafar Shah. The order, issued under Section 20 of the PSA, provides for the temporary release of prisoners "for any specified period without conditions or upon such conditions specified in the direction [and] as that person accept". Malik, currently hospitalised in New Delhi for the treatment of a kidney condition, was unavailable for comment, but Zafar Shah asserts that his client had neither applied for parole nor accepted conditional release.
While no one Frontline spoke to was willing to say just what the conditions were, common sense suggests that they should have included a demand that he refrain from activity prejudicial to the state, the stated reason for the secessionist politician's incarceration. Out of jail, Malik threw himself promptly into political activity aimed at marginalising centrists in the All Parties Hurriyat Conference (APHC), notably People's Conference leader Sajjad Lone and the Srinagar religious leader, Maulvi Umar Farooq. He organised a series of pro-independence rallies, attacked the APHC's dialogue with Ram Jethmalani's Kashmir Committee, and, on one occasion in Sopore, even presided over a gathering where some 300 Jamaat-e-Islami cadre shouted pro-Pakistan slogans. He then arrived in New Delhi, and lobbied for passport to be issued to enable him to visit the United States. When this was denied, he admitted himself to the upmarket Batra Hospital for the treatment of a long-standing condition.
It takes no legal genius to see the flaws in the government's course of action. Section 20(3) also mandates that any person temporarily released "shall surrender himself at the time and place and to the authority specified in the order directing his release". Astoundingly, the release order bears no such time and place, nor the name of any authority. Malik was granted an extension of parole without his appearance before a competent authority, and without the State government even calling for the Criminal Investigation Department's records that would have established whether he met the stated conditions. Section 20(1) of the PSA makes clear that parole can be granted only for a "specified time", and not for indefinitely renewable periods as the parole order envisages. If such a manoeuvre were permissible, governments could allow well-connected prisoners to stay out of jail for ever.
An amendment to the PSA brought in 1988 seems to have been designed to preclude such abuse. Section 20(6) of the Act mandates that time out on parole will not be deducted from the total period of detention. If governments can grant parole for arbitrary periods, it could then use the Act as an instrument for political blackmail. Inconvenient political opponents could be arrested, then let out on parole, and threatened that they could, at any point in the future, be re-arrested and may have to serve out the rest of their life in jail. Interestingly enough, the government freed Malik although the JKLF leader chose not to move the High Court to seek redress against the use of the PSA against him. The High Court has, on several occasions in the past, struck down PSA detention orders it believes are abuses of the Act. "I'm a result-oriented lawyer," Zafar Shah told Frontline, "and am not too bothered about precisely why my client is out of jail. But I've never heard of the government granting parole to victims of the PSA."
If the Sayeed regime indeed believes that Malik does not deserve to be detained under the PSA, it is free to revoke the order of detention. It chose not to do so. The level of thought given to the whole affair is exemplified by the fact that the parole extension refers to Order 2270, which set free five others, but not 2269, which set free Malik. One explanation for the strange manner in which Malik was granted parole is that the State government acted with the tacit consent of powerful figures in the Prime Minister's Office (PMO) — notably Brajesh Mishra and former Research and Analysis Wing chief A.S. Dulat. It is speculated that the PMO hopes to use the pending PSA detention period as a stick with which to push Malik into dialogue with the Kashmir Committee. Past efforts to bring about similar outcomes have had no real success, but did not a little to deflect attention away from Malik's past record and vest him with political legitimacy.
Little has been learned from a decade's worth of misadventure. Law or no law, Malik remains out of jail, albeit in a limbo, short of real freedom. No one seems certain just what the State government is playing at, but the strange circumstances under which Malik's parole came about suggest that something decidedly peculiar is under way.