Author - Akanksha Vashishtha
Introduction
States in India have the freedom to formulate laws that are conducive for their needs. Thereby, in the context of security, many of them tend to have separate laws for the prevention of unlawful activities. Fine examples of the same include, Maharashtra that has a Maharashtra Control of Organized Crimes Act,[1] Gujarat that has a Gujarat Control of Organised Crime Act,[2] and Chhattisgarh that has a Special Public Safety Act.[3] All these Acts exist alongside the nation-wide applicable Unlawful Activities (Prevention) Act, 1967 (the ‘UAPA’).[4] The Union Territory of Jammu and Kashmir also has a similar preventive legislation, called the Jammu and Kashmir Public Safety Act, 1978 (the ‘PSA’).[5]
The PSA was introduced in the erstwhile state of Jammu and Kashmir (the ‘J&K’) in the year 1978 by the then state government under the leadership of Sheikh Abdullah. The driving force behind its formulation was the rampant timber smuggling in the region during those times.[6] However, when the valley became a witness to militancy, it was transformed into a typical preventive detention law that allowed detaining of people for two years without any trial.[7] This transformation was made after the introduction of the National Security Act (the ‘NSA’) in the year 1980. This is evident if one looks at §8 of the PSA which provides for detention of both timber smugglers as well as those who are considered a threat to law and order.[8] Over time, various amendments have been made to the PSA in 1985, 1988, 2001, and 2012.[9]
This blog tries to critique the latest amendments incorporated by the government in the PSA, which is known to have put numerous political leaders in the valley under house detention. However, the post limits itself to the ground zero impacts of the amendment, precisely focusing on the people of the Union territory. The PSA has attracted quite a high amount of attention recently as it was under this legislation that scores of political leaders were detained in the aftermath of the abrogation of Article 370 of the Constitution.
Amendments
In 2018, the then J&K Governor N.N. Vohra passed an Ordinance that made changes to the PSA.[10] The Ordinance was identical to the latest amendments introduced by the government. However, after the abrogation of Article 370, not only did this Ordinance but the very existence of the PSA itself remained ambiguous as numerous state laws were to be repealed or amended to make them in sync with national legislations. Clearing the air, on March 31, 2020, the central government endorsed this Ordinance and incorporated those changes in §10[11] and §14[12] of the PSA.
§10 of the PSA provides for places and conditions of detention.[13] The government has omitted the proviso to the section, under which the detainees who were permanent residents of J&K could not be detained outside the erstwhile state. With the removal of this clause, detenues can be sent to any corner of the country.[14]
Furthermore, the original text of §14 established an Advisory board to suggest improvements in the PSA. Clause 2 of the section provided for a chairperson who is or has been a Judge of the High Court and two other members who have served or are qualified to serve as Judges in the High Court.[15] The appointment was to be made in consultation with the Chief Justice of the High Court.[16] However, the recent amendment replaces the qualifications essential to become a member of the board, i.e. the members need not have a judicial background. Also, the appointments are to be carried out by the government in consultation with a Search-cum-Selection committee with Administrative secretaries as its members.[17] Consultation of the Chief Justice of the High Court is required only when a Judge is being considered for the position of Chairperson.
Problems posed by the Amendments
The introduction of the PSA in 1978 was followed by the formulation of the National Security Act in 1980.[18] The provisions of both these legislations are strikingly similar.[19] Both give the government enormous power to act on its discretion. The legislations state that ‘if the government concerned is satisfied’ that a person is a threat to security, detention orders against the person can be passed.[20] §10A and §11 of the PSA tantamount to §5A and §6 of the NSA, respectively. The sections lay down that detention orders cannot be considered invalid merely on the grounds of vagueness, non-existence, irrelevance or proximity to the suspect. Mere satisfaction of the government is deemed to uphold the veracity of detention orders. Besides, the government has the power to make more rules, which cater to the needs of the PSA.[21] On the contrary, although the Chhattisgarh Special Public Security Act, 2005 ordains the state government with the power to enhance the provisions of the said Act, the rules must be placed for discussion in the legislative assembly.[22] However, the PSA doesn’t provide for any such discussion.
In 2012, after passing an amendment regarding the same, the PSA prohibited detention of minors.[23] However, in 2016, an estimated 400 individuals, a majority of them minors, were detained by the government under the PSA.[24] However tense the situation in the valley is, the PSA is a potential weapon for imposing arbitrariness to shun a reasonable political dissent. These instances justify it being called a ‘lawless law’.[25] Earlier, Pakistani and Afghanistani militants were sent to prisons all over the country due to prison overcrowding in Jammu. However, this was not the case with resident prisoners.[26] Repealing of the proviso under §10 in the latest amendment allows for sending detenues, who are permanent residents of the valley, across the nation and not within the Union Territory. The proviso was introduced in 2002. Not only is the amendment seen as another draconian provision but also as a complete violation of the fundamental right to life of the person detained and also rights granted to an accused in custody under Article 20 and 22.[27] Families find it incessantly difficult to contact detenues as most of the time there is an ‘incommunicado detention’ soon after arrest, where neither the relatives are informed of the arrest nor the place where the person has been taken.[28] In Joginder Kumar v State of UP,[29] the Supreme Court laid down guidelines that an arrested or detained person has the right to meet family or friends and socialize with them. This right is protected by Article 21 and 22(1) of the Constitution.[30] It is ceaselessly hard for relatives to contact prisoners while they are kept in the state prisons. Hence, little to no assurance of contact with relatives can be made if they are allowed to be kept anywhere in the country. In furtherance, the amendment is bound to put an emotional and financial toll on the relatives of the detenue.[31]
Over time, the judiciary has played a key role in protecting the interests of people from falling prey to the arbitrariness of the PSA. In the landmark case of Vijay Kumar v State of Jammu & Kashmir and Ors,[32] the Supreme Court held that detention of the appellant was illegal as the same could not be justified that his acts were ‘prejudicial to the security of the state’. The apex court relied on §13 as the detenue was not provided with the reason for his detention. Similarly, in State Legal Aid Committee v State of Jammu & Kashmir,[33] the detention orders were quashed citing §13 of the PSA. In Javed Ahmad Dar v State of J&K,[34] the detenue was released on the grounds of non-application of mind by the district magistrate while passing detention orders. On similar grounds, in Irshad Ahmed v State of J&K,[35] the detenue was released on ambiguity of charges. In many other verdicts, the High Court and the apex court have tried safeguarding the interests of people by maintaining the sync between the PSA and fundamental rights provided in the Constitution. In all these cases the courts tend to have kept Article 22 of the Constitution above §13(2) of the PSA which allows the government to not disclose certain grounds of detention in ‘public interest’.
The PSA provides for setting up of an Advisory board which determines whether the grounds of detention are plausible or not within six weeks from the date of detention.[36] With judges or those qualified to be judges assigned positions in the board earlier, the latest gazette notification tends to eliminate this eligibility. It provides for a government-nominated committee to select the members of the board. Further, a mandatory criterion of consulting the Chief Justice of the High Court has been eliminated from the procedure except when the appointment of retired judges is under consideration. Such an amendment goes entirely against the provisions of the National Security Act as well.[37] According to an RTI filing, between 2016 and 2017, the Advisory board found 99.4%, i.e. an estimated 998 of the 1004 detention orders to be valid. Further, during the same period, the J&K High Court quashed around 941 of these detention orders.[38] Limiting judicial participation has further downgraded the democratic element and upgraded the autonomy of the government in regulating these detention orders.[39] The functioning of the advisory board earlier made it expend 75% of its budget in passing detention orders, only to be quashed by the higher courts.[40] An entirely government-nominated board may be presumed to go further along these lines and squander the allocated budget.
Conclusion
It is alleged that the weekly arrest counts in J&K went to thousands, including minors, after the abrogation of its special status.[41] In the present circumstance, changes in the PSA do not render justice to either the rights of the people or the established statutes. With detainees already being kept in places with no contact with relatives, allowing their deportation in any prison jurisdiction of the country doesn’t seem to serve the government’s motive of normalizing the valley’s situation. Reducing judicial participation further aggravates doubts as the High Court itself has declared a majority of detention orders unlawful.
Unarguably, the ravelled situation of Jammu and Kashmir requires a compacted solution; this ought not to come to the detriment of the natural rights everyone has a right to enjoy. It is high time that the haphazard system of dealing with detentions in the valley is catered to with more sincerity by the government. Nevertheless, in the status quo, the amendments to PSA do not seem to contribute to resolving this strife pervading through centuries.
[The author is a Second Year B.A. LL.B. (Hons.) student at NUJS, Kolkata.]
[1] Maharashtra Control of Organised Crime Act, 1999. [2] Gujarat Control of Organised Crime Act, 2019. [3] Chhattisgarh Special Public Safety Act, 2005. [4] Jadallah, Alma Abdul-Hadi, Civic space in India: Between the national security hammer and the counter terrorism anvil, Centre for Strategic and International Studies (2018) pp. 61–72, Accessed 18 July 2020. [5] The Jammu and Kashmir Public Safety Act, 1978. [6] The Hindu, Explained: Jammu and Kashmir Public Safety Act, September 13, 2019, available at https://www.thehindu.com/news/national/explained-the-jammu-kashmir-public-safety-act/article29438694.ece (last visited on July 18, 2020). [7] Outlook, Farooq Abdulla slapped with PSA, an Act introduced by his father 42 years ago, September 16, 2019, available at https://www.outlookindia.com/website/story/farooq-abdullah-slapped-with-psa-an-act-introduced-by-his-father-42-years-ago/338801 (last visited on August 8, 2020). [8] Jammu and Kashmir Public Safety Act, 1978, §8. [9] Jammu and Kashmir Public Safety Act, 1978. [10] The Statesman, Governor amends Public Safety Act to shift detainees in jails outside J&K, August 18, 2018, available at https://www.thestatesman.com/india/governor-amends-psa-shift-detainees-jails-outside-jk-1502667951.html, (last visited on July 18, 2020). [11] Jammu and Kashmir Public Safety Act, 1978, §10. [12] Jammu and Kashmir Public Safety Act, 1978, §14. [13] See supra note 11. [14] Jammu and Kashmir Reorganisation (Adaptation of State Laws) Order, 2020. [15] Jammu and Kashmir Public Safety Act, 1978, §14(2). [16] Id, §14(3). [17] See supra note 4. [18] The National Security Act, 1980. [19] See supra note 2. [20] Jammu and Kashmir Public Safety Act, 1978, §8; National Security Act, 1980, §5. [21] Jammu and Kashmir Public Safety Act, 1978, §23. [22] See supra note 3, §18. [23] Jammu and Kashmir Public Safety Act, 1978, §8(iii) (f). [24] Human Rights Watch, India: Cease Wrongful Detentions in Jammu and Kashmir, October 15, 2016, https://www.hrw.org/ news/2016/10/15/india-cease-wrongful-detentions-jammu-and-kashmir. [25] Gaurav Bhawnani, Detentions under the Public Safety Act in Kashmir, 53(20) Economic & Political Weekly (May 19, 2018). [26] The Print, Modi govt. amends J&K’s Public Safety Act, withdraws privileges given to former CMs, April 1, 2020, available at https://theprint.in/india/modi-govt-amends-jks-public-safety-act-withdraws-privileges-given-to-former-cms/392983/ (last visited on July 18, 2020). [27] The Constitution of India, 1950, Article 20, 22. [28] Amnesty International, A lawless law detention under the Jammu and Kashmir Public Safety Act, 2011, available at https://www.refworld.org/pdfid/4d86f6292.pdf. [29] Joginder Kumar v State of UP, (1994) 4 Supreme Court Cases 260. [30] See supra, note 27, Article 21, 22(1). [31] Firstpost, NN Vohra amends public safety act in Jammu and Kashmir, Observers decry 'dictatorial' and 'draconian' move, August 1, 2018, available at firstpost.com/india/nn-vohra-amends-public-safety-act-in-jammu-and-kashmir-observers-decry-dictatorial-and-draconian-move-4863751.html (last visited on July 19, 2020). [32] Vijay Kumar vs. State of Jammu & Kashmir and Ors, MANU/SC/0127/1982. [33] State Legal Aid Committee v State of Jammu & Kashmir, MANU/SC/0965/2004. [34] Javed Ahmad Dar v State of J&K, 2010 (3) JKJ 296. [35] Irshad Ahmed v State of J&K, 2011 SCC OnLine J&K 265. [36] Jammu and Kashmir Public Safety Act, 1978, §16(1). [37] National Security Act, 1980, §9. [38] Human Rights Initiative, RTI reveals advisory board under J&K Public Safety Act spent 75% of its budget upholding detention orders which J&K high court quashed later on, August 2, 2018, available at https://www.humanrightsinitiative.org/blog/rti-reveals-advisory-board-under-jk-public-safety-act-spent-75-of-its-budget-upholding-detention-orders-which-jk-high-court-quashed-later-on (last visited on July 19, 2020). [39] The Print, Modi govt. amends J&K’s Public Safety Act, withdraws privileges given to former CMs, April 1, 2020, available at https://theprint.in/india/modi-govt-amends-jks-public-safety-act-withdraws-privileges-given-to-former-cms/392983/ (last visited on July 19, 2020). [40] See supra note 24. [41] See supra note 28.