The arbitrary and indiscriminate use of the Public Safety Act, 1978 to stifle political dissent in the Kashmir Valley shows a blatant disregard for the Constitution and the right to personal liberty enshrined therein. An examination of 100 cases in which Kashmiri youth were detained under the draconian PSA following the death of Hizb-ul-Mujahideen Commander Burhan Wani reveals that both the state executive and the judiciary are complicit in perpetuating this “lawless law.”
Ever since the youth uprising following Hizb-ul-Mujahideen Commander Burhan Wani’s killing by the Indian army on 8 July 2016, the Kashmir Valley has seen repression and human rights violations on a scale greater than ever before. A lot has been written about the deaths and injuries caused by pellet guns, but one of the greatest weapons in the government’s armoury has been the preventive detentions carried out under the Jammu and Kashmir Public Safety Act (PSA), 1978. The law, which has been described as lawless by the Supreme Court (A K Roy v Union of India 1982), has been excessively applied with over 500 preventive detention orders being issued between July and October 2016 (Masood and Ahsan 2016). While this may appear to be a small number, the arbitrary nature of the use of the PSA has led to a chilling effect. Nobody knows what conduct attracts detention under the PSA or who may be the next target. It has been used against political leaders, human rights activists, protesters, and even common criminals. Moreover, the uncertainty that comes along with a PSA order is such that it affects not only the detainee, but his entire family.
The article examines the manner in which the PSA had been used between July and October 2016 and the resulting human rights violations by analysing 100 PSA cases in which habeas corpus petitions had been filed. Six families of detainees have also been interviewed. Before discussing the arbitrary and indiscriminate use of the PSA in the time period mentioned above, the article also briefly outlines the powers given to the administration under the PSA and the history of the act.
The PSA allows the police to take a person into preventive detention without a trial or the actual commission of an offence. The grounds on which this can be done include preventing a person from acting in a manner prejudicial to the maintenance of public order or security of the state. In cases in which the conduct is said to be prejudicial to the maintenance of public order, the period of detention is three months, extendable up to one year, while in cases involving the security of the state it is six months, extendable up to two years. The act provides for extremely vague offences to be covered and is, thus, conducive to misuse. Acting in a manner prejudicial to the maintenance of public order has been defined in extremely broad terms to include
making preparations for using, or attempting its use, or using, or instigating, inciting, or otherwise abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order (emphasis added).
This circular definition permits practically any criminal offence to fall within the ambit of the PSA.
Democratic countries that still have preventive detention laws use these sparingly and primarily in times of war. Modern criminal justice systems rely on the presumption of innocence, that is, a person is innocent until proven otherwise through a free and fair trial. The concept of preventive detention completely circumvents trial and this presumption of innocence. It allows an executive authority to deem a person worthy of detention merely on “subjective satisfaction” as opposed to a trial requiring conclusive evidence (Jain and Jain 2011: 399). The standard is merely that the magistrate must, in their opinion, believe that there is sufficient cause. Thus, procedural safeguards to ensure that innocents are not incarcerated, are absent. In the case of the PSA, all criminals, no matter how minor the offence, are deprived of these safeguards because of such broad and vague definitions.
Targets of the PSA
Sheikh Abdullah, the leader of the National Conference, promulgated this law in 1977 in the form of an ordinance soon after his victory in the legislative assembly elections of 1977. He justified it by saying that the state needed a stronger framework to deal with insurgency from across the border (Ganai 2015). In 1978, the legislative assembly passed the bill to enact the PSA against vociferous opposition from separatist leaders like Syed Ali Shah Geelani. Though they protested widely, Abdullah relied on his majority in the house to pass the bill. At this time, the National Conference argued that the act was essential to clamp down on the timber smuggling in the state. To date, timber smuggling remains one of the grounds on which a person can be detained under the PSA (Chakravarty 2016).
However, the use of the act even in the period immediately following its passage was not to protect the forest cover as Abdullah had stated. The very first arrest was that of Gulam Nabi, a union leader, who had opposed the National Conference in the 1977 elections. The use of the act in the years to come was also primarily to stifle political dissent. Separatist leaders, such as Geelani, Shabbir Shah, Ashraf Sahrayee, have been detained under this act for periods exceeding 100 months.
In 2011, Amnesty International released a report about the PSA, highlighting its misuse to stifle political dissent (Amnesty International 2011). The resulting scrutiny resulted in amendments to the act to decrease the periods of detention from one year and two years to three months and six months (though extendable) on the grounds of maintaining public order and national security, respectively.
In the 130 days following Burhan’s death, over 500 PSA detention orders were issued to clamp down on the turmoil in the Valley. One of the orders that garnered significant public coverage was against the noted human rights activist Khurram Parvez. Of the 100 orders examined in this article, 79 were for alleged protesting and stone pelting. Fifteen orders alleged that the detainees had connections with or were part of the separatist or militant groups. Five were accused of being local leaders involved in organising mobs or instigating the youth to protest. Khurram Parvez was identified as “having secessionist ideology and being part of secessionist camps.” Further, three of these 100 orders were against minors.
The scope for arbitrary detentions under the PSA is tremendous. On an average, each person has been identified as having committed offences under three first information reports (FIRs). However, most of these FIRs are “open FIRs.” The police merely record that a certain incident has occurred, and even if some names are recorded, the FIR also states “and others.” Therefore, any person can be arrested under these FIRs as having been involved in the protests.
The scope for misuse is best highlighted by Khurram Parvez’s case. The police dossier listed four FIRs as the grounds for his arrest. However, he was not named in a single one of these FIRs. He was just one of those “others” to have been arrested as a consequence. Another case that highlights the scope of misuse is that of Abdul Rasheed Bhat. As per the records of his government job, he was present at work at the time of the offence, but was named under all three open FIRs listed in his PSA dossier.
As there was an open FIR for each protest that had taken place between July and October 2016, it is safe to say that there were thousands of open FIRs across the state. This means that the police have the liberty to list practically any person as having been involved in any FIR as one of the several “others.”
The most common line found in police dossiers is: “you along with a mob” were involved in a protest. Hardly ever are these “other” members of the mob named. Even in cases where damage is caused, the person injured or property damaged is rarely described. In Mohd Asrar ul-Haq v State of Jammu and Kashmir (2010), the Jammu and Kashmir High Court found the order to be vague because the materials did not list details such as accomplices, targets, etc. The application of the PSA was quashed as this was said to be too vague to allow for a reasonable right to representation. In 80 of the 100 cases analysed, the descriptions of the offences in the dossier are so vague and lack sufficient details to permit a person to reasonably argue against them.
In another seven cases, the grounds were partially clear, that is, some of the grounds were clear. As per the Supreme Court ruling in Dhananjoy Das v District Magistrate (1982), every single ground in the dossier should be clear individually. Thus, even these seven orders would qualify as being vague. Only in 13 cases, were the place, date, and offence sufficiently described to permit the person to be able to argue against them. This flies in the face of the right to be informed about the grounds for your arrest. It is impossible to defend against charges about which you are not made aware. A litany of PSA orders has been quashed by the high court on grounds of vagueness over the years. It would be reasonable to expect these 87 orders to meet the same fate, albeit after a few months of detention.
Non-application of Mind
Such arbitrariness is made possible because the safeguards provided within the act are not adhered to. The first and most important safeguard is the fact that the police cannot detain a person under the act itself. The local police forward a request to detain a person under the PSA to the superintendent, who (if he deems fit) prepares a “dossier” laying down the need for preventive detention. This dossier is then sent to the executive authority empowered to pass an order under the PSA after considering all the facts in question. Under the act, this power is vested with the district magistrate and divisional commissioner. However, this safeguard has proven highly ineffective as magistrates mechanically approve most orders.
In every single order analysed for this study, the grounds laid down by the magistrates were copied from the police dossier. This itself is considered a compelling indicator of the non-application of mind as per the Supreme Court ruling in Jai Singh v State of Jammu and Kashmir (1985). The communication typically states that having considered “the dossier and other connected material” the order is passed. However, neither the nature of this connected material is ever disclosed nor is a hearing given to the detainee. Consequently, even if other material is considered, this is limited to the FIRs mentioned in the dossier. Thus, the magistrates just limit themselves to the information contained in the police dossier.
Though the standard of proof is subjective satisfaction of the magistrate and not conclusive proof, the magistrate is required to apply their mind to the evidence available (Jain and Jain 2011: 399). The fact that the executive has failed to apply its mind is clear from several fundamental errors in the orders examined for this study. Even if other material has truly been considered, these errors would mean that the detaining authority has failed to apply its mind properly in regard to that material. These errors have been discussed below.
Delay in issuing PSA orders: In 53 of the 100 cases, there were delays ranging between seven days and as many as 69 days between the last alleged offence committed and either the first point of arrest or the date of the PSA order. The logic of preventive detention is that arrest under an ordinary law is not sufficient as there is a possibility of bail, and consequently, for the period of trial, there is a risk that the person may be at large and continue with their activities. Thus, the logic of preventive detention is that immediate and swift action is required without wasting time for a trial to take the person into custody.
However, this is defeated when there are large delays on the part of the executive itself and, thus, the preventive detention is not justified. The Supreme Court has on several occasions held that such delays that make the grounds for detention stale lead to the invalidity of the order unless the order explains the reason behind the delay (Rabinder Kumar Ghosel v State of West Bengal 1975; Anand Prakash v State of Uttar Pradesh 1990). Expectedly, none of the orders examined for this study did any such thing.
The case of Bashir Ahmed Bhat underscores this point. There was a delay of 43 days between the dossier prepared by the police and the execution of the PSA order, and this was merely due to the executive dilly-dallying over the matter. Such a case smacks of lack of application of mind.
Detainee in prior custody: In one- fourth of the cases, detainees had already been formally arrested for offences under regular criminal laws. Thus, the question of preventive detention should not have arisen as the detainees were already in police custody and could not have been possibly involved in further wrongdoing. The very phrase “preventive detention” loses its meaning if the detainee is not in a position to commit an act worthy of preventing. Just apprehension that the person will receive bail is not considered sufficient to take a person into preventive custody as per the Supreme Court’s ruling in State of Jammu and Kashmir v Vijay Kumar (1982). An exception is that the authority may acknowledge that the person has been arrested and may receive bail and must then show why there is a risk upon his release. It must also show why the normal criminal process is not sufficient to address the case, even if the person is released on bail. However, most dossiers studied do not mention the prior arrest.
In as many as 65 cases out of the 100 examined, detainees were in the illegal custody of the police prior to the PSA order being passed, that is, they were in the custody of the police without being formally arrested. Thus, they would not have been able to avail of rights such as being produced before a magistrate within 24 hours. The PSA seems to be a preferred route to convert illegal detentions to legal ones by passing a preventive detention order. In these cases too, the logic of preventive detention is lost, and clearly show the manner in which the PSA is being misused.
Impossibility of commission of alleged offences: Some of the cases clearly indicate that the executive could not possibly have considered anything apart from the police dossier. For, if they had, they would have known that it was physically impossible for the accused to have committed the offence alleged in the dossier (Syed Imtiyaz Hyder v State of Jammu and Kashmir 2012). In five cases, the detainees were either under arrest or were in the illegal custody of the police at the time of commission of at least one of the alleged offences, making it impossible for them to have been present at the place where the offence had been committed.
The case of Abdul Rasheed Bhat, discussed above, is another case in which it was impossible for him to have committed the offence, though he was not in police custody. As per government records, he was at work at the time of commission of all the alleged offences. In spite of this, the magistrate passed an order under the PSA after having considered the dossier and “related material.” Bhat could not conceivably have been in two places at the same time. Fortunately, he was informed of such an order against him, which gave him the time to have it stayed before it was executed. The bizarreness of the circumstances ensured that the court had no hesitation in staying the execution of the order.
Juveniles being detained: Three of the cases analysed pertained to juveniles who had been detained. This is against international human rights laws and the Juvenile Justice Act. However, following the Amnesty International report in 2011, the PSA was amended to specifically exclude its application to minors. In spite of this, juveniles are still being detained under the PSA and have been sent to prisons in Jammu like other detainees. The police, in all three cases, listed their ages as being 18 or above. Such a lapse is facilitated by the fact that there are no special juvenile police units or child protection officers in police stations as is required under the Juvenile Justice Act. As the magistrates do not examine any material other than the dossier and do not even meet the detainee, they are unable to prevent such lapses.
Detentions in Jammu
Under the PSA, people can be detained far from home. In 1990, Jammu and Kashmir Governor Jagmohan amended the act to allow for detentions outside the state. His term saw detainees being sent to states all over India. This provision was, however, repealed in 1997. Detainees are now sent to jails in Jammu, which is about 400 kilometres away from Srinagar. In all but two cases that were examined, the detainees were sent to jails in Jammu—the primary ones being Kot Balwal, Udhampur and Kathua—even though there is a central jail in Srinagar. This is in spite of the Supreme Court stating that detainees should be held as close to their residence as possible to ensure ease of access for their families and lawyers.
However, not only has this directive been flouted, but also none of the orders issued have laid down reasons for such transfers. As a result of this, the detainees are unable to access their families or lawyers. This severely hampers their right to legal representation. Moreover, given that these jails are in Hindu- majority districts, lawyers such as Mian Qayoom, who has himself been detained under the PSA on several occasions, states that they face the threat of violence within these jails due to communal reasons.
Materials Not Supplied
The act itself allows for grounds of detention to be kept secret from the detainee for up to 10 days. However, this is permitted only in “exceptional cases.” In practice, the materials on the basis of which the person has been detained are never provided. In every single case, the advocates pleaded that the materials, such as the dossier and FIRs, on the basis of which the detention had been carried out were not supplied to the detainee. This violates the right of the detainee to be promptly informed of the grounds of their detention. A detention can be rendered illegal solely on the ground that materials have not been given to the detainee (Dhannajoy Das v District Magistrate 1982; Mohd Asrar ul-Haq v State of Jammu and Kashmir 2010). All the habeas corpus petitions filed in the court were based on documents that were obtained unofficially by the families of detainees.
However, even if it is believed that such materials were in fact supplied to detainees, but that lawyers put forth the failure to furnish these as a “routine ground,” the documents provided would not have been of much help as they were all written in English. As many as 67 of the 100 detainees did not have sufficient knowledge of English to understand such documents. While a large number of them were able to read and write Urdu or Kashmiri, no translations of the documents were supplied.
Right to Representation
The right to representation under the PSA is violated at several levels. The provisions of the act do not explicitly provide for such a right, and the few rights that are available are also rendered ineffective in practice. Under the PSA, there is no judicial recourse or appeal process. The only hearing that is conducted is the one before the PSA Advisory Board. However, no advocate may represent the detainee before the board. The report by Amnesty International in 2011 had found that this process was ineffective in practice and there was no clarity on how it was conducted (Amnesty International 2011).
The state government must “confirm” the detention within 12 days of the PSA order being passed. This process basically entails approval of the order by the home ministry of Jammu and Kashmir. Detainees are allowed to make a representation before the state government in the said period. Yet, several orders passed during the time period under study did not state that such a representation could be made. Among orders that said such a right is available, not a single one stated before which relevant authority of the government such a representation could be made. It is unreasonable to expect detainees to be aware what this authority, merely referred to as “the government,” is.
The only judicial recourse available to detainees is then to file habeas corpus petitions in the high court, which allow for orders to be quashed. However, during the period under study, the right to representation was limited as lawyers across Kashmir were on strike. As a result, lawyers could only draft the petitions and the families of detainees had to appear before the judge.
Not surprisingly, this was not very effective as was highlighted in Abdul Ganie’s case. Abdul’s mother, an illiterate woman in her 60s, appeared to plead for his release. She was instructed by her lawyer to merely tell the judge in Kashmiri, given that she cannot speak English or Urdu, that her son was a minor. The lawyer assumed that the judge after hearing that the detainee was a minor would expedite the boy’s release. But, before the mother could inform the judge that her son was a minor and that she was seeking urgent relief, he set the date for a hearing and called for the next case. Subsequently, given the sensitive nature of the case, the advocate approached the judge in his chambers and had the period of detention shortened.
The Jammu and Kashmir High Court guidelines as well as those laid down by the Supreme Court state that a habeas corpus petition must be decided within a maximum of 15 days. However, the first response of the court on admitting these petitions has been to give four weeks’ notice to the state, except in a few exceptional cases. Subsequently, the state is given time to file a reply. As a result, the entire process takes three to four months, which is even longer than the detention period specified in cases where a person’s conduct is found to be prejudicial to the maintenance of public order. It is necessary to recognise this as a violation of the human right to timely and speedy judicial recourse, especially given that it is a case of personal liberty.
Families as Secondary Victims
The hardships of the families of detainees are not simply limited to the detention itself. The current circumstances in the valley and the manner in which these orders are executed serve to make life extremely difficult.
Take the case of Ghulam Rasool Reshi and his nephew Umar Nabi Reshi. They were both arrested in the middle of the night and their family was unaware of the same. When they found out what had happened, they rushed to the police station. The police did not give them any reason for their arrest for almost a week and only assured them that they would be released soon. Daily visits to the local police station and higher police authorities at the district headquarters ensued for a fortnight. The police tried to use the leverage to get the family to turn in a couple of stone pelters in the area. When they refused to do so, the duo were slapped with the PSA and shifted to Kathua. Visiting their detained relatives meant a long journey to Jammu during turbulent times in the Valley. According to Mian Qayoom, the families also faced the risk of communal violence during these visits.
Further, the fact that a habeas corpus petition can only be filed at the high court means Ghulam Reshi’s siblings must travel to Srinagar on every date. Hailing from Pulwama in South Kashmir, one of the areas most affected by the uprising, they have to start extremely early in the morning to reach Srinagar safely. Twice, the court dates have fallen on Fridays, the most turbulent days, as a result of which they could not make it to Srinagar and the proceedings were delayed. And even when they made it to the court, the lack of a lawyer meant that they were not able to effectively argue their case as what happened in Abdul Ganie’s case discussed above.
Each family has had to face a large number of hardships, some because of the arbitrary procedure and others because of the circumstances prevailing in the Valley. Perhaps the starkest example of this is the case of the minor Zubair Ali Shah. Soon after his detention, his mother died of shock.
These families are undergoing tremendous mental strain as a result of this, and must be recognised as secondary victims of the PSA.
Amnesty International appealed for the repeal of the PSA in its two reports published in 2011 and 2012 (Amnesty International 2011, 2012). Following this, the act was amended to reduce the periods of detention and to exclude its application to minors as noted previously. However, this has proven largely ineffective. While the period of detention was earlier two years, it was reduced to six months, extendable up to two years. In practice it is extended two years in almost every case. Minors clearly still slip through the cracks as they did previously. Consequently, unless the government is forced to completely repeal the act, solutions need to be provided on an immediate basis by institutions responsible for the administration of the act.
Limitations of the judiciary: Approaching the judiciary is one way to address the problem. The first and foremost judicial solution is to file habeas corpus petitions in order to get PSA orders quashed. However, the limitation with this is the time taken and the flouting of guidelines. For instance, the Supreme Court guidelines in regard to time for disposal of hearings are violated by the high court itself. But more significantly, the limitation of the judiciary is that its orders are rarely followed.
Every single lawyer dealing with PSA cases—some of whom have been detained themselves—stated that even when the quashing order is presented to the police, they refuse to release the detainee. Either the detainee is charged under a new FIR or another PSA order is issued or his detention merely continues illegally at an interrogation centre. The detainee is only released at the pleasure of the police or the local member of the legislative assembly.
Consequently, the judicial response to the issue is toothless in practice. A unique case in this regard was that of Ashiq Dar in which the mother of the detainee appeared before the high court and pleaded that she was unable to travel to Jammu on account of her health as she was a cancer patient. The judge ordered that he be handed over to her from police custody in open court. However, this remains an exception and probably the only time such an order has been passed.
Another way to redress the issue could be in the form of guidelines issued by the higher courts. However, in practice, any guidelines laid down by the Supreme Court or the executive have largely proved ineffectual. The state high court itself, as seen above, does not abide by the timelines both laid down by the Supreme Court and by itself. The Supreme Court, as long back as 1982, stated that detainees should be held as close to their residence as possible. However, in 98 of the 100 cases analysed, the detainee was transferred to a jail in Jammu from Kashmir. The magistrates made no effort in any of these cases to justify the need to do this in spite of the Supreme Court guidelines.
The final judicial solution would be to declare the law as unconstitutional. However, this is an extremely unlikely scenario. The Supreme Court has always been reluctant to strike down laws enacted for national security. Most importantly, Indian constitutional courts look at the text of the law and its intended effect as opposed to its use in practice while adjudging the constitutionality of a law. Where the enforcement of the law runs foul of the Constitution, the Court typically issues guidelines in regard to its application, rather than finding the law itself unconstitutional. If the law violates any provisions of the Constitution, it must be seen as a case of misuse. Even if the misuse of the law is prohibited, it does not affect the constitutional validity of the law (Ram Krishna Dalmia v Justice Tendolkar 1958). As preventive detention is permitted under the Constitution, the Supreme Court is unlikely to find unconstitutional a law that carries out this permitted act only because human rights are violated in its implementation. Hence, according to a senior lawyer at the state court, the “black law” has been given a “seal of legitimacy.”
When asked why he still approached the judiciary for a resolution in spite of knowing that its orders carry little practical relevance in Kashmir, Mian Qayoom, the President of the Bar Association said:
Every time the high court delays proceedings, I prove that the judiciary, too, is an institution that is violating the human rights of Kashmiris. Every time its orders are disobeyed, I am proving that it is a failed institution. We have built up a body of work that proves that the judiciary is also a part of the oppressive structures put in place by the Indian state. In immediate terms, lawyers are playing no role in serving the detainees, except to give them hope that someone is fighting for them.
Limitations of administrative reform:
As observed previously, the executive authorities fail to apply their mind and mechanically approve requests from the police. Consequently, Mir Shafqat Hussain, a lawyer who has gotten over 6,000 PSA orders quashed over the years, attempted to approach the issue at the administrative level in order to ensure fewer PSA orders are passed. He explained to a magistrate the scope of his powers and responsibilities, as also the factors to be considered prior to passing an order under the PSA. He believed that a reason why they fail to apply their mind is often not malicious intent, but ignorance. He, in fact, managed to get as many as 27 PSA orders rejected in a single day. Soon thereafter, the magistrate was transferred.
There is lack of political will to curb human rights violations carried out under the PSA. The act has been heavily deployed as a political weapon to curb dissent in the state, especially during turbulent times. Amnesty International in both its reports on the PSA appealed to the state government to repeal the act, but to no avail. Nor has there been any change in the attitude of the administration with regard to the act even after a change of government in the state of Jammu and Kashmir. However, Amnesty’s report did result in a few amendments to the act.
To prevent the misuse of PSA under the prevailing conditions, the judiciary can be harnessed to ensure the effective implementation of safeguards provided in the act itself. This can be done through tailoring judicial guidelines to ensure that hearings are conducted within the specified time frame. For instance, a hearing should be scheduled after 10 days to ensure that the government has approved the executive’s order and another one after 40 days to ensure there has been an advisory board hearing. This way compliance with at least the basic guidelines will be ensured rather than a post facto nominal ratification of a procedure that was not followed in the first place when the matter comes up for hearing three months too late. The higher judiciary can also reprimand magistrates for their failure to apply their mind or follow the law as opposed to merely reiterating guidelines endlessly. Such an approach, though rare, can be seen in the case of Ranju Batra v Bhushan Kriplani (2014) before the Bombay High Court.
The administration can simultaneously be sensitised in regard to the application of the act, as was tried by Mir Shafqat Hussain. A sensitisation programme should be carried out en masse for magistrates across the state. However, it must be kept in mind that these solutions merely limit the misuse of the PSA. For those that believe that preventive detention itself should be prohibited, because it violates rights (Amnesty International 2011), the only permanent solution is to repeal the act. One hopes that the sustained criticism forces the government to either repeal the law or further amend it.♦
(The article first appeared in Economic and Political Weekly under the title Rule of the ‘Lawless Law’: Detentions under the Public Safety Act in Kashmir.)