Courts have condoned the misuse of Public Safety Act in Kashmir for 40 years 

Absurd and bizarre. Those words accurately describe the charges slapped to detain three former chief ministers of Jammu & Kashmir under the stringent Public Safety Act (PSA).

Mehbooba Mufti’s dossier says that her party’s flag is green, which shows radical intent. The former chief minister’s daughter responded by asking sarcastically whether BJP ally JD(U) is also radical because of its green flag? Didn’t the Election Commission approve PDP’s flag, she asked, and didn’t the Army wear green uniform?

Besides former chief ministers Mehbooba Mufti and Omar Abdullah, PSA has also been invoked against three other leaders – Naeem Akhtar and Sartaj Madni of PDP and Ali Mohd. Sagar of National Conference. Farooq Abdullah is already under PSA detention. This week National Conference parliamentarian Mohd. Akbar Lone’s son, Hilal Lone, detained since August 5 last was also slapped with PSA.

Both Omar Abdullah and Mehbooba Mufti have also been charged with using social media to provoke the masses. The dossier against the latter also states that she is a ‘hard-headed & scheming person” who is known for “dangerous & insidious machinations.” Her party symbol, a green flag with the images of an ink bottle and pen, is seen as ‘Radical’.

Omar Abdullah’s last tweet on the night of August 14, shortly before he was placed under arrest, was an appeal for calm “whatever be in store for Kashmir”.

Both Mehbooba and Omar Abdullah have shared power with the ruling BJP from time to time. While the latter was Union Minister of State for External Affairs during Vajpayee regime, Mehbooba headed the PDP-BJP alliance government from 2016 to 2018.

This is not the first time that the charges framed under PSA have been found to be vague, absurd and fail to stand the scrutiny of the law, but it is indeed the first time when the mainstream party leaders in such large numbers have been targeted.

PSA empowers the government to detain individuals whose actions can be seen as “instigating, provoking or disturbing, or is likely to disturb, public order”. It also allows the government to detain individuals without charge or trial or substantive evidence; and without disclosing facts about the detention, for a maximum of two years.

The Act has 24 sections with several draconian provisions. For disturbing public order, it allows detention without trial for three months, which can be extended to six, and for ‘threat to security of the state’ it allows detention for two years.

Interestingly, it is one of the few laws of the erstwhile Jammu and Kashmir, which have been retained in toto after the special status of the state was revoked and the state bifurcated into two union territories.

Enacted in 1978 by Sheikh Mohammed Abdullah explicitly for targeting timber smugglers, the law for decades was used as a tool of political vendetta by the local leaders. Post-insurgency in 1990, it has been used as a tool to instill fear amongst those suspected to be sympathetic to militants or separatist politics.

Soon after assuming charge as chief minister of Jammu & Kashmir in 2015, at the head the PDP-BJP Government, Mufti Mohammad Sayeed tried to revoke the detention of separatist leader Masarat Alam under the stringent Public Safety Act. Within days he was forced to retract following pressure from New Delhi.

When Jagmohan held the reins as Governor in the 1990s, the law was amended to pave the way for lodging PSA detenus in jails outside the state. The law was invoked on the most frivolous of grounds through the peak militancy years and the policy continued through the last three decades. In the recent past, it was being excessively used to target suspected stone pelters and many of the detenues have claimed that they were wrongly framed and confined.

A query, under Right to Information, by the Commonwealth Human Rights Initiative reveals that between March 2016 and August 2017, 941 petitions were filed in the J&K HC

for quashing of PSA. And 764 were quashed by the HC.

A common practice related to PSA was that while J&K HC quashed the charges under PSA , often calling them as “slapped without application of mind” and “unsustainable before law” the police would slam multiple PSA cases to keep suspects behind bars.

In several cases, the HC has held that PSA was used as a tool to ensure the suspect remains in jail even after getting bail in other cases. Many Kashmiri youth have languished in jails for over 10 years due to multiple PSAs invoked against them.

Senior lawyer, Mir Shafqat Hassan, who died recently and who’d fought the PSA detentions of many in courts, had been very vocal about the vagueness of the police dossiers in such cases.

In 2016, noted civil society and human rights Khurram Parvez was arrested under PSA and the dossier against him included the frivolous charge of him standing on the road and exhorting young men to pelt stones on the road. His detention under PSA was quashed by the court several months later.

One of the most glaring cases is of the septuagenarian lawyer and Jammu and Kashmir High Court Bar Council, Srinagar, president, Mian Qayoom, who was arrested under PSA on August 5 and was lodged in Agra jail, where his health deteriorated late January and he was shifted to Tihar jail after a brief check-up.

A petition challenging his detention in the Jammu and Kashmir High Court, last week, was dismissed. The petition was filed on grounds that the charges under PSA were vague, indefinite, uncertain, and baseless as also ambiguous and lack in material particulars and essential details.

The court observed that a preventive law is valid as authorities have no objective standard for ordering it and leaves the matter to subjective satisfaction. The court held that “subjective satisfaction of the detaining authority to detain a person or not is not

open to objective assessment by a court. A court is not a proper forum to scrutinize the merits of administrative decision to detain a person.” The court observed that “it is likely that after his release from custodythat he (Qayoom) will indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.” The court also said, “this matter lies within the competency of the advisory board of the home department of Jammu and Kashmir.”

The court added that the detenu made no representation and grounds of detaining authority were not rebutted by him and that the Advisory Board had already communicated the grounds of detention and informed him about his right to make representation.

According to Section 15 of the PSA, “in every case where a detention order has been made under this Act, the government shall, within four weeks (from the date of detention under the order) place before the Advisory Board constituted by it…”.

The Advisory Board is empowered to make recommendations on basis of each case. However, these recommendations are not binding upon the court or even the government, which can revoke the PSA in any case. The PSA gives unlimited power to the Government in terms of deciding the period of detention of the person (maximum two years, subject to provisions).

The Advisory Board can only confirm or reject the detention, which decision remains binding on the Government, but the term of detention remains the prerogative of the government, thus exposing such power to the dangers of abuse.

While in January, the Jammu and Kashmir administration revoked the stringent Public Safety Act (PSA) against 26 individuals which included a former Kashmir Bar association president, Nazir Ahmed Ronga, in December 2019, the Jammu and Kashmir High Court this month quashed the Public Safety Act (PSA) against five persons who were arrested on charges of stone-pelting. However, while dealing with the ailing senior lawyer’s case, a separate yardstick has been employed.

As of today, Kashmir may only be an experimental laboratory where a law, ironically enacted by the grandfather of Omar Abdullah, has come in handy. But when politics is guided by the dictum ‘Might is Right’, PSA or no PSA, sky will be the limit.