Explainer: How the Public Safety Act Has Been (Mis)used in J&K

The global human rights body has called for a repeal of the contentious J&K Public Safety Act, which has been active for the last 42 years.

Note: This article was first published on June 12, 2019 at 7:30 pm and is being republished on September 16, 2019 at 11:35 am in light of Farooq Abdullah’s detention.

New Delhi: Amnesty International India was denied permission to hold a press briefing today in Srinagar to release their report on the phenomenon of detentions without charge or trial in the state of Jammu and Kashmir.

The global human rights body has also called for a repeal of the contentious ‘J&K Public Safety Act (PSA).’ The law has been active for the last 42 years.

The report is titled ‘Tyranny of a Lawless Law: Detention without charge or trial under the J & K Public Safety Act’ and was released online globally. However, Amnesty staff could not hold a press conference on the report in the state.

The state’s administration denied permission for their press event apparently because of the “prevailing law and order situation.”

“This Act is contributing to inflaming tensions between the state authorities and local populace and must be immediately repealed,” said Aakar Patel, head of Amnesty International India.

The report has examined about 210 case studies of detainees who were booked under the PSA and also looks at several legal and government documents.

According to government data, between 2007 and 2016, over 2,400 PSA detention orders were passed. Most turned out to be spurious, as 58% of them were quashed by courts. In 2016 alone, 525 people had been detained under the act.

Also read: Amnesty India Calls for ‘Impartial’ Probe Into Civilian Deaths in Kashmir’s Kulgam

The law allows for administrative detention of up to two years if a person acts in a manner “prejudicial to the security of the state.” It allows administrative detention of up to one year when a person may act in a manner “prejudicial to the maintenance of public order.” Authorities are not required to disclose any facts at the time of detaining a person.

From the cases examined, Amnesty has described a framework in which abuses of this law occur. They note that it includes detaining children, preventing bail, passing orders without due diligence on vague grounds, neglecting safeguards written into the act and detaining people far away from their homes.

71 of these 210 cases are what they call “revolving door detentions.” Here, detainees found themselves facing a sort of compounding of their detention where authorities would either issue new detention orders or file new FIRs against the same people, preventing their release.

Amnesty’s lead researcher Zahoor Wani says that the police seem to use the PSA as a “safety net” to detain people they suspect of issues, who may be released on bail or are likely to be given bail.

While police could charge people under regular criminal sections, this would involve a higher standard of proof and presumption of innocence. The PSA is thus handy for the state police, says Wani.

In a number of cases, magistrates were writing identical orders preventing bail to detainees. This indicates “non-application of mind,” notes the report.

They say that the implementation of the act has managed to circumvent the criminal justice system in the state and thus erodes transparency, accountability and respect for human rights.

Amnesty International has been tracking the issue of violations under this act for several years and has previously published reports on it in 2011 and 2012.