It is easy to sympathize with Sheikh Abdullah’s anxiety to preserve communal harmony in Jammu and Kashmir. Some extremist organizations have of late been specially active in the stale. While they may or may not be in touch with Pakistan and other external agencies interested in creating a feeling of uncertainty in that part of the country, the state government has to be vigilant. But it does not necessarily follow that it needs to arm itself with extraordinary powers, as it has done under the criminal law amendment ordinance. Indeed, it is not particularly difficult to show that inefficient governments incapable of providing an effective administration resort to draconian measures not so much to make up for their weaknesses as to cover them up. It can also be established that punishments, however deterrent, are not a substitute for an efficient administrative machinery. And while harsh punishments may or may not frighten anti-social elements out to create trouble, they arm the executive with arbitrary powers vis-a-vis ordinary citizens.
The ordinance contains several provisions which may not be consistent with provisions of the Constitution. It, for instance, provides for in-camera trials; it abridges the powers of lower courts and, indeed, of the proposed special courts because bails granted by the latter, too, will be subject to confirmation by the high court; it cuts short established procedures in respect of trials and so on. It also contains provisions which can easily be abused. For example, anyone can be arrested on the charge of spreading rumours and for three long years if the special judge is complacent and the police diligent enough to produce the necessary number of “witnesses” who can now be “bound down by the investigating officer to appear before the court on the date fixed for hearing.”
The ordinance is particularly harsh on newspapers and those connected with them as printers, publishers and journalists. If they offend against the law their printing presses can be confiscated and they themselves can be given up to life sentence, the minimum sentence being five years. No similar law exists or has existed in any state in the country and it is impossible to find a justification for it. While releasing the text of the ordinance in Srinagar the other day, the chief secretary himself admitted that by and large the press had acted responsibly in reporting and commenting on recent troubles in the state. Why then this extraordinary enactment? The chief secretary did not provide an explanation. Perhaps he could not. The Sheikh has a fondness for stringent laws. In 1977 he promulgated the Kashmir public safety ordinance which provided for virtually indefinite detention without even disclosing the grounds. In 1979 he pushed through an anti-defection law which he has found difficult to implement. Perhaps we do not need to look for another explanation for the latest exercise.