Srinagar: Notwithstanding the criticism of the arbitrary use of the Public Safety Act (PSA) in Kashmir through 2019 – the year J&K was stripped of its special status – the law has been consistently invoked by authorities to keep people “out of circulation” in the restive region.
A report by J&K Coalition of Civil Society (J&KCCS) and Association of Parents of Disappeared Persons’ (APDP) said 662 persons, including a former chief minister and sitting MP, were booked under the PSA in 2019.
Of the total number of detentions, 412 were made after August 5 when the Centre scrapped key portions of Article 370 and followed with a massive clampdown and mass arrests to quell any protests.
Khurram Parvez of J&KCCS said they arrived at the numbers after collecting information through habeas corpus petitions (challenging the PSA) to the J&K high court, successive RTIs and fieldwork.
The 100-page report criticises the government for its ambiguity over the total number of detentions. “There is no clear statement (from the government) on how many (people) were booked under the PSA,” reads the report titled Annual 2019 Human Rights Review.
“We are treating this (gathered) data cautiously as we anticipate more number of cases, which are yet to have surfaced either in our data collection or any list produced by the state,” it says.
After 1990, when the armed struggle broke out in the Valley, the PSA has been used rampantly to book people including separatists, their supporters and voices of dissent. In 2015, for the first time, the government disclosed in response to an RTI that 16,329 persons had been detained under the PSA since 1988.
Almost 95% of the detainees were from Kashmir.
There has not been a single year since the 90s when the number of detentions under the PSA has come down to two digits. In fact, there has been a steady increase in PSA cases over the years. When Kashmir witnessed mass protests in 2008 in the wake of the Amarnath land row, 366 persons were booked under this administrative detention law, as per the official data.
During the next two years, 711 persons were slapped with the PSA – when Kashmir erupted against double rape and murder of two women in Shopian district in 2009, followed by the summer uprising the next year. From 2011 to 2015 more than 734 persons were booked under the controversial law, the data shows.
The “abuse” of the PSA continued in 2016 when the Valley witnessed a six month-long uprising against the killing of militant commander Burhan Wani on July 8. During the first 100 days of the protests, at least 500 persons were booked under the Act – at least five persons per day. A media report in September last year said 921 people were booked under the PSA in 2016 after Wani’s killing.
Outcry to abolish ‘lawless’ law
In its 2011 report, the AI said that the government statistics on the PSA were “often inconsistent”. This inconsistency could be found in the government’s response to the erstwhile J&K assembly in January 2018 when it said only 525 persons were detained under the stringent law in 2016, almost half the number quoted in the 2019 media report.
The government reply also said 201 persons were booked in 2017 while the official data shows that more than double, 410 persons were booked under the law. The number of detentions went up to 510 in 2018.
Over the years, there has been consistent demand from international rights organisations and legal experts to abolish the law under which a person can be detained without trial for up to two years.
The 2011 AI report described the PSA a “lawless law”, documenting how it was being misused to detain people without trial, depriving them of basic human rights by “circumventing” criminal justice to undermine accountability and transparency.
Advocating its immediate abolition, the organisation said J&K authorities were using the PSA detentions as a “revolving door” – a detainee on being released by the court is immediately slapped with another PSA and the cycle continues till the authorities want him to be behind bars. “It is done to keep people the authorities cannot or would not convict through proper legal channels locked up and out of circulation,” said the report.
In his column in a local daily in January 2018, noted jurist A.G. Noorani wrote that in nearly 40 years of its operation, the PSA has “wreaked havoc” in J&K.
“Like all such laws, it is patently, manifestly and demonstrably unconstitutional…the detainee is sent to prison without trial. Inquiry by an Advisory Board is a farce. Courts have not always helped,” Noorani wrote, adding that had the law been enacted elsewhere in India, it would have been instantly struck down by the courts as it violates fundamental rights bestowed by the constitution.
The genesis of the PSA
The law was first brought by the government led by Sheikh Abdullah in 1978 to use against timber smugglers. However, the first person to be booked under the law was then president of Kashmir Motor Drivers Association (KMDA), Ghulam Nabi who had stood against Abdullah in the previous election on Janta Party ticket, thus marking the long political abuse of the Act which has continued till date.
What makes the PSA draconian is the denial of legal aid to a detainee. “A detainee doesn’t have the right to legal representation and challenge the arrest before the Advisory Board unless sufficient grounds can be established that the detention is illegal,” said former J&K advocate general M.I. Qadri.
Quoting section 13 (2) of the Act, he said the authorities need not even inform the detainee the reason for the action, if they decide that disclosing the information goes “against the public interest.” The PSA contains vague terms such as “security of the state” and “public order” and under section 22 of the Act, protection is provided for any action taken “in good faith”.
Adding to the woes of the detainees and their families, the J&K government in July 2018 amended the Act to allow authorities to lodge J&K residents detained under the PSA in jails the limits of the state (now two Union territories). The amendment was cleared when J&K had been under governor’s rule.
The controversial Advisory Board
Once a person is booked under PSA, the authorities have to refer the case to PSA Advisory Board within four weeks of the detention order, citing the grounds on which the detention has been made. The Board, as per the law, has to give its recommendations within eight weeks.
The Board was originally meant to keep a check on the government’s arbitrarily use of the PSA. To ensure it, the Chief Justice of the J&K high court was made part of the panel to appoint its chairperson and other members.
But in May 2018, the then PDP-BJP government cleared an amendment to the Act that excluded the role of the judiciary and vested the powers to select the chairman and members of the Board to a three-member panel of bureaucrats led by chief secretary. The Chief Justice’s role was limited in case sitting judges were appointed as chairman and members.
The modus operandi adopted by the authorities is that the district magistrate issues detention order under the PSA after police prepares a dossier against the accused detailing why he or she needs to be detained.
“Through an RTI, the district magistrates conformed that they were only approving the dossiers prepared by the police, without analysing them. We also came to know that even after passing of more than 40 years there were no rules framed under the PSA nor was any SOP in place to implement the Act. Everything is being done arbitrarily,” said Dr Sheik Ghulam Rasool, chairman of the J&K RTI Movement, adding there were numbers of instances when the high court had quashed detentions, but when the persons kept under the PSA had been re-detained.
Citing “abuse” of the law, Dr Rasool said between April 2016 and mid-December 2017, the J&K government referred 1,004 detention orders to the Advisory Board which confirmed 998 detention orders (99.40%).
During the same period, he said, the high court admitted 941 pleas seeking the quashing of PSA detention orders. Significantly, the court quashed 764 detention orders.
In other words, the court quashed more than 81% of the detention orders that the Advisory Board had upheld.
“This shows total misuse of the powers by the Board,” Dr Rasool said. “The high court quashing the orders proves it.” He said the information about the detention confirmed by the Board and quashed by the court was received through a separate RTI.
The law empowers Advisory Board to examine every detention order issued by the district magistrate or the divisional commissioner under J&KPSA, before taking the final call. Under Section 17 of J&KPSA, the order of the Board is binding on the government. It has also the powers to call for representation from the person against whom the detention order has been issued within eight weeks.
“But that never happens,” said Dr Rasool.
The fresh legal challenge
The PSA was one of the few controversial state laws which were retained by the Centre under the J&K Re-Organisation Act that bifurcated J&K into two Union territories.
Senior advocate at J&K high court, Syeed Tassadque Hussain has filed a writ petition in the high court challenging the continuation of the PSA.
“This law is volatile of the Article 21 to which amendments were made under the 44th amendment Act of 1979. But for the last 44 years the government hasn’t brought these amendments into force,” said Hussain.
According to him, since the entire constitution of India is now applicable to J&K, the amendments provide that no person could be detained without trial for more than two months and the advisory board chairman should be a serving judge of the high court.
“There is a direct conflict between the amendments and the PSA which allows a person to be detained without trial for up to two years and allows a retired judge to be members of the Advisory Board,” said Hussain. “Hence, the continuation of the PSA is in violation of Article 21.”