New Delhi: Raising serious questions about the functioning and autonomy of the advisory board empowered to examine the correctness of detention orders, data supplied by the Jammu and Kashmir home department and the state high court have revealed that a majority of the board’s recommendations were quashed by the high court.
Stating that “the comparative data [are] compelling enough to demand a thorough review of the working of the advisory board,” noted RTI activists Venkatesh Nayak, coordinator of the Access to Information programme and Dr. Shaikh Ghulam Rasool, chairperson of J&K RTI Movement, said the role of the board had not come under intense public scrutiny except on occasions when human rights organisations commented on the manner of use of the J&K Public Safety Act.
The activists said two young students of the department of law, University of Kashmir had used the Act to probe the functioning of the advisory board established under the J&KPSA, and their findings had revealed that between April 2016 and mid-December 2017, the state government had referred 1,004 detention orders to the advisory board, out of which it had recommended confirmation in 998 cases (99.40%).
However, during the same period, the J&K high court admitted 941 cases seeking quashing of the detention orders issued under the J&KPSA and quashed 764 detention orders – or more than 81% of the detention orders that the advisory board had upheld – since March 2016. It is because of such a weak role being played by the board in upholding the rights of the citizens that the activists are worried the amendments brought to lessen the role of the high court in appointment of its chairman and members would only place more power in the hands of the bureaucracy.
State keeping board under its control
The activists claimed the two recent amendments to the J&KPSA have also revealed that the state government is “only keen on making this law tougher and keep the advisory board tightly under its control.”
Furthermore, the activists said, the board is supposed to examine the correctness of every detention order issued by the district magistrate or the divisional commissioner (competent authorities) under the J&KPSA. It can also recommend revocation of a detention order or confirm it based on the materials presented before it. Under Section 17 of J&KPSA, an order to revoke the detention of a person is binding on the state government, the activists said.
No information on advisory board
The activists said while the advisory board is itself a public authority under the J&K RTI Act, very little is known about its office or working except for some statistics. “Even the postal address for this board was not provided by the PIO of the J&K home department, let alone all the information that it is required to disclose proactively (suo motu) under the J&K RTI Act.”
They said two recent amendments to J&KPSA have shown that the government is only keen on making this law tougher and keep the advisory board under its control. They have demanded that “an independent inquiry be commissioned in order to make an objective assessment of the manner of implementation of J&KPSA as the first step towards its eventual repeal.”
No justification for latest amendment
Incidentally, the latest amendment to the J&KPSA was notified on July 13 by the J&K governor. Prior to this amendment, the activists said, no permanent resident of the state who was detained under this law could be lodged in a jail outside the state. The earlier provision was covered by Section 10 of the J&KPSA, which stated, “Provided that the detenues who are permanent residents of the state shall not be lodged in jails outside the state.” The amendment notified in July removed the prohibition on lodging of such detenues in jails outside the state.
However, no official justification for the latest amendment has yet been issued despite it being a statutory requirement under the J&K RTI Act 2009, the activists said, adding that the Act “requires every public authority to announce all relevant facts while announcing decisions that affect the larger public.” The act also requires every public authority to “give reasons for its administrative and quasi-judicial decisions to persons affected by such decisions.” Finally, it “requires the J&K government to ensure that public authorities under it disseminate accurate information about their functioning from time to time.”
But none of these obligations have been fulfilled in the context of the latest amendments, the activists claimed.
Amendment brought as ordinance in May
In a clear indication of how the J&K government wanted to wield a stranglehold over the advisory board, the activists said, an amendment was promulgated as an ordinance by the governor on May 22 this year when state legislature was in recess and the PDP-BJP alliance government was still in power to change the manner of selection of the advisory board.
Before this ordinance was promulgated, Section 14(3) of J&KPSA required the J&K government to mandatorily consult the Chief Justice of the J&K high court prior to making appointment. The amendment removed this mandatory requirement of consultation with the Chief Justice unless the government intended to appoint a sitting judge of the high court or a sitting district and sessions judge as chairman and members respectively. It also established a three-member search-cum-selection committee, chaired by the chief secretary and comprised of senior bureaucrats, to select the candidates for recommending them to the governor for appointment as chairman and members.
The activists said the PDP-BJP led government “did not comply with the statutory obligations of transparency under Sections 4(1)(c), 4(1)(d) and 23(1)(c) of the J&K RTI Act regarding the reasons for making these changes. Nor did the government explain to the people of J&K what circumstances existed that required the promulgation of this ordinance without waiting for it to be brought as an amendment Bill before the state legislature.”
Three-fourth budget used to recommend confirmation of detention orders
The activists also pointed out in 2016-17, the advisory board had used Rs 56.21 lakh, or more than 75% of its total expenditure of Rs 73.87 lakh, to recommend confirmation of detention orders which were quashed by the J&K high court later on. They said an RTI relating to its budget and expenditure revealed that the average cost of reviewing each J&KPSA detention case referred to the advisory board was Rs 7,357.56 (total expenditure for 2016-17 divided by total number of cases referred to the advisory board).
Meanwhile, the state home department noted that the J&K government had never commissioned any such study to assess the manner in which the J&KPSA is being implemented.