While the Supreme Court has clearly laid out what constitutes a threat to the security of the state, the law has been repeatedly used as a tool of detention.
Despite the Supreme Court’s clear ruling on the Jammu and Kashmir Public Safety Act 1978 (PSA) where it said “whereas every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order and, every public disorder may not prejudicially affect the ‘security of the state’,” the state government has used the Act as a tool to keep human rights activist Khurram Parvez in continued detention even after a sessions court had ordered his release last week.
On September 14, Parvez was also prevented from leaving for Geneva to attend a UN Human Rights Commission session by the immigration authorities at the Delhi airport. On his return to Kashmir he was detained by the state police on September 16. The police had taken him into “preventive detention” because they “apprehended that he may cause a breach of peace”.
The Wire had reported how hours after a sessions court had ordered Parvez’s release on September 20, the police had not allowed him to walk free from the Kupwara jail and had first taken him to the local police station, from where he was subsequently shifted to Kothi Bagh police station. This, despite the sessions court reprimanding the police and the executive magistrate for the manner in which they denied several legal rights and rights of appeal to Parvez. Subsequently, the state government had booked him under the PSA, citing four cases against him, though his name had not figured in any of these four FIRs.
With the state administration bent on restraining Parvez’s right to move freely, in the warrant issued by deputy commissioner of Srinagar it was stated that his “role as instigator has surfaced” in the said cases. “You have achieved a prominent position in the separatist camp under a hidden cover of being a human rights activist. In the ongoing unrest, you have been found instigating and advocating the disgruntled elements to resort to illegal activities”.
The charges against Parvez also spell out that he wielded “a considerable clout in the secessionist circles”, “supporting the [protest] programme calendars” of the separatists and “utilising the youth to resort to violence or gathering so-called human rights activists”.
Despite the strong wording of the dossier against Parvez, who is chairperson of Asian Federation Against Involuntary Disappearances (AFAD) and programme coordinator of J-K Coalition of Civil Society (JKCCS), legally the case against him stands on weak ground.
In another famous case pertaining to use of the PSA as a tool of detention, the Supreme Court had clearly laid out what constituted a threat to the security of the state. The ruling had come in the case of the arrest of Kashmiri separatist leader, Shabir Ahmad Shah in May 1979. Shah, who had started his political career at the age of 14, and had already been to jail several times. This time he was booked under the PSA and his father, G.M. Shah, successfully contested his detention. Shabir Shah later went on to form Jammu and Kashmir Democratic Freedom Party.
In Shah’s case too, serious allegations were levelled. He was detained under section 8(2) of the Act by an order of the district magistrate, Anantnag.
In its order, the bench of Justice E.S. Venkataramiah and V.D. Tulzapurkar had in 1980 noted that Shah “was informed that the order of detention had been passed with a view to preventing him from acting in any manner prejudicial to “the maintenance of public order”.”
The charges against Shah were that he “originally belonged to Young Man’s League (Hamid group) which was an anti-national and pro-Pakistan organisation of young men” and along with his associates was “responsible for creating subversion and danger to the maintenance of public order by organising antinational demonstrations and protests.”
It was also stated that he was then the general secretary of the Peoples League, and he and his party “have shown open sympathy and have tried to elicit public opinion in favour of Mohammad Maqbool Bhat, a die-hard pro-Pak subversive element who has been sentenced to death on two occasions for murder, espionage and sabotage and is currently awaiting execution. Pamphlets and posters have been issued by the Peoples’ League in support of Mohammad Maqbool Bhat.”
It was also alleged that “much before the execution of Z. A. Bhutto in Pakistan, you and your party sent hand-bills and booklets to arouse the sentiments of the people against the state government.”
Finally, on the immediate provocation for the use of the PSA, Shah was told that “he had been collaborating with antinational, pro-Pak elements who come to hold secret talks and links with you. You are a dangerous and desperate character out to create chaos, disorder, subversion and the like to achieve your ends. Your remaining at large is prejudicial to the maintenance of public order and also to the security of the state.”
Writing the judgment, Justice Venkataramiah had taken into account the apex court’s judgment in Romesh Thappar v. The State of Madras,  stating that “an act may affect law and order but not public order, just as an act may affect public order but not security of state. It is for this reason that the Act defines the expressions “acting in any manner prejudicial to the security of the state” and “acting in any manner prejudicial to the maintenance of public order’ separately.”
As such Justice Venkataramiah said that when the detaining authority places reliance on both these bases in the ground, furnished to the detenu, then the order “has to be held to be an illegal one”. Hold the detention order of Shah as such and directing his release, the Supreme Court had noted that “whereas the order of detention stated that it had been passed with a view to preventing the detenu ‘from acting in any manner prejudicial to the maintenance of public order’, in the last paragraph of the grounds furnished to the detenu, it was stated that `your remaining at large is prejudicial to the maintenance of public order and also to the security of the state’.
Justice Venkataramiah wrote: “The distinction between the two expressions lies in the fact that while in the case of the former, the object of making preparation or instigating or abetting the use of force etc., should be with a view to overthrow or overawe ‘the government established by law in the state’, in the case of the latter, the object of the acts mentioned therein should be disturbance of public order.”
He also noted that at the time when the order was made, the district magistrate either had no material relevant to the security of the state on which he could act or even if he had information of those grounds, he did not propose to act on it.
The judgment had also cited an observation of Justice M. Hidayatullah in Dr. Ram Manohar Lohia vs State Of Bihar And Others, where he had noted that one has to imagine three concentric circles, in order to understand the meaning and import of the above expressions. ‘Law and order’ represents the largest circle within which is the next circle representing ‘public order’ and the smallest circle represents ‘security of state’. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of state.”
With the charges against Shah being much harsher in comparison to those against Parvez and the latter also not having any record of inciting violence of any form, his case is much stronger. In Shah’s case too the deputy commissioner relied on his alleged actions and his ability to cause a breach of peace without substantiating these in the absence of his name figuring in the FIR.
It is for these reasons that Amnesty International recently also called upon people to write to the state Chief Minister Mehbooba Mufti that Parvez be released “immediately and unconditionally”. Else, it demanded that he be charged “with an internationally recognisable criminal offence” and tried in “accordance with international standards”. Pending his release, Amnesty demanded that it be ensured that Parvez is not subjected to torture or any other ill-treatment and that he has regular and unrestricted access to his lawyers and provided adequate medical care and attention. It also called for lifting any travel bans imposed on the human rights activist.