Enacted in 1978 to nail political detractors Public Safety Act has been consistently strengthened and abused by successive governments. While its advisory board, a safeguard meant to check its abuse, has been ineffective, inserted sections have limited scope of judicial redress, Hamidullah Dar reports
Shameema Begum of Rainawari sat quietly in the courtroom, closed her eyes and bit her lower lip suppressing the agony of separation from her son. The 14-year-old Naeem Ahmad Dar from Rainawari is lodged 500 km away in a Poonch jail under Public Safety Act (PSA).
As soon as Justice Sunil Hali ordered Naeem’s shift to Srinagar Central jail within two weeks, Shameema felt relieved and softly pronounced “Alhamdu lillah” (Thanks to Allah).
Dar is an example of PSA’s blindness to age too. Accused of indulging in stone pelting last year, Dar was first arrested on 24 May 2008 under an FIR No 45/2008 and lodged in Police Station Nowhatta under section 148, 149,353,336,427. Subsequently he was granted bail but was later booked and detained under a PSA order DMS/PSA/21/2009 on 11 June 2009 and lodged in Poonch Jail.
The court direction brings Dar close to his home, but he still remains detained. And then under PSA, judicial interventions have rarely been effective. Authorities have rearrested people released by courts under fresh PSA’s whenever they willed.
Enacted in 1978 PSA is considered a draconian law by constitutional experts as, over the years, successive governments sharpened its teeth without bothering about the misuse of the act. Senior advocate J&K High Court Syed Tassaduque Hussain who challenged the PSA in 2000 says, “In my view, as I had already filed a writ petition in the High Court challenging PSA, the present legislation that is PSA is constitutionally flawed because it is contrary to the spirit of Article 21 and 22 of the constitution of India as a mandate.”
Hussain substantiates his argument as well. “The recent decision of the court of appeal in England points out such subjective jurisdiction is, in fact, violative of the various conventions adopted by the UN general assembly. And in view of those conventions, Supreme Court of India has also laid it down in a string of decisions that UN Security Council’s conventions and the general principles of international law are to be read into the domestic legislation. So a domestic legislation which is contrary to the international law would require a serious interpretation keeping in view that even under Article 19, a statute is required to fulfill the requirement of reasonableness.”
Preventive detention in peace time is unknown in democracies such as England and the USA. Apparently, the Indian Constitution makers strongly felt the need of incorporating the provision for protective detention because the conditions prevalent at that time seemed to justify it. There were communal riots and subversive activities all around and measures were required to protect the new republic from such subversive elements. Later many draconian laws followed to tackle the situations that arose. And in most of the cases the laws were used to overwhelm the political rivals.
Taking a cue from the laws, Sheikh Mohammad Abdullah’s government introduced the Public Safety Ordinance in 1977 and accordingly the act was passed by state legislature on April 8, 1978. Abdullah’s motive in passing the act was to suppress his political opponents. “Sheikh Abdullah was irritated by the activities of Ghulam Nabi, the then president KMD (Kashmir Motors Drivers Association) who had supported Janata Party in 1977 elections. He sent him behind bars under PSA in 1978,” said senior advocate and President Kashmir Bar Association, Mian Abdul Qayoom. Nabi was PSA’s first victim and the first one to be released after high court revoked his detention order.
When Sheikh’s son-in-law Ghulam Mohammad Shah overthrew Farooq Abdullah’s government, he inserted section 10 (A) into PSA in 1985 to make it more strident. His motive was to curb the activities of Abdullah’s supporters who were becoming an irritant to his government.
Things took a nasty dive in 1987 when a strong regional political forum Muslim United Front (MUF) emerged and posed a strong threat to unionist parties like National Conference and Congress. “MUF candidates who contested election in 1987 were arrested and booked under PSA,” says Qayoom. MUF candidates had swept the 87 elections, but they were largely rigged to announce a Congress-NC coalition victory.
The rigged elections and the large scale detentions of MUF activists, many times under PSA, is often cited as a major reason for the outbreak of militancy.
Since 1990, after the eruption of militancy in Kashmir, the law was used freely to put people behind bars. In 1990, PSA was amended by Governor Jagmohan to make it possible for extending the operation of the act beyond the state, enabling the state machinery to keep detainees in the jails of India, outside the state. In the same year 942 persons were booked under this act and the number went increasing with every year. It is estimated that till date about 17,000 persons were booked under PSA. According to figures submitted to legislative assembly in this session on August 5, 253 people are currently detained under PSA. These include prominent separatist leaders like Syed Ali Geelani, Shabir Ahmad Shah and Nayeem Ahmad Khan since 2008.
PSA provides for detention without trial for up to two years giving state the legal authority to detain people without hassles. To keep the monster under control safeguards have been built in the act so that the individuals booked can approach courts for redress. Another important check was the institution of Advisory Board for the PSA. According to section 15 of the Act “In every case where a detention order has been made under PSA, the government shall within four weeks (from the date of detention under the order) place before the Advisory Board the grounds on which the order has been made.”
Under section 16 of the Act, the Advisory Board shall after considering the material placed before it and, after calling for such further information as it may deem necessary from the government and if in any particular case it considers it essential so to do or, if the person concerned desires to be heard, after hearing him in person submit its report to the government within eight weeks from the date of detention. The Board may at any time before submitting its report, after affording an opportunity to the person detained by being heard, determine whether the disclosure of facts is or is not against public interest. Such findings of the Board shall be binding on the government. The report of the Advisory Board shall specify in a separate part thereof its opinion as to whether or not there is sufficient cause for detention of the person concerned. It is a sort of court in itself headed by a retired high court judge.
Experts say the PSA Advisory Board in the state, fails in this count, as it has rarely checked its abuse. “Advisory Board is merely an extension of the detaining agencies as till date, I do not remember it has ever let off any person of the charges leveled against him. I have appeared as counsel in thousands of PSA cases and never found that the grounds have got sieved through an Advisory Board due to their falsehood”, says Qayoom.
“This is a point of constitutional importance because now subjective satisfaction has become the sole reason for detention of a person on suspicion that in future he would act prejudicially to the interests of the state,” says Hussain.
The case of Habib Hisham Pandit is an example of subjective satisfaction for detaining a person than sound allegations. Pandit was arrested under PSA in September 2002 and detention order was issued on October 31, 2002. He challenged the grounds of detention (Habib Hisham Pandit V. State and Ors 2003) in High Court and the court ordered revocation of his detention order after observing that, “subjective satisfaction was derived from records of police. Mere statement of giving details in grounds not same thing as supply of material referred in grounds. Detenue cannot be said to have been communicated grounds within the meaning of Article 22(5) of constitution of India and section 13 PSA. Representation made by detenue not considered by Advisory Board since same not forthcoming from record.”
The court observation shows how the Board that it does not see properly the content laid before it for scrutiny and thus become callous to the rights of a citizen? “Why should the Board (comprising of chairman and two members) displease the government by terming the grounds of detention insufficient? They enjoy high perks and privileges only because they tow the official line which otherwise can be no more at their command”, says an official in state government’s law department, wishing not to be named.
For the last nine years the PSA advisory Board is headed by Justice (retd.) M L Koul. Koul was appointed on November 22, 2000 for a period for five years. However, for unexplained reasons, government ordered his continuation till further orders. Further orders came in July 2008 when his term was extended further by three years uptill 2011.
During his tenure as chairman Advisory Board, Justice (retd) Koul was also appointed as Commission of Inquiry to inquire into the custodial death of a carpenter Abdul Rehman Padder of Larnoo, Kokernag (who was abducted and later killed by SOG personnel in a fake encounter at Ganderbal). The commission was later on wound up without any report being submitted.
Justice Koul, when contacted by Kashmir Life, refused to answer any queries about the functioning of the Advisory Board. “I am not bound to answer your queries,” he said on being asked about Board’s inability to emerge as a redressal tool under PSA.
Like other infirmities in the Act, the grounds of detention more often prove to be laughable in a court as their very nature is at times beyond comprehension. According to section 10-A (inserted by Act IV of 1985), an order of detention shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are Vague, Non- existent, Not relevant, Not connected or Not proximately connected with such person or Invalid for any other reasons whatsoever.
The section in itself grants absolute abusive powers to authorities. “Earlier if one of the grounds of detention proved wrong, all other allegations were declared false. However, government inserted section 10 (A) in the Act in 1985 so that if nine of the ten grounds proved wrong still the person can be kept in detention,” Says Advocate Qayoom.
One of the numerous examples manifesting the vagueness of the grounds of detention and the urgency of detaining agencies to put a citizen behind the bars on any pretext that clicks is the case of Mushtaq Ahmad Bhat V. State of J&K ors (2003). In this case the petitioner was first detained under PSA on January 24, 2000 which period expired on January 23, 2002. However, not content with his two years of captivity (detainment), fresh detention order was passed on February 8, 2002 on ground of prejudicial activities which he allegedly carried out through his friends and relatives by imparting instructions to them during ‘Mulaqat days’ (meeting days) in jail and in court premises while attending the court hearings at Srinagar.
The allegations were punctured by the High Court on observing that, “the grounds of detention are omnibus and too generalized open ended statements not supported by any material whatsoever when detenue all through was in detention under supervision and vigil of government. Detention order was declared illegal and unjustified, due to non-compliance with provisions of Art. 22 (5) and section 13 PSA.”
“There is a Supreme Court ruling that you must have fresh facts if you want to take a person into custody after expiry of his detention period. But here police is using the same grounds to re-arrest a person in brazen violation of SC ruling,” says Qayoom.
Many people allege that keeping detainees away from their home and hearth is violative of the constitutional rights granted to a citizen. By doing so, they maintain that government tries to inflict severe mental torture on the detainees. Advocate Qayoom also shares the view. “If a person commits murder he is lodged in the jail nearer to the place of crime. But under PSA a person is prevented from doing something, and kept in a jail hundreds of miles away from his/her home which is no way less than a punishment. A person from Kupwara is lodged in Kathua jail which makes it cumbersome for his family members, relatives and friends to visit him. This Act is more punitive than preventive”, says Qayoom.
The counterpart of the PSA at union level is NSA (National Security Act 1980). Regarding this act Qayoom says, “Supreme Court in its constitutional bench in 1982 said that any person detained under this act must be kept in a jail near to his home.”
Earlier people were jailed anywhere in India but after the Amendment Act VIII of 2002 it was made clear that the detainees who are permanent residents of the state shall not be lodged in jails outside the state.
PSA is a preventive Act meant to stop a person from doing something prejudicial to security of the state or maintenance of the public order. In 1985 its ambit was enlarged by adding clause 1 (a) inserted by Act IV of 1985 that brought timber and liquor smugglers under its whip.
PSA allows two-year preventive detention without trial for individuals “acting in any manner prejudicial to the security of the state or the maintenance of public order.”
To challenge the legality of detention by the government, a victim must file a constitutional habeas corpus petition under Section 103 of the Jammu and Kashmir Constitution, which is an analog to Section 226 of the Indian Constitution. Habeas corpus petitions filed against the state seek to challenge the grounds of detention carried out under the authority of law; they are filed only when an individual is known to have been detained by government agents.
“The Supreme Court of India issued a series of guidelines governing how courts are to handle habeas proceedings, emphasizing the need to minimize delay and adjudicate within 15 days,” informs Qayoom adding that these guidelines are not followed in Kashmir.
“We have an elected government in place claiming to be representing the people, but when it comes to amendment of the laws like PSA that they can do, they just reinforce their viciousness”, says Syed Kalim, a college lecturer.
