UT administration’s invoking of the Public Safety Act (PSA) has triggered a lot of heat and storm. It is now the Supreme Court that is expected to get into fire fighting, reports Masood Hussain
“PSA (Public Safety Act) is a must for running the affairs in the State. It is not a joke,” the then National Conference law minister, Ali Mohammad Sagar, famously responded to then PDP lawmaker Syed Basharat Bukhari in the erstwhile Jammu and Kashmir assembly in August 2009.
Bukhari had moved three changes in, what he alleged, the “most misused law” as he asserted the “the present turmoil and turbulence in the state owes much of its origin to the misuse, abuse, and overuse of this law.”
“No civilized state believing in rule of law can afford to have a provision like section 10(a) of the Act which provides that the order of detention cannot be deemed to be invalid even if the grounds of such detention are vague, non-existent, not relevant and not connected with the person to be detained,” Bukhari had told the assembly. “A democratic set up cannot afford to have such a law.”
Two years later, Omar Abdullah led government in October 2011, amended the notorious law through an ordinance. The amendments barred charging individuals below the age of 18 years under the law. It reduced the detention period without trial from one year to three months and detainees got their right to get the grounds of detention in their own language. Besides, it permitted the appointment of the Chairman and the members of the PSA (review) Board to a term of three years with the possibility of extending it by two more years.
Before moved out of Jammu and Kashmir after a decade, N N Vohra, the then governor, affected another amendment (in section 10) on August 1, 2018, permitting the law enforcement agencies to shift the detainees under the PSA to jails outside the state.
PSA is one of the controversial legacies of Sheikh Mohammad Abdullah. Legislated in 1978, to manage the separatism and the timber smuggling, Amnesty International has termed it “lawless”. Many think this law is more stringent in the entire basket of harsh laws that are in vogue across India. The adverse commentaries were a key factor to relax certain sections of the law. When the Jammu and Kashmir was downgraded to a UT and its special status was revoked, almost 150 state laws were binned. One of the rare survivors was the Jammu and Kashmir Public Safety Act.
When the amendments were initiated, however, authorities both the times avoided intervening in areas flagged by Bukhari, who, like Sagar also became the erstwhile state’s law minister. Before Jammu and Kashmir was induced into labour to ensure the birth of a Union Territory through surgical intervention, the two politicians became colleagues after Bukhari deserted PDP for NC. While Bukhari is restricted to his Gupkar Home, Sagar took half a year in moving from the MLA Hostel, a deemed jail, to Gupkar only to be booked under the Public Safety Act.
Sagar, a lawmaker since 1983, has been getting elected from Khanyar (earlier Zaina Kadal), one of the key old city constituencies, uninterrupted for the last six consecutive terms. That was perhaps why the Jammu and Kashmir in its dossier said that he has the “ability to disturb the public order” because he has “succeeded in mobilizing voters in the peak of militancy and poll boycotts.” Besides, it mentioned that the NC Secretary-General has been “vocal” against the abrogation of Articles 35A and 370 and alleged that was “instigating “party workers and has the capacity “to disturb the public order”. Convinced, the District Magistrate slapped a PSA against him. “I am satisfied that he was prejudiced to the maintenance of peace,” the order issued on February 5, reads.
His jail mates, who were freed, apparently after signing the undertakings, usually referred to as bonds, said Sagar is not keeping good health. “His right arm is suffering from some sort of tremors,” an NC lawmaker, who was recently freed, said. “Probably because of some unaddressed problem after surgery, he is unable to take his food properly.”
For running the UT of Jammu and Kashmir, Sagar is not the only politician who was slapped PSA. Naeem Akhter, Sartaj Madni, Hilal Ahmad Lone have already been booked a few more are in the pipeline if the grapevine in the corridors of power is to be believed. At least in two cases or more, corruption charges are expected to be leveled anytime in the future.
The detention orders under the PSA being signed by the respective Deputy Commissioners’ is based on multiple sources for making the case against the detainees. Though the area magistrate has his say in offering the inputs, the grounds of detention are usually based on the dossier that the police submit to the DM. It is solely the prerogative of the DM to feel convinced with what police say. It is usually being accepted but there are instances of the dossiers being binned by the civil administration officers.
In case of Naeem Akhter, the bureaucrat turned politician, the police dossier has given details of his “nefarious designs” that, among other things include suggesting students read Syed Ali Geelani’s autobiography, Wullar Kinaray; accusing Amit Shah of creating a Hindu Rashtra; speaking against the abrogation of Article 370 and 35A, and asking youth to stay ready for an agitation. It depends on the civil administration to pick and choose from the set of allegations that it receives from the police.
Rounding up of people under this law has always been interesting. Javed Ahmad Kathwari, a government employee was arrested by police from Jawahar Nagar and accused him of being a militant, who was responsible for killing Sohan Lal Mehra in September 1993 and attacked the security forces at Dalgate in May 1994. On the basis of the police dossier, Kathwari was formally booked under the Public Safety Act and flown to Sangroor.
On October 19, 1995, Vijay Mehra, son of Sohan Lal Mehra appeared before the court and submitted an affidavit. He declared that his father died a natural death in 1965. The accused was born in 1972. By the time, he was set free, Kathwaris had suffered a lot. Their only shop in Zaina Kadal was destroyed in a fire and their father, Ghulam Hassan was unwell.
This time, however, the PSA created a record of sorts when the government served the charges of detention to the two former Chief Ministers, Omar Abdullah and Mehbooba Mufti under this law. The third former Chief Minister, Dr Farooq Abdullah, is already in jail under the same law.
Given the importance of the two politicians to Kashmir’s ‘dynastic’ politics, these dossiers and grounds of detention were commented on from diverse quarters.
The police dossier against Omar Abdullah, the poster boy of Vajpayee’s foreign ministry, accuses him of “resorting to his dirty politics” and adopting “a radical methodology” for “instigating and provoking” people on Article 370 and Article 35A. It accuses him of “fanning the emotions” and “creating an environment of public disorder” and “an atmosphere of fear and chaos” and has allegedly told the people to get ready for an agitation.
In order to gauge his influence on people, the dossier mentions his ability to “convince his electorate to come out and vote in huge numbers even during peak militancy and peak boycotts.”
The Magistrate, however, made a reference to the police dossier, some of his statements as made by the prosecution and felt convinced in detaining Omar under the law.
Sara Abdullah Pilot, Omar’s younger sister, has challenged the detention order in the Supreme Court. On February 12, when the case was taken up, Justice Mohan M Shantanagoudar announced his decision to step back from the case. The two other judges justices NV Ramana and Sanjiv Khanna will now hear the case on February 14 when they will get a third member.
Sara’s arguments include that detention order was not supplied to the accused; it was “vague and irrelevant” lacking “material facts” and charges are “patently false and ridiculous”. The petition is reportedly saying that it was highly unlikely that Omar will indulge in activities prejudicial to public order and no fresh grounds exist to detain him after his earlier detention under Section 107 CrPC lapsed.
The police dossier about Mehbooba, the former Chief Minister and a BJP ally is too personal and commentators have termed it slurry. She has been referred to as a “hard-headed and scheming” person who is in “cheap politics” and has been resorting to “speeches glorifying militants” to create fears among the majority population. She has been accused of “creating a chasm between the minds of law-abiding masses”. Reading a “radical origin” in her party’s green flag, taken from the erstwhile Muslim United Front, the dossier indicates that the PDP’s origins have a “dubious nature”.
“The subject (Mehbooba) is referred, for her dangerous and insidious machinations and usurping profile and nature, by the masses as ‘Daddy’s girl’ and ‘Kota Rani’, based on the profile of a medieval queen of Kashmir, who rose to power by virtue of undertaking intrigues ranging from poisoning of her opponents to ponyardings (sic),” the dossier states.
Then the dossier makes a long list of her tweets and statements in which she is referring to – in response to special status withdrawal, “illegal and unconstitutional onslaught on our dignity” that reduces India to “an occupation force”. Her tweets and statements mentioning the change in Jammu and Kashmir’s demography and reducing Muslims to second class citizens, and her reactions to the road closures and her protest against disfiguring and mutilating militant bodies.
The Magistrate, in the formal grounds of detention, has skipped the slur and taken almost all the tweets on record to create the case for detaining Jammu and Kashmir’s first woman Chief Minister under the PSA. It does, however, refer to her “divisive politics” and promoting separatism about which different agencies have already submitted reports to the concerned.
As the reportage, a grand mix of the dossier and the actual grounds of detention appeared in the media, it triggered a huge embarrassment for the UT administration. Omar’s ability to get people to vote at the peak of the boycott was played against him. Akhter’s invoking of Geelani’s autobiography to get students to resume schooling at the peak of 2016 unrest became a charge against him in 2020. While the dossiers indicated how the people are being assessed by the security grid, the slur in the official data shocked many.
The Indian Express termed the charges “read like a fake WhatsApp forward”. The Hindustan Times said it is “ethically questionable, legally flawed, and politically counterproductive”.
“The Abdullahs and Ms Mufti, in the most difficult of times, when the street mood was laced with resentment against Delhi, and when terror groups from Pakistan wreaked havoc, have stood up for the Union,” The Hindustan Times editorial reads. “The current charges against them defy common sense — for it is almost an implicit suggestion that their backing of the Constitution and democracy merits punishment. Will this not strengthen those who are against India? The Centre may want to encourage a new force in Kashmir’s polity — but it must not happen by curtailing individual rights. Delhi is weakening its own political and diplomatic case on Kashmir.”
“The language used is objectionable, the case made out could pass off as farcical were it not for the seriousness of the issue, only the intent is clear,” sums up The Tribune. “And that is to ensure that the top political leadership of the Valley remains incarcerated. Questions about how that has helped the new administrators or ensured public safety, are again likely to go unanswered unless the courts intervene.”