The administrative preventive detention law Jammu and Kashmir Public Safety Act, 1978 (PSA) is one of the most stringent laws to uphold in what is referred to as the “security of the state and the public order.” For decades, thousands of Kashmiris have been incarcerated under this law for expressing political views contrary to official state narratives. Creating a state of exception where people are not ordinary criminals but extraordinary criminals who pose a threat to the national integrity of the Indian state, the PSA has stripped countless individuals of their basic rights. This reaches from people expressing political dissent by participating in peaceful demonstrations to political activists, human rights defenders, lawyers, journalists, and ordinary civilians. Both, reports by Amnesty International ( “A Lawless Law”) and the United Nations confirm that thousands of Kashmiris have been detained under this draconian law. In this blog post, I provide an overview of the basic mechanisms of the PSA and discuss the role of different state entities in applying the law.
The “lawless law”
The PSA gives power to the state to detain an individual without a trial for up to two years on the mere suspicion of an offense. The detention is legalized on the grounds of maintenance of law and order under section 8 of the act. By detaining a person on mere suspicion and without evidence, the administrative detention law creates a parallel system to the ordinary judicial process. Section 18 of the PSA provides for detention of up to three months which is extendable to one year in the case of persons “acting in any manner prejudicial to the maintenance of public order” and detention of up to six months extendable to two years in the case of persons “acting in any manner prejudicial to the security of the state”. Sub Clause 2 of Section 8 of the Act gives the administrative officials power to make orders detaining certain persons, thereby circumventing the ordinary judicial trials of the person detained under the law. Detentions under the PSA are non-bailable, and therefore can only be challenged through the writ of Habeas Corpus in the High Court of Jammu and Kashmir. The detention orders rarely survive judicial scrutiny as the grounds of detention are generally vague, arbitrary, or irrelevant, resulting in the quashing by the High Court based on non-application of mind by the detaining authority.
The process of detaining the individuals functions through a state mechanism that works through two types of state bodies: executive bodies, including complex bureaucratic and policing structures and an Advisory Board, and secondly, the judicial system. In the remainder of this post, I briefly analyze the working of these bodies.
The Role of Executive Bodies
The administrative detention is ordered by either of the two executive officers—a Divisional Commissioner or a District Magistrate. The PSA allows the detaining authority to pass a detention order outside its territorial jurisdiction. Once the detention order has been issued, the grounds of detention must be communicated to the detainee within five days; in case of exceptional circumstances not later than ten days. The detaining authority making such an order has to afford the detainee the earliest opportunity of making a representation against the order of government. The PSA however permits the detaining authority to preclude the disclosure of the facts that it deems “to be against the public interest of the state” under sub-clause (2) of section 13 of the act. The detaining authority is required to inform the state government of the detention and the grounds on which the order has been made. For the order to remain in force, the state government must approve it within 12 days. After a detention order has been passed, the government has to submit the grounds of detention to the Advisory Board within four weeks from the date of detention, a body constituted under the PSA (for more on the Board see below). Even though the decision of the Advisory Board is of high importance in terms of revocation of the detention order, the PSA explicitly bars the detainees from being represented by a legal counsel before the Advisory Board. Therefore, most of the detention orders are challenged before the High Court through the writ of Habeas Corpus with high rates of quashing. Yet, despite the routine illegality and quashing of orders, no police officer has ever been prosecuted for the blatant abuse of a law which affects the fundamental rights of a detainee.
The letter of the PSA provides for certain limited safeguards of the rights of detainees, such as the length of the detention order, but gives arbitrary powers to the officials executing the orders and protects state authorities even in cases of blatant abuse of this law. The PSA provides a complete bar on criminal, civil, or any other legal proceedings, “against any person for anything done or intended to be done in good faith in the pursuance of the provisions of this act”. Amnesty International notes the few safeguards provided within the law are a mere formality, which allows the “state to order detentions based on vague and general allegations, with the risk of officials fabricating evidence, and without allowing detainees to effectively challenge facts”.
The Role of the Police
Another important institution that is connected to serious problems surrounding the PSA is the police. The problems are twofold: Firstly, the PSA is operative in the state of Jammu and Kashmir without any “rules” or “standard operating procedures” that guide the police/bureaucratic executive authorities to make decisions regarding the detention of any person based on police reports/dossiers. The police departments, for instance, live in ambiguity over the procedure of determining the age of minors even after the amendment of the PSA for the protection of minors. Secondly, the police is repeatedly accused of brutal and arbitrary behavior. Individuals detained under the PSA allege arbitrariness, torture, and continuous harassment by the police.
The Jammu and Kashmir police initiate the process of detention by writing First Information Reports (FIR) or open-ended complaints called Open First Information Reports against unnamed suspects participating in a protest or crowd along with the “dossiers”, e.g. a document containing the grounds of detention. These dossiers are submitted to the executive body along with the FIR against the suspected person. For this blog post, eighteen such dossiers of individuals detained in 2016 were analyzed. The grounds of detention are similar to each other and based on general allegations of “stone pelting incidents”, “raising anti-national slogans”, “developing contacts with like-minded people affiliated with anti-national elements”, “instigating the youth to create law and order problems” and “to create circumstances which are conducive for secessionist ideology”. The grounds of detention filed by the police in these dossiers lacked evidentiary basis and the FIRs were filed by the police themselves without any independent witness accounts. The legal process under the PSA to detain a person does not require showing the actual occurrence of the crime. Shrimoyee Ghosh argues that the “legal process is thus entirely based in the shadowy world of police and intelligence agency’s perceived threats, apprehensions, profiling, paranoia, evidenced through the vaguest and most unsubstantiated of insinuation, absent documents, and incomplete dossiers”.
According to data obtained by local civil society organizations different police stations in Jammu and Kashmir in 2016 through the Right to Information, the PSA has been used to detain individuals in those areas where the most intense public protest was witnessed. In Pulwama, 42 persons were detained, 46 in Awantipora, 58 in Shopian, 44 in Kulgam, and 24 in Handwara showing a direct correlation between the volume of detentions and the intensity of public protests. Other police stations in Kashmir denied the information related to the detention. In areas, which witness fewer demonstrations, no detentions under PSAs were reported. The correlation between the detentions and protests explains how preventive detention intensifies during times of political unrest and public protest, with police and paramilitary forces orchestrating cordons and search operations, mass arrests, and night raids targeting neighborhoods perceived as particularly restive or volatile. The PSA thus establishes a system of detaining individuals who are not “ordinary criminals” but Kashmiris identified as a threat to the “national security and sovereignty” of India.
The Role of the Advisory Board
The Advisory Board is a body constituted under the PSA to examine the cases of detentions executed by the detaining authority. The PSA provides for a detention order to be referred by the state government to the board within four weeks of the date of detention. The board is headed by the former or a sitting judge of the Jammu and Kashmir High court and two other members qualified to be the judges of the High Court. The members are empowered to recommend revocation of a detention order or confirm it based on materials presented before it and prepare a report. The report of revocation or confirmation of detention by the advisory board is submitted to the state government within eight weeks. The decision of the board regarding the confirmation or revocation of a detention order is binding on the state government. Yet, the body constituted as a safeguard to control the abuse of law is a mere eyewash. From April 2016 to December 2017, 1004 detention orders were referred to the Advisory Board and 998 detention orders (which is approximately 99% of the total detention orders) were confirmed by the board. Analysing the expenditure of the board during this period , the advisory board used Rs 56.21 lakhs ( more than 75% of its total expenditure) to recommend confirmation of detention orders which were later quashed by the High Court. The board works as an authority which passes detention orders at the behest of the state to detain the individuals thereby working and functioning as an ancillary to the executive body.
The Role of Courts
Since the PSA circumvents the ordinary judicial trial, the only remedy available to the people detained under the law is a writ of Habeas Corpus challenging the constitutionality of the order. The availability of this redress is, however, subject to the financial conditions of the detainee and their family and the access to lawyers. Challenges of detention before the High Court are based on the violation of the fundamental right of liberty. There have been successful challenges to the constitutionality of preventive detention by political dissenters however the validity of the law as a whole was upheld by the Supreme Court of India time and again.
The information sought from the Jammu and Kashmir High Court concerning the Habeas Corpus petitions from March 2016 to July 2017 revealed that 941 petitions were filed during this period in the High Court seeking the quashing of the detention order under the PSA. 764 detention orders were quashed by the High Court. The orders of the High Court as well as judicial process are disregarded by the state authorities, which is “reflected in the number of petitions in which the lawyers for the state do not appear, do not file counter affidavits, do not produce the relevant documents or wait long periods before providing relevant information to the courts.” The high rate of quashing by the judiciary reveals that the detention orders are illegally passed and do not stand up to judicial scrutiny. However, there is a reluctance of the judiciary to establish accountability from officials, despite the pervasive misuse of law and illegal orders. As in one of the cases of Mohammad Akram Parrey, The court despite of evident breach of law by the state and a claim of entitlement of compensation by the petitioner showed reluctance to decide on the manner of implementation of the PSA.
After a detention order is quashed, the state authorities re-arrest and re-detain the detainees. The detention is continued under a new detention order resulting in a new round of legal proceedings. This practice of “revolving door” detentions frustrates the outcome of the proceedings affecting the rights of the person detained. The continuous preventive detention carried out under the pretence of legality results in the dragging of court proceedings thereby exerting economic pressure on the families of the detainee. When the state re-detains someone under preventive detention laws as the PSA, courts can protect the rights of detainee’s by declaring the state’s
proffered justification for re-detention illegitimate. However, “the judges, instead of seeking compliance with their release orders, tacitly accept the state’s practice of re-arresting detainees on illegitimate grounds”. Finally, the financial burden caused by the detention is worsened by the delays in judicial proceedings of Habeas Corpus petitions. In many cases, Kashmiri courts have accepted frivolous motions and justifications for procedural failures presented by the state thus effectively siding with the state’s position in detaining an individual. This process of judicial challenge takes more time than the legal period of detention itself (three to six months). Often, the detainee is re-arrested during this time with a fresh order which must yet again be challenged.
The Jammu and Kashmir Public Safety Act – an administrative detention law- is an effective tool to contain dissent by the Indian state in Kashmir. As has been demonstrated, the system works through a complex bureaucratic process which is sustained and nurtured by the executive and judicial hierarchy, through secrecy, impunity and non-accountability. The functionality of this system exposes the attitude of the Indian state vis-à-vis Kashmir. The system gives rise to the limitation of freedom and liberty for the people of Kashmir and has resulted in the loss of human lives, and added to the suffering to the everyday lives of Kashmiris detained under the law.