Invoking PSA against Farooq Abdullah is draconian, veteran leader subjected to gross injustice

On the night of 15th September, 2019, the Jammu and Kashmir administration invoked the Jammu and Kashmir Public Safety Act, 1978 (PSA) against the veteran leader of National Conference, the three-time Chief Minister of J&K, and a sitting Member of Parliament, and put him in detention for a period of 15 days. This unprecedented action happened after Mr Abdullah was kept under house arrest for a period of 42 days, since 5th August, 2019, with the revocation of Article 370 by the Central Government, without any authority of law. Following weeks of his house arrest, his colleague, Mr Vaiko had filed a habeas corpus petition in the Supreme Court, seeking his production before the Court, and asking the Government the legality of his detention. In order to avoid judicial scrutiny, the J&K administration overnight decided to detain Mr Abdullah under the PSA as a preventive measure, but the question still remains whether this detention order could post facto validate his house arrest for the 42 days. Many would say that it cannot, leave aside the issue of validity of his current detention under the PSA per se.

The PSA was passed in 1978 by Sheikh Abdullah Government essentially to curb timber smuggling, but was enacted in the interest of the security of the State and public order. It seeks to designate prohibited areas, protected areas, prohibit circulation of certain documents in the State, and provides for detention of certain persons, amongst others. Section 8 of PSA states that if the Government is satisfied that any person is acting in any manner prejudicial to the security of the State or the maintenance of public order, then such person can be detained as a preventive measure. The said power can be exercised by the Divisional Commissioner or the District Magistrate. Section 8(2)(b) further defines ‘acting in any manner prejudicial to the maintenance of public order’ as promoting, propagating, or attempting to create feelings of enmity or hatred or disharmony on ground of religion, race, caste, community or region; and making preparations for using or attempting to use force disturbs or is likely disturb public order, amongst others.

Sections 9-10 provide for provisions on the execution of detention order and the conditions of such order, whereby the Government is empowered to specify such conditions as to maintenance of discipline, including transfer from one place of detention to another place. The proviso states that no permanent residents of the State could be lodged in jails outside the State. Now there are several reports of detainees from J&K being lodged in jails in Rajasthan and Haryana, and if they are permanent residents, they cannot be detained outside the State. Section 13 then provides for grounds of detention to be communicated to the detenue ordinarily within 5 days, and only in exceptional circumstances, within 10 days, in order to allow an opportunity to the detenue to make a representation against his detention to the Government. However, the detaining authority can choose not to disclose the reasons if it is in ‘public interest’, which has happened in the present case in Kashmir, where thousands of Kashmiris have been detained under PSA, with no grounds of detention being communicated to them.

However, the Act did provide for checks and balances in the form of judicial scrutiny of detention orders. Sections 15-16 of PSA provide for the reference to advisory board, consisting of a Chairperson, being a retired Judge of the High Court, and two other members, to be appointed by the Government in consultation with the Chief Justice of High Court. Further, any detention order has to be forwarded to the Advisory Board within four weeks, including the grounds for the order, representation by detenue, and report of the officer who passed the detention order. Then the Board, after considering the material before it, may hear both the detenue and the government on whether the grounds ought to be disclosed to the detenue or not, and may call for additional information, ought to pass an order within 8 weeks on the validity of the detention. Importantly, the law states that the detenue does not have legal representation before the PSA Advisory Board. If the Advisory Board confirms the detention order, then the Government may detain a person for a period of 12 months if it’s a case of timber smuggling or a case of acting in a manner prejudicial to the maintenance of public order, or for a period of 2 years if he was acting against the security of the State. Thus, the PSA differs significantly from the ordinary criminal law, whereby the latter provides that no person can be detained beyond 24 hours without being produced before a Magistrate, and can have his own legal representation.

It is often argued that law on preventive detention is essentially preventive in nature and not punitive, and allowed under Article 22(3) of the Constitution. However, the Courts have been categorical in stating that to prevent misuse of the law of preventive detention, it has to be strictly construed and there has to be meticulous compliance with the procedural safeguards. In Shoiab Ahmed v. State of J&K (2017), the High Court of J&K held that “it is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order of three months, or any other period(s), is a punishment of that particular period's imprisonment. What difference is it to the detenue whether his imprisonment is called preventive or punitive? Further in cases of preventive detention, no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a 'jurisdiction of suspicion', The detaining authority passes the order of detention on subjective satisfaction. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law.”

However, none of the procedural safeguards mandated under Article 22(4) and (5) have been adhered to. In fact, even the procedure given under the PSA has not been followed, wherein the Advisory Board has given up the pretense of acting as a check on the absolute power of the Government to detain people. In May 2018, the then BJP-PDP Government brought an ordinance changing the composition of the PSA Advisory Board, wherein the Chairperson no longer needed to be a High Court judge, but could be a bureaucrat too. In that case, the concurrence of the Chief Justice of High Court was not required. The Board could now be appointed by the government on the recommendation of the Search-cum-Selection Committee consisting of the Chief Secretary (Chairman); Administrative Secretary, Home Department (Member); Administrative Secretary, Department of Law and Justice. This has expectedly resulted in the Advisory Board acting as a rubber stamp of the Government and mechanically confirming almost 99% of the detention order, thereby violating the letter and spirit of Article 22 of the Constitution, and several judgments of the Supreme Court.

To detain an 83-year-old veteran political leader without any charge or allegation, after keeping him under house arrest for 42 days on again no charge, is a complete violation of the rule of law, if any rule of law even exists now. And the Supreme Court’s complicity in allowing the desecration of the Constitution will haunt the institution, and the people of this country, forever.